Lim v Cho

1. [1]

   LEEMING JA: I agree with Sackville AJA.

2. [2]

   SACKVILLE AJA: This case is both unusual and tragic. The appellant suffered catastrophic injuries in December 2012 when, as the primary Judge found, he “leapt from” a vehicle in which he was a passenger. The vehicle, a 2008 Mercedes-Benz C200 Kompressor Avantgarde, was being driven by the respondent, the appellant’s wife.

3. [3]

   The appellant sued the respondent claiming (relevantly to the appeal) that she was negligent in failing to apply the brakes when she observed that the appellant was “about to exit the vehicle”. The primary Judge (Wilson DCJ) dismissed the appellant’s claim. [1] The appellant now appeals against the primary Judge’s decision.

4. [4]

   The primary Judge delivered an oral judgment after a two day hearing. The appellant did not give evidence (the hearing proceeded on the basis that he had no recollection of the circumstances in which he sustained injuries). The respondent also did not give evidence. Expert evidence was given by engineering experts with special expertise in biomechanics of traffic accident trauma (Mr Griffiths for the appellant and Associate Professor Anderson for the respondent).

5. [5]

   The principal factual question in dispute at the trial was the speed at which the vehicle was travelling when the appellant leapt from it. His Honour found that at that time the vehicle “was moving at a speed of 50 kilometres per hour or thereabouts”. In reaching this conclusion his Honour preferred the evidence of Professor Anderson over that of Mr Griffiths. This finding is not challenged by the appellant.

Legislation

1. [6]

   The Civil Liability Act 2002 (NSW) (CL Act) includes the following provisions:

2. [7]

   The Motor Accidents Compensation Act 1999 (NSW) (MAC Act) includes the following provisions:

Primary Judgment

1. [8]

   The primary Judge recorded a large number of matters that were not in dispute, as follows (the appellant is referred to as “the plaintiff” and the respondent as “the defendant”):

2. [9]

   The primary Judge considered the evidence relating to the speed of the vehicle and found that it was travelling at about 50 kph when the appellant leapt out.

3. [10]

   His Honour then considered the appellant’s criticism of the respondent’s failure to give evidence. The primary Judge considered that the failure was not unexplained:

4. [11]

   The primary Judge recorded that the respondent conceded that one matter about which an inference could be drawn was whether or not she applied the brakes before the appellant leapt from the vehicle. Since the respondent did not dispute that the brakes had not been applied, there was no need for the Court to draw an inference as to that matter.

5. [12]

   After recounting the parties’ submissions, the primary Judge expressed the view that on the evidence:

6. [13]

   The primary Judge noted that the respondent accepted that as the driver of the vehicle she owed a duty of care to the appellant as the passenger. However, the dispute was as to the scope of the respondent’s duty.

7. [14]

   His Honour found that the duty owed by the respondent was to take reasonable care to avoid foreseeable and not insignificant risks of harm to the appellant. That duty, in his Honour’s view, did not extend to protecting a person in the position of the respondent from “harm which is caused to himself”. In that connection, it was not necessary to make a finding as to the appellant’s intention except to find that:

8. [15]

   Having concluded that the duty of care owed by the respondent to the appellant did not extend to protecting the appellant from causing harm to himself, it was not necessary for the primary Judge to address breach. Nonetheless his Honour did so and made the following findings:

9. [16]

   Accordingly his Honour found that:

10. [17]

    The primary Judge briefly referred to the question of causation when considering whether the respondent breached a duty of care owed to the appellant. His Honour returned to causation later and found that the appellant had not satisfied the test of factual causation set out in s 5D of the CL Act. The primary Judge reasoned as follows:

11. [18]

    The primary Judge summarised his conclusion as follows:

12. [19]

    In case his Honour was mistaken about breach and causation, he addressed the question of contributory negligence. His Honour took into account ss 138 and 140 of the MAC Act and s 5S of the CL Act.

13. [20]

    His Honour considered that a reasonable person would not have leapt from a vehicle moving at 50 kph. On that basis, he found that the appellant was guilty of contributory negligence and that it was just and equitable to reduce damages by 100 per cent.

Reasoning

1. [21]

   Mr Deakin QC, who appeared with Mr Ryan for the respondent, accepted that the driver of a vehicle is under a duty to a passenger to exercise reasonable care and skill in the management of the vehicle and is liable if the passenger is injured as the result of the driver’s lack of care. [2] Mr Deakin submitted, however, that a driver owes no duty to prevent a passenger from harming himself or herself. Mr Deakin contended that the appellant’s driving of the vehicle was merely incidental to the appellant’s deliberate conduct and that any duty of care did not extent to taking steps to ameliorate the consequences of the appellant’s own conduct. This, so Mr Deakin argued, was a complete answer to the appeal.

2. [22]

   In some classes of case, such as those involving the duty of a motorist to other road users or a solicitor’s duty to a client, there is no real controversy as to the scope and content of the duty of care. It is therefore sufficient to formulate the duty as one requiring the exercise of reasonable care. However, as Mr Deakin correctly pointed out, cases that fall outside the recognised relationships giving rise to a duty of care a greater degree of specificity is needed in formulating the content of any duty that may be owed. [3]

3. [23]

   Mr Deakin submitted that the circumstances of the present case were highly unusual if not unique and that to determine whether a duty of care arises between a driver of a vehicle and a passenger of a vehicle who chooses to harm himself reference to general principle is required. It was necessary to place limits on the scope of the duty owed by a driver of a vehicle to a passenger who chooses to harm himself or herself. For this purpose Mr Deakin relied on the decision of the High Court in Stuart v Kirkland-Veenstra. [4] In that case the Court rejected an argument that police officers owed a duty of care to a person who threatened suicide. The person told the officers he had changed his mind but later the same day in fact committed suicide. The plurality declined to recognise that a person who knows that a second person is threatening self-harm owes a duty to the second person to take reasonable steps to prevent the harm occurring. [5] Mr Deakin submitted by analogy the driver of a vehicle owes no duty of care to a passenger who deliberately engages in conduct resulting in harm to himself or herself.

4. [24]

   The present case is different from Stuart v Kirkland-Veenstra. The primary Judge did not find that the appellant acted as he did because he intended to commit suicide or to harm himself. His Honour accepted that the appellant’s conduct was “stupid” and that his own actions brought about his catastrophic injuries. But that is not the same as a finding that the appellant deliberately leapt from the vehicle intending to inflict physical harm on himself.

5. [25]

   It is not necessary to consider whether the factual differences between Stuart v Kirkland-Veenstra and the present case are material for the purposes of determining whether the respondent’s argument should be accepted. I am content to proceed on the basis that the scope of the duty owed by the respondent to the appellant was wider than Mr Deakin suggested [6] and could include a duty to take care to avoid or minimise harm to a passenger resulting from the passenger’s own deliberate actions.

6. [26]

   In his oral and written submissions Mr Phillips SC, who appeared with Mr Robison for the appellant, contended that the respondent had a duty to exercise reasonable care and control of the vehicle of which she had charge to avoid or minimise the risk of harm to her passenger, including the risk of harm brought about by the passenger’s unexpected and deliberate conduct. Mr Phillips submitted that the primary Judge should have found that the respondent breached this duty of care because she failed to apply the brakes as soon as she observed that the appellant had opened the door of the vehicle. Had the respondent done so, the vehicle would have slowed down. Mr Phillips accepted that the appellant would still have been injured as the result of his decision to leave the moving vehicle, but (so he argued) the appellant was likely to have sustained less serious injuries.

7. [27]

   On the assumption that the respondent owed the appellant the duty of care identified by Mr Phillips, the appellant’s argument confronts two insuperable obstacles. The first is the primary Judge’s finding that the appellant acted reasonably when confronted with a sudden emergency and thus did not breach any duty of care she may have owed to the appellant. The second is the finding that even if the respondent had applied the brakes in the manner suggested by the appellant, it would have made no significant difference to the injuries the appellant sustained. No basis has been shown for overturning either of these critical findings.

8. [28]

   Whether the respondent breached any duty of care owed by her to the appellant requires consideration of the matters identified in s 5B of the CL Act. In particular, s 5B(1) provides that a person is not negligent in failing to take precautions against a risk of harm unless:

9. [29]

   It is fundamental that the questions posed by s 5B(1) of the CL Act must be assessed prospectively and not with the wisdom of hindsight. [7] The inquiry must attempt, after the event, to identify a reasonable person’s response to foresight of the risk of occurrence of the injury sustained by the plaintiff. While the assessment of what the reasonable person would have done to avoid the risk of harm must be made after the event, it seeks to identify the response of a reasonable person looking forward. [8]

10. [30]

    It is also fundamental that the fact that the particular injury to the plaintiff might have been avoided if the defendant’s response to a risk of harm had been different does not necessarily establish that the defendant breached his or her duty of care. To analyse the question of breach by reference to the possibility that a different response would have produced a different outcome is to engage in impermissible hindsight reasoning.

11. [31]

    This point is illustrated by the decision of the High Court in Derrick v Cheung. [9] In that case, the defendant’s vehicle struck an infant when she emerged suddenly between two parked cars. The driver was driving well within the speed limit. The High Court set aside a finding that the driver had been negligent: [10]

12. [32]

    In the present case, there was no evidence and no finding that the respondent had any inkling prior to the appellant opening the door of the vehicle that he would do something as dangerous as leaping from a moving vehicle. The primary Judge found that upon noticing that the door had been opened and that the appellant was beginning to move out of the vehicle, the respondent reached across to grab the appellant and told him not to be silly. His Honour also found that the words used by the respondent indicated that she did not consider, even at this point, that the appellant would actually do something as drastic as leaping from the vehicle.

13. [33]

    The findings made by the primary Judge demonstrate that the respondent was faced with completely unexpected action by the appellant, to which she responded immediately. Contrary to suggestions made by Mr Phillips, this was not a case where the respondent had the opportunity to consider which of two or more responses might be made to an emerging situation of danger. The primary Judge’s findings show that the entire episode took place within a few seconds.

14. [34]

    Mr Phillips submitted more than once that the respondent had a choice as to how she should respond to the appellant’s actions and that she made the wrong choice. But this is to engage in hindsight reasoning. Even if it can be said that the appellant’s injuries would have probably been less severe if the respondent had immediately applied the brakes (a proposition rejected by the primary Judge), this shows only that different conduct might have produced a different result. As the High Court observed in Derrick v Cheung, that is not the test for determining whether a defendant has breached a duty of care.

15. [35]

    Each case in which a plaintiff claims personal injuries damages by reason of the defendant’s negligence is dependent on its particular circumstances. Nonetheless the present case has some resemblance to Stuart v Walsh, [11] another case in which a driver was confronted with an emergency not of his or her own making.

16. [36]

    In Stuart v Walsh a truck driver was travelling at 80 kph, within the speed limit, on the Pacific Highway. The driver observed a cyclist in the breakdown lane about 65 to 90 metres ahead. Without warning the cyclist turned 90 degrees onto the carriageway into the path of the truck. Tobias AJA explained that: [12]

17. [37]

    In the present case, the respondent was faced with an even more extraordinary and unexpected situation that unfolded in a matter of a few seconds. Not surprisingly, at first she did not grasp that the appellant would act as recklessly as he did. Her immediate reaction to the situation with which she was confronted was to attempt to prevent the appellant leaving the vehicle by reaching for him and telling him not to be silly. As the primary Judge found, whether or not the respondent had an alternative course open, her actions in the fact of an unexpected emergency cannot be characterised as unreasonable. To put the matter in terms of the statute, there was no error in the primary Judge finding that, in the circumstances, a reasonable person in the respondent’s position would have applied the brakes rather than attempted to prevent the appellant acting in a reckless and dangerous manner.

18. [38]

    Mr Phillips did not suggest that the respondent should have applied the brakes at the same time as she attempted to grab the appellant in order to prevent him jumping from the vehicle. Even if such a manoeuvre was possible – as to which there was no evidence – it would not alter the position. The respondent’s actions in a sudden crisis not of her own making were not unreasonable in the circumstances she faced.

19. [39]

    The appellant submitted that the primary Judge erred in failing to draw an inference adverse to the respondent by reason of her failure to give evidence. Mr Phillips identified the issue in respect of which such an inference might be drawn to be whether the respondent had sufficient time between the appellant opening the door and jumping from the vehicle “to at least reduce the speed of the car or bring it to a stop”.

20. [40]

    The so-called rule in Jones v Dunkel [13] is that: [14]

21. [41]

    The fact that the appellant tendered the respondent’s statements to the police does not necessarily make it inappropriate to apply the rule in Jones v Dunkel. It is, however, important to appreciate the limits of the rule. It allows an inference that evidence not called by a party would not have assisted that party, but not that the evidence would have been adverse to that party. [15] Nor does the rule enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called. [16] Until the plaintiff proves facts from which an inference of negligence can be drawn, the defendant is not called upon to say anything. [17] More generally, no inference can be drawn unless evidence is given of facts requiring an answer. [18]

22. [42]

    Mr Phillips was invited to identify any evidence which might suggest that more than an exceedingly brief time elapsed between the moment the appellant opened the door of the vehicle and the moment he jumped out. Had Mr Phillips been able to do so, it may have been permissible to infer from the respondent’s failure to give evidence that the time between the two events was at the limits of the range suggested by the evidence. Whether that inference would have supported a finding that the respondent had sufficient time to attempt to grab the appellant and to apply the brakes is another question. But evidence indicating that there was any more than a few seconds between the two events might have strengthened the appellant’s case.

23. [43]

    Mr Phillips was not able to identify any such evidence. As his Honour indicated, the limited evidence adduced at the trial was consistent only with the finding that the lapse of time between the two events was no more than a very few seconds. For this reason the rule in Jones v Dunkel does not assist the appellant.

24. [44]

    The appellant bore the burden of proving that the respondent’s breach of duty was a necessary condition of the harm he sustained. [19] His case at trial was that if the respondent had immediately applied the brakes, the vehicle would have been travelling more slowly than 50 kph at the moment the appellant jumped from the vehicle. On this argument, but for the respondent’s negligence, the appellant was likely to have suffered less severe injuries than he in fact sustained.

25. [45]

    The primary Judge appeared to accept the evidence given by the experts that a typical “perception response” time was about 1.5 seconds. However, both experts acknowledged that perception times can vary depending on the circumstances. Professor Anderson agreed that the general range of perception times was one to two seconds, but added a qualification:

26. [46]

    The primary Judge found that the entire process of braking to a stop, assuming a reasonably swift perception response, would have taken in the order of 2.5 to 3.5 seconds. During this time the vehicle would have travelled between 28 and 48 metres before coming to a halt. In the light of Professor Anderson’s evidence that the vehicle would travel from 14 to 20 metres before stopping once the brakes were applied, the primary Judge’s finding accurately reflects the evidence.

27. [47]

    The only evidence Mr Phillips specifically identified that supports the appellant’s case on causation consists of general comments made by the experts. Both accepted the proposition that the faster a vehicle is travelling the greater the likelihood that a person jumping from the vehicle will suffer serious injuries. Professor Anderson accepted the converse proposition that the lower the speed the less the likelihood of severe injuries.

28. [48]

    On the primary Judge’s findings, it is difficult to see how the respondent could have applied the brakes in time to reduce the speed of the vehicle below 50 kph at the moment the appellant jumped. There was nothing in the contemporaneous notes taken by police on which those findings were made to suggest that the appellant hesitated between the moment he opened the door and the moment he jumped from the vehicle. The police report noted that the Mercedes vehicle had door locks but stated that these could be disengaged while the vehicle was in motion.

29. [49]

    In any event, there was no evidence as to the nature of the injuries the appellant was likely to have sustained if he had jumped from the vehicle when he was travelling at a particular speed less than 50 kph. Nor was there evidence comparing the injuries the appellant in fact sustained with those he might have sustained had he jumped from the vehicle when it was travelling at a given lower speed.

30. [50]

    The primary Judge’s language, perhaps not surprisingly in an oral judgment, was somewhat imprecise. His Honour referred to the effect of braking on the appellant’s injuries as a “question of degree and speculation, rather than certain[t]y”. Of course, the appellant did not have to prove his case as a matter of certainty, but only on the balance of probabilities. The primary Judge’s conclusion was also framed in a manner suggesting that the respondent, rather than the appellant, bore the burden of proof on the issue of causation. This framed the issue in term unduly favourable to the appellant.

31. [51]

    Despite these errors, the primary Judge did not err in finding that it was a matter of “speculation” whether the appellant’s injuries were likely to have been less severe had the speed of the vehicle been reduced below 50 kph at the moment the appellant jumped onto the road. The appellant did not make out his case on causation.

32. [52]

    In view of the conclusions reached on breach of duty and causation, there is no occasion to consider correctness of the primary Judge’s finding that any damages should be reduced by 100 per cent on account of the appellant’s contributory negligence.

Orders

1. [53]

   The appeal must be dismissed. The appellant must pay the respondent’s costs of the appeal.

2. [54]

   EMMETT AJA: In December 2012, the appellant, Mr Brian Lim, leapt from a motor vehicle that was travelling in Barker Road, Strathfield at approximately 50 kph. He suffered catastrophic injury as a consequence. At the time, the vehicle was driven by the respondent, Ms Eun Kyung Cho. At the time, Mr Lim and Ms Cho were married to each other.

3. [55]

   Mr Lim sued Ms Cho in the District Court of New South Wales claiming damages for the injuries that he suffered. He alleged that the injuries would not have occurred but for Ms Cho’s negligence. He said that she breached a duty of care that she owed to him in that she:

4. [56]

   Ms Cho admitted that, as the driver of the vehicle in which Mr Lim was a passenger, she had a duty of care to avoid exposing Mr Lim to risk of personal injury arising out of the use of the vehicle. However, she denied that she had breached any duty of care owed by her to Mr Lim and in particular denied that she was negligent in the respects alleged in the Statement of Claim. The quantum of the damages to which Mr Lim would have been entitled, subject to contributory negligence, was determined by agreement between the parties.

5. [57]

   After a trial before a judge of the District Court of New South Wales (the primary judge), the primary judge entered a verdict for Ms Cho and ordered Mr Lim to pay her costs of the proceedings on the indemnity basis on and from a date in November 2016 and on the ordinary basis prior to that date. The primary judge accepted that Ms Cho owed a duty to Mr Lim to take reasonable care to avoid foreseeable and not insignificant risks of harm to him. However, his Honour considered that the duty of care of a reasonable person in the position of Ms Cho did not extend to protecting a person in the position of Mr Lim from harm caused to himself.

6. [58]

   The primary judge found that there was nothing about the manner of driving the vehicle by Ms Cho that was negligent or that in any way contributed to the injuries suffered by Mr Lim. His Honour found that a reasonable person in the position of Ms Cho would not have taken the precaution alleged on behalf of Mr Lim of engaging the vehicle in emergency braking in circumstances where the vehicle was only a short distance from their home and there were two very young children seated in the rear of the vehicle.

7. [59]

   By Notice of Appeal filed 5 October 2017, Mr Lim has appealed from the orders made by the primary judge. The Notice of Appeal asserts that his Honour erred by:

8. [60]

   I have had the advantage of reading in draft form the proposed reasons of Sackville AJA. I agree with his Honour that the primary judge did not err in concluding that there was no breach of any duty owed by Mrs Cho to Mr Lim. I agree with the orders proposed by Sackville AJA.