On 9 July 2018, the NSW Court of Appeal handed down its decision in the matter of Lim v Cho [2018] NSWCA 145, finding that a driver’s duty of care may in some circumstances extend to a duty to take care to avoid or minimise harm to a passenger resulting from that passenger’s own deliberate actions.

FACTS

The appellant (the plaintiff) and the respondent (the defendant) were a young, married couple who on 15 December 2012 were travelling home from dinner, which had been somewhat interrupted by an argument. The defendant was driving, with the plaintiff being her front passenger and the couple’s two children (aged two and four years) seated in the rear of the vehicle. The argument between the plaintiff and defendant continued during the trip home, before the plaintiff suddenly opened the front passenger side door and ‘leapt’ from the vehicle, giving rise to catastrophic injuries.

Relevantly, the following was not in dispute between the parties:

• The plaintiff did not suffer from depression, and did not have a history of self-harm or attempted suicide
• Upon noticing that the plaintiff had opened the front passenger door, the defendant reached across, attempting to grab the plaintiff. (The evidence did not allow a finding as to whether or not the defendant actually made contact with the plaintiff.)
• The defendant told the plaintiff to ‘stop being silly’, after which the plaintiff leapt from the vehicle
• The defendant did not apply the brakes of the vehicle until after the plaintiff had exited the vehicle.

AT FIRST INSTANCE

Plaintiff’s allegations

With reference to the elements of negligence, it was alleged on behalf of the plaintiff that the defendant:

• Owed the plaintiff a duty of care to protect him from causing harm to himself
• Breached that duty of care by (among other things) failing to apply the brakes when she observed that the plaintiff was ‘about to exit the vehicle’.

It was argued that had the defendant applied the brakes at that time, the vehicle would have been travelling at a speed which was slower than 50 km/h at the moment the plaintiff leapt from the vehicle, and thus he would have sustained less severe injuries.

The plaintiff also submitted that the primary judge ought to draw a Jones v Dunkel inference against the defendant, by reason of her failure to give evidence at the hearing, and find that whatever evidence she could have given would not have assisted her defence. The plaintiff – who had suffered brain damage and had no reliable memory of the accident – also did not give evidence at the hearing.

Primary judgment

In the District Court of NSW on 5 July 2017, the primary judge entered a verdict for the defendant.

His Honour preferred the opinion of the defendant’s biomechanical engineer (Associate Professor Anderson) over that of the plaintiff’s expert (Mr Griffiths), and found that at the time the plaintiff leapt from the vehicle, it was travelling at a speed of 50 km/h per hour ‘or thereabouts’.

His Honour also found that:

• While the defendant did owe the plaintiff a duty to take reasonable care to avoid foreseeable and not insignificant harm, the scope of that duty did not extend to protecting the plaintiff from ‘harm which is caused to himself’.
• Even if the defendant’s duty extended to protecting the plaintiff from causing harm to himself, the plaintiff failed to establish that a reasonable person in the position of the defendant would have engaged in emergency braking, as alleged on his behalf.
• Had the defendant applied the brakes, and the plaintiff continued in his effort to exit the vehicle, the plaintiff would have suffered an injury of equal, or almost equal, proportion.
• Finally, and in case he be wrong regarding breach and causation, his Honour addressed the issue of contributory negligence and found that a reasonable person in the plaintiff’s position would not have leapt from a vehicle travelling at 50 km/h. Further, that it would have been just and equitable to reduce the plaintiff’s damages (if any) by 100%.

His Honour also dismissed the plaintiff’s submission that there ought be an adverse inference drawn against the defendant in accordance with the rule in Jones v Dunkel, due to her failure to give evidence at the hearing, largely due to the plaintiff adopting the defendant’s versions of events (provided to police and ambulance officers) as part of his case. (As he had no memory of the accident, he had to lead some evidence as to what occurred, and it came from tendering the defendant’s statements.)

THE APPEAL

The plaintiff appealed the entirety of the primary judge’s findings, except in relation to the speed at which the vehicle was travelling at the relevant time. In dismissing the appeal, the Court (per Sackville AJA, Leeming JA and Emmett AJA agreeing) held as follows:

Duty of care

Seeking to distinguish the decision of the High Court of Australia in Stuart v Kirkland-Veenstra (2009) 237 CLR 215, in which the argument that police officers owed a duty of care to a person who threatened suicide was rejected, the Court found that the scope of the duty owed by a driver could include a duty to take care to avoid or minimise harm to a passenger resulting from that passenger’s own deliberate actions. Only relatively brief reasons were provided by the Court for this (arguably quite significant) finding.

Breach of duty

In addressing s5B(1) of the Civil Liability Act 2002 (NSW) (the CLA) Sackville AJA (with whom Leeming JA and Emmett AJA agreed) noted the following:

• The questions posed by that section must be assessed prospectively, and not with the wisdom of hindsight. That is to say, it seeks to identify the response of a reasonable person, ‘looking forward’.
• As illustrated by the decision of the High Court of Australia in the matter of Derrick v Cheung [2001] HCA 48, it is impermissible to analyse the question of breach of duty by reference to the possibility that the plaintiff’s injury may have been avoided, had the defendant’s response been different.

Accordingly, the plaintiff’s submission that the defendant had a choice as to how she should respond to his opening the door of the vehicle, and that she made ‘the wrong choice’, sought to engage in impermissible hindsight reasoning.

Ultimately, the Court found that the defendant’s reaction to the ‘extraordinary and unexpected situation’ – that is, by attempting to grab the plaintiff and telling him not to be silly – was not unreasonable in all of the circumstances. As such, there was no error in the primary judge’s finding that the plaintiff had failed to establish that a reasonable person in the defendant’s position would have applied the brakes.

Causation

At first instance, the plaintiff’s case was that if the defendant had immediately applied the brakes, the vehicle would have been travelling at a speed which was less than 50 km/h at the moment the plaintiff leapt from that vehicle. Further, the plaintiff’s case was that but for the defendant’s negligence, the plaintiff was likely to have suffered less severe injuries than those actually sustained.

Importantly, the plaintiff did not serve any evidence which specifically addressed the nature of the injuries he was likely to have sustained if he had jumped from the vehicle when it was travelling at a lesser speed than 50 km/h; nor was there any evidence comparing the injuries he did sustain with those he may have sustained, but for the defendant’s negligence.

While the Court made certain comments as to the imprecision of some of the primary judge’s language in expressing his findings as to causation, overall it was held that the primary judge did not err in finding that it was a matter of ‘speculation’ as to whether or not the plaintiff’s injuries were likely to have been less severe had the speed of the vehicle been reduced at the relevant time. That is to say, the plaintiff had not established on the balance of probabilities that the defendant’s breach of duty of care was a necessary condition of the harm he sustained, as required by ss5D(1) and 5E of the CLA.

Contributory negligence

In light of the findings with respect to breach of duty and causation, the Court did not address the primary judge’s finding (in the event he were wrong on primary liability) that damages ought be reduced by 100%, on account of the plaintiff’s contributory negligence.

Jones v Dunkel

The plaintiff submitted that the issue in relation to which an inference adverse to the defendant should have been drawn by the primary judge, by reason of her failure to give evidence, was whether or not the defendant had sufficient time between the plaintiff opening the door and jumping from the vehicle, ‘to at least reduce the speed of the car or bring it to a stop’.

In finding that the rule in Jones v Dunkel did not assist the plaintiff in the present matter, the Court noted that the fact the plaintiff tendered the defendant’s statements as part of his own case did not of itself make it inappropriate to apply the rule. However, the Court did see fit to clarify the ‘limits’ of the rule, in its application to matters such as the present, as follows:

• 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.
• It does not enable a party to fill gaps in the evidence.
• Until the plaintiff proves facts from which negligence can be drawn, the defendant is not called upon to say anything.
• No inference can be drawn unless evidence is given of facts requiring an answer.

In the present case, the plaintiff was unable to identify any evidence which might suggest that more than ‘a very few seconds’ had elapsed between the opening of the car door, and the moment the plaintiff leapt out of the vehicle. Had the plaintiff been able to do so, the Court considered it may have been permissible to infer from the defendant’s failure to give evidence that the time between those two events was at the limits of the range suggested by the evidence. However, in the present case, the evidence was consistent that only an exceedingly brief period of time had elapsed between the plaintiff opening the door and exiting the vehicle. Accordingly, the rule in Jones v Dunkel was of no assistance to the plaintiff.

CONCLUSION

Perhaps the most significant finding arising out of this case is that a driver’s duty of care can extend to a duty to take care to avoid or minimise harm to that passenger, resulting from that passenger’s own deliberate actions. Although it may have the effect of widening the scope for claims by ‘reckless’ passengers, this decision also demonstrates the importance of giving consideration to the whole of the factual circumstances surrounding each case when deciding how a reasonable person in the position of a defendant would have reacted, and the necessity to approach that issue prospectively, rather than with the benefit of hindsight.

This decision also highlights the potential importance of biomechanical evidence in cases where either party seeks to advance an argument that if the accident occurred at a slower speed, the severity of a plaintiff’s injuries would have been less severe. The plaintiff’s failure to obtain such evidence led the Court to find that he had not established causation to the requisite standard.

Finally, the Court has provided useful revision about the rule in Jones v Dunkel, and specifically the limitations of that rule.

We note that the plaintiff in this matter would have been entitled to statutory benefits (including for wage loss) on a ‘no fault’ basis for at least the first 26 weeks following the accident, had this claim been covered by the Motor Accidents Injuries Act 2017 (NSW).

Further information / assistance regarding the issues raised in this article is available from the author, Gabrielle Watts, Senior Associate, Sydney or your usual contact at Moray & Agnew.