Lim v Cho [2018] NSWCA 145

Lim v Cho [2018] NSWCA 145

On the assumption that the respondent owed a duty to avoid or minimise harm to the appellant arising from his own deliberate actions, the respondent's conduct was not unreasonable given the sudden emergency and absence of prior indication of the appellant's intentions. There was no error in the primary judge’s finding on breach or causation: it was speculative whether braking would have reduced the appellant's injuries. The appellant failed to prove breach of duty or causation on the balance of probabilities.

Parties
Appellant: Brian Lim by his tutor Kyung Ae Beak; Respondent: Eunkyung Cho
Jurisdiction
Australia
Judgment Date
09 July 2018
Procedural Posture
Appeal / Final Appellate Judgment
Outcome
Appeal dismissed
Legal Topics
Negligence, Duty of Care, Causation, Contributory Negligence, Rule in Jones V Dunkel
Torts Evidence Negligence Duty of Care Causation Contributory Negligence Rule in Jones V Dunkel

Case Brief

Summary, issues, holding and outcome

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Parties

Brian Lim by his tutor Kyung Ae Beak

Appellant

Eunkyung Cho

Respondent

Procedural Posture

Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Whether the respondent (driver) owed the appellant (passenger) a duty of care to prevent the appellant from harming himself by leaping from a moving vehicle
  2. 2 Whether the respondent breached any duty of care by failing to apply the brakes upon observing the appellant was about to exit the vehicle
  3. 3 Whether the appellant's injuries would have been less severe if the respondent had reduced the speed of the vehicle

Ratio Decidendi

On the assumption that the respondent owed a duty to avoid or minimise harm to the appellant arising from his own deliberate actions, the respondent's conduct was not unreasonable given the sudden emergency and absence of prior indication of the appellant's intentions. There was no error in the primary judge’s finding on breach or causation: it was speculative whether braking would have reduced the appellant's injuries. The appellant failed to prove breach of duty or causation on the balance of probabilities.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed.
  • Appellant to pay the respondent's costs of the appeal.