At approximately 9:30pm on 15 December 2012, Brian Lim suffered catastrophic injuries when he leapt from a vehicle driven by his wife, Ms Cho, in which he was a passenger.
Initial proceedings
Mr Lim commenced proceedings in the District Court of New South Wales against his wife, in negligence and claimed damages. He alleged that Ms Cho was negligent in failing to apply the brakes when she observed that he was about to exit the vehicle, that she failed to observe that he was in a position of peril, and failed to apply the brakes upon observing that he was about to exit the vehicle.
Ms Cho accepted that as the driver of the vehicle she owed a duty of care to Mr Lim as the passenger, however she disputed the scope of the duty.
One of the principal factual questions in dispute was the speed at which the vehicle was travelling when Mr Lim leapt from it, with Wilson DCJ finding that, based on the expert evidence, the vehicle was moving at a speed of 50 km/h. Further, that the brakes were not applied prior to Mr Lim leaping from the vehicle.
His Honour found that the duty owed by Ms Cho was to take reasonable care to avoid foreseeable and not insignificant risks of harm to Mr Lim. However that duty did not extend to protecting a person in the position of the Mr Lim from harm which is caused to himself. Further, there was no evidence that Ms Cho had any inkling prior to Mr Lim opening the door of the vehicle that he would leap from the moving vehicle.
His Honour Wilson DCJ dismissed Mr Lim’s claim.
On appeal
Mr Lim appealed the primary judge’s findings.
The court noted that Ms Cho was faced with completely unexpected action by Mr Lim, to which she responded immediately, with the entire episode taking place within a few seconds. The court found that there was no error in the primary judge’s finding that there was no breach of any duty owed by Ms Cho to Mr Lim.
Accordingly, the court dismissed Mr Lim’s appeal: Lim v Cho [2018] NSWCA 145
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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