Motorists' duty to keep a proper lookout may extend to looking in

Authors: James Thompson & Andrew Gorman
Judgment Date: 9 July 2018
Citation: Lim v Cho (2018) NSWCA 145
Jurisdiction: New South Wales Court of Appeal (1)

Principles

• The scope of the duty of care owed by a motorist may extend to a duty to take care to avoid or minimise harm to a passenger resulting in the passenger’s own deliberate actions.
  
  
• Questions posed by section 5B (1) of the Civil Liability Act, 2002 (CLA) must be assessed prospectively and not with the wisdom of hindsight. 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.
  
  
• The fact that a 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.
  
  
• The rule in Jones v Dunkel does not enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called. The rule 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.

Background

The Plaintiff and Defendant, a married couple, were driving home from dinner with their two young children in the car. Following an argument, the Plaintiff opened the passenger door and jumped from the vehicle, sustaining catastrophic injuries.

The Plaintiff argued that his wife, as the driver of the vehicle, owed him a duty to exercise reasonable care and to control the vehicle 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. It was contended that the Defendant breached this duty because she failed to apply the brakes as soon as she observed that the Plaintiff had opened the passenger door. The Plaintiff did not have a history of self-harm or attempted suicide. Upon noticing that the door had been opened, the Defendant reached across to the Plaintiff in an attempt to grab him and told him to stop being silly. The Defendant applied the brakes after the Plaintiff leapt from the vehicle.

With respect to causation, the Plaintiff argued that if the Defendant had immediately applied the brakes, the vehicle would have been travelling more slowly than 50kph (the speed at which it had hitherto been travelling) at the moment the Plaintiff jumped from the vehicle. On this argument, but for the Defendant's negligence, the Plaintiff was likely to have suffered less severe injuries than he in fact sustained.

Decision below

The primary Judge (Wilson DCJ), in finding against the Plaintiff in the District Court, made the following findings:

1. The Defendant owed a duty to take reasonable care to avoid foreseeable and not insignificant harm to the Plaintiff, but the duty did not extend to protecting the Plaintiff from causing harm to himself;
   
   
2. In any case, the Plaintiff failed to prove that the Defendant breached her duty of care, and a reasonable person would not have engaged in emergency braking;
   
   
3. In any case, had the Defendant applied the brakes, the more likely inference is that the Plaintiff would have suffered injury of equal or almost equal proportion; and
   
   
4. If the above findings were incorrect, the Plaintiff was guilty of contributory negligence, and it was just and equitable to reduce damages by 100%.
   
   

The primary Judge also declined to draw an inference adverse to the Defendant by reason of her failure to give evidence in the District Court.

Court of Appeal Decision

Duty and Breach

The Court was prepared to accept that the duty owed by the Defendant could include a duty to take care to avoid or minimise harm to a passenger resulting in the passenger’s own deliberate actions.

Turning to breach, Sackville AJA reiterated the following well-established principles:

1. It is fundamental that the questions posed by section 5B (1) of the CLA must be assessed prospectively and not with the wisdom of hindsight. 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 (at [29]); and
   
   
2. 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 (at [30]).
   
   

In the present case, the Plaintiff submitted that his wife had a choice as to how she should respond to the Plaintiff's unexpected actions, and that she made the wrong choice. The Court found that to so characterise the alleged breach was to engage in hindsight reasoning, and the Plaintiff's argument that his injuries would have been less severe had the Defendant applied the brakes, showed 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.

The Court found that the Defendant's actions in the seconds between her husband opening the door and jumping from the vehicle, in circumstances where there was no evidence that she had any inkling he would do something as dangerous as leaping from a moving vehicle, were entirely reasonable. There was therefore no error in the primary Judge’s finding that, in the circumstances, a reasonable person in the Defendant's position would have applied the brakes rather than (as the Defendant did) attempted to prevent the Plaintiff acting in a dangerous and reckless manner.

Causation

The Court found that, on the primary Judge’s findings, it was difficult to see how the Defendant could have applied the brakes in time to reduce the speed of the vehicle below 50kph at the time the Plaintiff jumped. Even if a finding was made to the contrary, there was in any event no evidence of the injuries the Plaintiff was likely to have sustained if he jumped from the vehicle at a reduced speed, nor was there evidence comparing those likely injuries with those he ultimately sustained.

The Court found that there was no error in the primary Judge’s finding that it was a matter of mere “speculation” whether the Plaintiff's injuries were likely to have been less severe if the vehicle’s speed was reduced had the Defendant applied the brakes. The Plaintiff therefore failed to make out his case on causation.

Contributory negligence

Given the above findings reached on breach of duty and causation, the Court found that there was no occasion to consider the correctness of the primary Judge’s finding that, had breach and causation been established by the Plaintiff, damages should in any event be reduced by 100% on account of the Plaintiff's contributory negligence, in accordance with section 5S of the CLA.

Jones v Dunkel

At trial, the Plaintiff submitted that an adverse inference should be drawn against the Defendant by reason of her failure to give evidence. One of the necessary elements for the application of the rule in Jones v Dunkel is that the failure of a party to give evidence be ‘unexplained’. The primary Judge found that this precondition had not been satisfied in circumstances where any evidence that could have been given by the Defendant was in fact contained in statements made to police following the accident, and those statements had been tendered by the Plaintiff.

Although the Court considered that the fact that the Plaintiff tendered the Defendant's statements to police did not, of itself, necessarily make it inappropriate to apply the rule in Jones v Dunkel, it was necessary to appreciate the limits of the rule, namely:

1. That, assuming the necessary preconditions have been met, the rule 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;
   
   
2. The rule does not enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called;
   
   
3. Until the Plaintiff proves the facts from which an inference of negligence can be drawn, the Defendant is not called upon to say anything; and
   
   
4. More generally, no inference can be drawn unless evidence is given of facts requiring an answer.

In circumstances where the Plaintiff did not identify any evidence that indicated there was more than a few seconds between his opening the door and then jumping from the vehicle (which may have been expected to have been addressed in evidence from the Defendant), the Court found that the rule in Jones v Dunkel did not assist the Plaintiff.

Why this case is important

It is no longer accurate to assert that 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. Had there been evidence before the court in this case, establishing that the Plaintiff's injuries would have been less severe had the Defendant applied the brakes immediately, it is possible a breach of duty would have been made out. Insurers should be prepared to meet relevant bio-mechanical evidence in such cases. However, even if the evidence assists a Plaintiff, the ultimate test is whether, when confronted with an emergency scenario, the Defendant responded as a reasonable motorist would. That issue must be assessed prospectively and not with hindsight reasoning.

In view of the conclusions reached on breach of duty and causation, the Court of Appeal had no need to consider the correctness of the trial judge's finding of 100% contributory negligence. However, it is remains arguable that section 5S of the CLA can be used to defeat a claim arising in similar circumstances.

These principles apply also to claims for both damages and statutory benefits under the Motor Accident Injuries Act 2017. A Claimant in the Plaintiff's shoes would be entitled to statutory benefits regardless of fault. However, on application of section 3.11 and section 3.28 those benefits would cease after 26 weeks because he would likely be considered "most at fault".

The case also serves as a reminder that the rule in Jones v Dunkel has limited application. It does not enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called. 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. Unless a Plaintiff proves facts from which an inference of negligence can be drawn, the Defendant is not called upon to say anything. Moreover, no inference can be drawn unless evidence is given of facts requiring an answer.

(1) Leeming JA, Sackville AJA & Emmett AJA