Lim v Cho

(2018) 84 MVR 514; [2018] NSWCA 145

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Breach of duty
4. › Response to sudden emergency
5. › Whether driver's failure to brake when passenger opened door of moving vehicle was unreasonable
6. › Whether breach inquiry must be prospective not with hindsight
7. › Civil Liability Act 2002 (NSW), ss 5B, 5C
1. Torts
2. › Negligence
3. › Causation
4. › Factual causation
5. › Whether failure to brake was necessary condition of harm
6. › Whether injuries would have been less severe at reduced speed
7. › Burden of proof on plaintiff
8. › Civil Liability Act 2002 (NSW), ss 5D, 5E
1. Torts
2. › Negligence
3. › Duty of care
4. › Scope of duty
5. › Whether driver owes duty to prevent passenger from harming himself or herself by deliberate conduct
6. › Stuart v Kirkland-Veenstra distinguished
1. Evidence
2. › Rule in Jones v Dunkel
3. › Failure of party to give evidence
4. › Whether adverse inference available where party tendered absent witness's prior statements
5. › Whether evidence adduced required an answer

Quick Take

A driver confronted with a sudden and unexpected emergency created by a passenger's reckless conduct is not required to engage in emergency braking rather than attempting to physically restrain the passenger, and the breach inquiry must be prospective rather than conducted with hindsight.