Asim v Penrose - [2010] NSWCA 366

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Asim v Penrose & Anor [2010] NSWCA 366

HEARING DATE(S): 27 October 2010
28 October 2010

JUDGMENT DATE:
21 December 2010

JUDGMENT OF: Tobias JA at 1; Macfarlan JA at 214; Young JA at 215

DECISION: (a) Appeal allowed.
(b) The First Respondent’s cross-appeal allowed in part.
(c) Set aside Orders 1 to 4 made by Hoeben J on 12 November 2009.
(d) There be a verdict in favour of the Cross Appellant against the Second Cross Respondent with damages to be assessed.
(e) There be a verdict in favour of the Appellant against the First Respondent.
(f) The First Respondent to pay the costs of the Appellant at first instance.
(g) The Second Respondent to pay costs of the First Respondent at first instance, such costs to include the costs of the Appellant which the First Respondent has been ordered to pay pursuant to Order (f) hereof.
(h) The Second Respondent to pay the costs of the Appellant of the appeal.
(i) The Cross-Appellant to pay the costs of the First and Second Cross-Respondent with respect to the cross appeal.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: APPEAL – civil – evidence – whether conclusion supported by evidence - APPEAL – civil – fact finding – competing evidence – lay opinion – how plaintiff became attached to culpable taxi – situation at taxi rank immediately before incident - EVIDENCE – proof – circumstantial evidence – competing inferences – whether driver most likely to have proceeded to taxi rank rather than by-passed it – each inference of equal probability - EVIDENCE – proof – onus – onus on Nominal Defendant to establish taxi was culpable taxi - EVIDENCE – proof – standard of proof – civil – application of Briginshaw standard - TORTS – negligence – contributory negligence – motor accident - TORTS – negligence – liability – motor accident – whether taxi was culpable taxi

LEGISLATION CITED: Civil Liability Act 2002
Evidence Act 1995
Motor Accidents Compensation Act 1999
Passenger Transport (Taxi-cab Services) Regulation 2001
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Blacktown City Council v Hocking [2008] NSWCA 144
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v R (No 2) (1984) 153 CLR 521
Doney v R (1990) 171 CLR 207
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Holloway v McFeeters (1956) 94 CLR 470
Jones v Dunkel (1959) 101 CLR 298
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Luxton v Vines (1952) 85 CLR 352
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Penrose v Nominal Defendant & Anor [2009] NSWSC 1187
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Warren v Gittoes [2009] NSWCA 24
Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85

PARTIES: Mohamad Ramzan Asim
Laurence Howard Penrose by his tutor Kevin Penrose
The Nominal Defendant

FILE NUMBER(S): CA 2005/269464

COUNSEL: A: D Grieve QC / T Clarke
1R: K Rewell SC / M Cleary
2R: I D Roberts SC / D R J Toomey

SOLICITORS: A: Vardanega Roberts, Sydney
1R: Cohen & Krass, Sydney
2R: McCourts solicitors, Pyrmont

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2005/20384

LOWER COURT JUDICIAL OFFICER: Hoeben J

LOWER COURT DATE OF DECISION: 12 November 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Penrose v Nominal Defendant & Anor [2009] NSWSC 1187

CA 2005/269464
SC 2005/20384

TOBIAS JA
MACFARLAN JA
YOUNG JA
Tuesday 21 December 2010

MOHAMAD RAMZAN ASIM v LAURENCE HOWARD PENROSE & ANOR

Judgment

1 TOBIAS JA: At 4.45am on Sunday 25 January 2004, the first respondent (the plaintiff) suffered catastrophic injuries in a motor accident in Wheat Road, Cockle Bay. He sustained severe head injuries including irreversible brain damage and is, essentially, a tetraplegic.

2 As Hoeben J, the primary judge, observed at [2] of his reasons, there was little dispute as to the general circumstances in which the accident occurred. The plaintiff was attempting to get into a taxi at the Wheat Road taxi rank when it drove away (the culpable taxi). He either held on to its roof rack or otherwise became attached to it as it commenced to move. He remained attached to it whilst it travelled approximately 300 metres along Wheat Road when he was dislodged from it as it negotiated a speed hump and fell to the roadway (the incident).

3 Enquiries were made on behalf of the plaintiff to identify the owner and driver of the culpable taxi, but those enquiries were unsuccessful. Accordingly, proceedings were instituted by the plaintiff against the second respondent (the Nominal Defendant) pursuant to s 34 of the Motor Accidents Compensation Act 1999 (the MAC Act). The Nominal Defendant admitted for the purposes of that provision that due enquiry and search had been made to establish the identity of the taxi concerned.

4 Sometime later, enquiries by the Nominal Defendant produced some evidence from which it was sought to be inferred that taxi T7154 (T7154) was the culpable taxi. It was common ground that at the time of the incident that taxi was being driven by a Mr Ravinder Singh Rana (Mr Rana). On receiving this information the plaintiff by an Amended Statement of Claim filed 13 November 2008, added the appellant (Mr Asim) to the proceedings. Mr Asim was the owner of T7154 at the time of the incident. Mr Rana, as the driver of T7154 at the time, was taken to be the agent of Mr Asim acting within the scope of his authority in relation to that vehicle pursuant to s 112 of the MAC Act.

5 It was common ground that the plaintiff’s injuries were caused by the negligence of the driver of the culpable taxi. It was further common ground that the plaintiff was entitled to succeed either against Mr Asim or the Nominal Defendant. The central issue before the primary judge therefore was whether T7154 was, on the balance of probabilities, the culpable taxi. If it was, the plaintiff was entitled to a verdict against Mr Asim. Otherwise, he was entitled to a verdict against the Nominal Defendant. A secondary issue was whether the plaintiff was guilty of contributory negligence.

6 His Honour found that the culpable taxi was, in fact, T7154. On 12 November 2009 he ordered that there be a verdict in favour of the plaintiff against Mr Asim with damages to be assessed and that Mr Asim pay the plaintiff’s costs. Having so found, it automatically followed that there was a verdict in favour of the Nominal Defendant against the plaintiff. His Honour therefore made an order that the plaintiff pay the costs of the Nominal Defendant. He then made a Bullock order with respect to those costs.

7 The primary judge also found that the plaintiff was guilty of contributory negligence, which he assessed at 10%: Penrose v Nominal Defendant & Anor [2009] NSWSC 1187.

8 Mr Asim appeals to this Court against the verdict entered by the primary judge against him in favour of the plaintiff. He also appeals against his Honour’s assessment of the plaintiff’s contributory negligence at 10%. He submits that an apportionment of 50% should be substituted. The Nominal Defendant resists so much of Mr Asim’s appeal that seeks to overturn the verdict entered against him but does not seek, irrespective of the success or otherwise of the appeal, to disturb the primary judge’s finding of 10% contributory negligence on the part of the plaintiff.

9 On the other hand, the plaintiff cross-appeals against his Honour’s finding of 10% contributory negligence submitting that he was in error in finding that the plaintiff was guilty of contributory negligence at all. He also defensively cross-appeals against the primary judge’s verdict in favour of the Nominal Defendant on the basis that if the appeal is successful, there must be a verdict in favour of the plaintiff against the Nominal Defendant. It is common ground that in the event that Mr Asim’s appeal succeeds, there must be such a verdict as well as an order that the Nominal Defendant pay the plaintiff’s costs.

10 It is further common ground that in those circumstances, there should be a verdict for Mr Asim against the plaintiff and an order that the plaintiff pay Mr Asim’s costs, but that there be a Bullock order with the result that those costs be paid by the Nominal Defendant.

THE ISSUE OF LIABILITY

(1) The configuration of the relevant roads in the Cockle Bay area and the CCTV footage of them

11 At [24] of his reasons the primary judge acknowledged the importance of understanding the configuration of the road network where the incident took place. He then set out a description taken from the report of a Mr Keramidas, a traffic engineer retained by the plaintiff, and which it is convenient to set out in relevant detail:

“Wheat Road is essentially a service road, providing access to the rear of commercial and retail premises at Cockle Bay Wharf. The roadway runs north/south, is paved and about 3.5 metres wide.

There is provision for a single lane of traffic being northbound only, with a number of loading bays and restricted parking on the western side of the roadway. In total, Wheat Road is only about 400 metres in length from end to end. The speed zone for the roadway was found to be 20km/h and there were three Watts profile speed humps situated along its length, acting as physical obstacles to higher speeds …

Along the length of the roadway there were a number of CCTV cameras noted, which appear to have been the source of the footage that the author was asked to assess.

Key features relevant to the assessment of matters depicted on the CCTV footage and relevant to the vehicle’s motion were identified and include the following:

1. There is a ‘turnout’ from Wheat Road at its southern end, which provides among other things a taxi rank. The width of the turnout was found to be approximately 6.5 metres.

2. There are two pedestrian ramps leading down from the paved area to the roadway within the turnout, with the southern most of those being the area where the start of the incident sequence took place.

3. The distance from the southern pedestrian ramp to the Wheat Road intersection was about 29 metres. The intersection was found to be controlled by means of the ‘Stop’ sign and control bar. Several signs were located at the northern end of the turnout apart from the ‘Stop’ sign, which included a symbolic ‘Speed Humps Ahead’ sign, and a ‘No Right Turn’ sign.

4. Once on the roadway proper, a nominal width of 3.5 metres was available to northbound traffic, while just north of the entry onto Wheat Road, there was a 20km/h speed zone sign and a symbolic ‘One Way’ sign.

5. Further north, approximately 104.5 metres north of the 20km/h speed zone sign is the first of the three speed humps. Just to the north of the first speed hump there is also a slight curvature or ‘kink’ to the roadway to the left.

6. …

7. The second speed hump was located just past the ‘kink’ in the roadway, about 25 metres north of the end of the first speed hump. This second speed hump was found to be less severe than the first and was partially embedded in the asphalt. …

8. Beyond the second speed hump, the roadway exhibits a slight ‘zigzag’ character as it passes beyond the buildings associated with Cockle Bay Wharf and heads towards the rear of the Sydney Aquarium.

9. Beyond the ‘zigzag’ the roadway follows a left horizontal bend of about 300 metres radius, leading to the third of the speed humps.

10. About 134 metres north of the second speed hump was the third and most severe speed hump. Also associated with this speed restricting device was a symbolic ‘speed hump’ sign on the western side of the road.

11. The final segment of relevance was the location of a grate about 16 metres north of the third speed hump being the area adjacent to which the plaintiff appears to have come to rest.”

12 It will be noted that Mr Keramidas relied upon footage from seven CCTV cameras located in the subject area. His Honour described the location of those cameras and the exhibits which contained relevant footage taken therefrom which depicted the culpable taxi in the following paragraphs of his reasons:

“29. The CCTV footage was sourced from seven cameras. Exhibit F was a DVD with footage taken from camera 103 [also referred to as Camera K1]. This depicted the northern part of the taxi rank and that part of the turnout leading into Wheat Road. It was positioned near and above the southern end of the taxi rank facing approximately northeast. It showed the taxi leaving the turnout and turning left into Wheat Road with the plaintiff attached. The taxi is shown to apply its brakes before turning into Wheat Road. Only the rear and nearside of the taxi were shown.

30. Exhibit G was a DVD with footage from camera 44 [also referred to as Camera K2]. Camera 44 was located outside the security office in Wheat Road, approximately 100-150 metres to the north of where the turnout from the taxi rank entered Wheat Road. This camera did not cover a fixed location but panned around so that various parts of Wheat Road and Harbour Street were depicted with the camera providing close up and distance views. It showed the taxi with the plaintiff attached to it. Because of the movement of the camera, the taxi and the plaintiff appeared only briefly and only the rear of the taxi was shown.

31. Exhibit H was a DVD with footage from camera 52 [also referred to as Camera K3]. This camera was located further down Wheat Road, approximately 50 metres to the north of camera 44. This camera was facing towards the north and showed the rear of the taxi with the plaintiff attached.

32. Exhibit K was a VHS videotape which contained footage from four cameras located in Wheat Road. Camera K4 was located under the freeway, K5 near Cockle Bay, K6 under the monorail and K7 outside the aquarium. The reference to ‘K’ is the reference to the location of these cameras as described in the report of Mr Keramidas. The footage from these cameras is of very poor quality. The footage from camera K6 is important because it provides the only frontal view of the taxi. The taxi with the plaintiff attached can be seen approaching the camera.”

13 The contents of these exhibits were usefully collected by Mr Bailey, the consultant engineer retained by Mr Asim, into a compilation of footage which became Exhibit 2D(7). That exhibit was a slightly enhanced version of Exhibits F, G and H. For the purposes of the hearing, Exhibit 2D(7) ran for some 86 minutes but for the purposes of the appeal Mr Bailey condensed that footage to 18 minutes being that relevant to the issues on the appeal.

14 It is necessary to further add to Mr Keramidas’ description of the relevant road configuration. A taxi intending to travel directly to the Darling Harbour area from Regent Street, Redfern/Surry Hills would relevantly proceed down George Street to the intersection of George and Hay Streets. It would then turn left into Hay Street and then right into Harbour Street. It would then travel past the Sydney Entertainment Centre, cross over the intersection of Harbour, Pier and Goulburn Streets, and travel past the Chinese Gardens to the point at Darling Walk where Harbour Street splits into two separate lanes, one travelling north and the other travelling south. The northbound lane then proceeds beneath the overpass to the immediate south of the IMAX Theatre to a point where there is, in effect, a left-hand slip lane that leads into Wheat Road and to the Wheat Road taxi rank.

15 In the event that a taxi driver decided not to divert from Harbour Street into the Wheat Road taxi rank but to continue along Harbour Street, the driver could still enter Wheat Road via a slip lane approximately 20 metres north of the head of the taxi rank. He or she would then proceed along Wheat Road (which was only one lane wide) past the Aquarium to a point (being the intersection of Wheat Road with King Street) where Wheat Road becomes Shelley Street. Shelley Street is two-way as is King Street and continues up to and past its intersection with Erskine Street. Furthermore, opposite where Harbour Street passes the Aquarium there is what was referred to in the evidence as the Erskine Street off-ramp (the ES off-ramp) which is located approximately 100 to 120 metres south of the intersection of Wheat Road, Shelley Street and King Street.

16 It was the Nominal Defendant’s case, accepted by the primary judge, that T7154 proceeded from its last known recorded location in Regent Street approaching Queen Street, Chippendale to Cockle Bay via Harbour Street. It then turned from that street into Wheat Road and joined a queue of vacant taxis at the Wheat Road taxi rank. When it had progressed to being the second taxi from the head of the rank, the plaintiff attempted to enter the taxi which then moved off with the plaintiff attached to it in the manner described in more detail below. On the other hand, it was Mr Asim’s case that T7154 never entered Wheat Road but did enter Shelley Street either via the ES off-ramp or by one of two other possible routes, namely, via the Western Distributor or Erskine Street. I shall return to these issues below.

17 It would be an understatement to say that the quality of the CCTV footage from all cameras was poor. The primary judge so found at [35] and [52] of his reasons. Because of that fact, and as will appear, I find it difficult to accept some of Mr Asim’s submissions based on that footage. On the other hand, there are aspects of that footage that make it difficult to accept some of his Honour’s findings.

18 Before leaving the present topic it is relevant to observe that Camera 44 or K2 was located approximately 100 metres to the north of the head of the taxi rank and approximately 30 metres to the south of the first speed hump referred to by Mr Keramidas in paragraph 5 of his report extracted at [11] above. The footage from that camera was relied upon by Mr Asim for the purpose of establishing that T7154 did not enter Wheat Road but remained in Harbour Street and, on one possibility, took the ES off-ramp to enter Shelley Street. It was common ground that Camera K2 was the only camera which panned Harbour Street to the north of its location but that it did not do so continuously. It was established from that camera’s footage that between 4:32:54am and 4:47:57am it did not provide a view of that part of Harbour Street between Camera K2 and the ES off-ramp for a total of 6 minutes and 45 seconds or 22 seconds per cycle. It was during that 15 minute and 3 second period that the incident occurred. Consequently, the relevant part of Harbour Street was not the subject of CCTV footage for 45% of the relevant period.

19 In his report of 4 March 2009, Mr John Lambert, a mechanical engineer called on behalf of the plaintiff, when speaking of Camera 44 (or K2) said this (at Blue 3/1030):

“In the period from 4:38:43 to 4:49:00 the camera (being camera 44) goes through a repetitive cycle of rotating counter clockwise to look back up the single lane [Wheat Road], then rotate[s] counter clockwise and downwards to follow the lane, then zooms into the distance in the original direction, and then zoom[s] back to the image above. Over this period it is unlikely that any taxis in the single lane were missed, but the adjacent road [Harbour Street] could not be seen for 6 minutes and 45 seconds. …

Based on 12 taxis being observed on the adjacent road [Harbour Street], the writer estimates that around 10 more taxis were missed travelling along that road.”

20 Mr Lambert was cross-examined to suggest that his estimate of 10 missed taxis was very conservative. He responded that it was his best estimate based on the information available. He would not agree that more than 10 taxis might have travelled along Harbour Street during the 6 minutes and 45 seconds that Camera K2 was not focussed on Harbour Street. However, Mr Asim contended that T7154 might have been one of the 22 taxis which by-passed the rank and continued along Harbour Street. I shall also return to this issue below.

(2) The primary judge’s reasons and some observations with respect to some of his findings

(a) The events preceding the incident and the incident itself

21 The primary judge’s findings of fact fall into two categories: the first are not subject to challenge; the second are challenged by Mr Asim and were identified in a statement filed pursuant to UCPR Pt 51 r 36(2). In this respect some 25 findings of fact are challenged in that statement. It is fair to say that they all relate to the primary judge’s findings in support of his conclusion that T7154 was the culpable taxi. It is convenient to deal first with the primary judge’s findings that were not subject to challenge.

22 On the evening of Saturday 24 January 2004, six friends including the plaintiff gathered at an apartment in Maroubra. They remained there until approximately midnight after which the group departed for the Wallaby Bar located at Cockle Bay. All concerned consumed liquor during the course of the evening but the primary judge found (at [12]) that the plaintiff was affected by liquor but not to a significant degree and certainly not enough to justify the description that he was drunk. His Honour accepted that he showed no obvious signs of intoxication.

23 The group left the Wallaby Bar together at approximately 4am on the Sunday morning when they split up. Two of them were not able to provide any information as to subsequent events.

24 Of significance to the issues on the appeal is the evidence of the lay witnesses with respect to two matters. The first relates to their evidence as to how the plaintiff became attached to the culpable taxi. This issue is relevant only to the question of contributory negligence. However, it is convenient to deal with it and the primary judge’s findings with respect to that evidence at this point. The second relates to the situation at the taxi rank immediately before the plaintiff became attached to the culpable taxi. Two aspects of the evidence are relevant to that issue. The first concerns the number of vacant taxis waiting at the taxi rank at the time of and immediately prior to the plaintiff becoming attached to the culpable taxi; the second concerns the number of persons waiting at the rank at that time.

25 The plaintiff was, of course, unable to give evidence. Of the other lay witnesses, only the evidence of Messrs Baillie, Finch and Cooper is presently relevant. The primary judge set out verbatim some but not all of their evidence that he considered relevant to the issues to which I have referred. I will therefore, where appropriate, set out more of their evidence where I consider it to be relevant to those issues.

26 Mr Baillie was not called to give evidence as he was in Scotland. However, a statement made by him to the police on 25 January 2004 was admitted as was a record of interview with an investigator on 29 April 2004. The relevant paragraphs of Mr Baillie’s police statement were as follows (at Blue 1/112-113):

“5. At about 4am four of the group including myself and Lawrence left the Wallaby Bar and walked down Darling Harbour towards Home nightclub. We walked slowly and sat down a couple of times between the two clubs. We eventually arrived at the home nightclub and walked over to the taxi rank on the southern side of the building on Wheat Road.

6. There was a crowd coming out of the Home nightclub and lots of people were in the taxi rank area getting into cabs. We were waiting for one of the members of the group to make a phone [call] and we waited for a cab for about 5 minutes.

7. We walked towards the first two taxi’s that were lined up and I saw a group of other people get into the first one. We headed for the second taxi in line and I saw Lawrence walk ahead of the rest of us by about five (5) metres. I saw Lawrence approach the front passenger side door of the taxi and attempt to open the door. I saw Lawrence pull up on the outer door handle a couple of times but the door appeared to be locked.

8. I saw the first taxi drive away and the second taxi that Lawrence was attempting to open the door on start to move forward. The taxi was moving faster than walking pace and [it] appeared to me that he was attempting to drive away. I did not see the rego number of the cab.

9. I did not see the driver at all because I was watching Lawrence, I saw Lawrence take a hold of something on either the side of the taxi or the roof area with both hands and lift both of his feet up so that they were parallel with the ground. As Lawrence did this I saw the taxi accelerate hard and drive away at a fast pace down Wheat Road headed North.

10. I saw Lawrence was still holding on to the side of the taxi with both feet off [the] ground as the taxi drove away. I saw the taxi travel a distance of about 50 yards until it went out of sight around a slight bend on wheat road.”

27 Apart from Mr Baillie’s description of his observations as to how the plaintiff became attached to the culpable taxi, two points need to be noted from paragraphs 5 and 6 of his statement. The first is that apart from himself and the plaintiff there were two people (a Mr Wright and Mr Hassaneim) in the group that walked over to the taxi rank. The second was his statement that there were “lots of people … in the taxi rank area getting into cabs”. Neither Mr Wright nor Mr Hassaneim gave evidence as to the number of people who were waiting for taxis at the rank or as to whether there were any people at all at the rank. Furthermore, the primary judge, when making findings with respect to whether the rank was busy, did not refer to this evidence.

28 The relevant part of Mr Baillie’s record of interview was as follows (Blue 1/122-127):

…

29 It may be observed at this point of the narrative that Mr Baillie’s answer to Q138 (which also was not referred to by the primary judge) was inconsistent with the first sentence of paragraph 6 of his statement to the police. The relevance of this inconsistency will become apparent when I deal with the findings of the primary judge which are subject to challenge. The evidence in his record of interview was that when the plaintiff became attached to the culpable taxi there was a queue of taxis behind that taxi. This is borne out by a composite plan that was provided to the Court without objection and which indicated that at the time the plaintiff approached the culpable taxi there were eight taxis in the rank - the culpable taxi was third from the front. This was apparently established from CCTV footage from Camera K4 and did not seem to be in dispute.

30 The other two relevant lay witnesses were Mr Finch and Mr Cooper neither of whom were part of the plaintiff’s party. Neither of them was at or in the vicinity of the taxi rank at the time the plaintiff became attached to the culpable taxi, but they were at or about the location where the plaintiff was dislodged from the vehicle which was some 300 metres to the north of the head of the rank. Mr Finch gave evidence that it appeared that the plaintiff was holding on to something inside the cab with his left hand and looking towards the cab driver. He observed that the front passenger window was open. Mr Cooper observed that the plaintiff was clinging to the rack on top of the taxi to which the vacant sign was attached. He observed the plaintiff slip off the rack and onto the pylon between the front and rear passenger windows.

31 However, Mr Finch’s evidence touched upon whether there were any people waiting at the taxi rank in the following exchange:

32 Whether Mr Finch was ever at the taxi rank or whether what he said was merely an assumption was never explored. Accordingly, a question arose as to whether his answer to the first question in the above exchange could be taken at face value. If it could then his evidence was inconsistent with Mr Baillie’s detailed answer to Q138 of his record of interview. It was not suggested to the Court that, because Mr Baillie was unable to give oral evidence and, therefore, to be cross-examined, his response to Q138 should be discounted in terms of the weight to be given to it by the primary judge. Regrettably, his Honour did not resolve that inconsistency. True he accepted Mr Finch’s evidence generally but he did so without referring to that of Mr Baillie.

33 As I have observed at [22] above, the plaintiff and his friends were at the Wallaby Bar at Cockle Bay. At one point it was suggested that that Bar, in effect, adjoined the Home Nightclub, which was within approximately 20 metres of the Wheat Road taxi rank. However, the Nominal Defendant accepted that this was wrong and that the Wallaby Bar was located in the building immediately to the west of Camera K3 which was located at least 160 metres to the north of the head of the taxi rank according to scaled maps provided to the Court. From the location of Camera K3 looking south the taxi rank is obscured by the building within which the Home Nightclub is located. It was therefore submitted by the Nominal Defendant that the probability was that Mr Finch, who left the Wallaby Bar at approximately 4.20am and witnessed the accident just before 4.45am, must have gone and looked at the taxi rank, noticed that “the line up for the cabs was extremely long” and, therefore, decided to walk back up Wheat Road in the hope of picking up a taxi further away from the rank.

34 The difficulty with this submission is that the scenario upon which it was based was never put to Mr Finch which raised the same difficulty to which I have referred at [32] above. It will be necessary to return to this issue later in these reasons.

(b) The culpable taxi

35 At [35] and [41] of his reasons the primary judge found that the culpable taxi was a white Ford Falcon Station Wagon carrying the Taxi Combined Services (TCS) livery and markings. It was either an EL model (produced from 1996 until mid-1998) or the earlier EF model. T7154 fitted that description, it being an EL model. This finding was not challenged.

36 It was ultimately accepted by Mr Asim that although a number of taxis entered Wheat Road from Harbour Street at the relevant time for the purpose of picking up customers from the taxi rank, only one of those taxis fitted the description of the culpable taxi. It was therefore accepted by him that if that taxi was T7154, it was the culpable taxi.

(c) The recorded locations of T7154

37 At the time of the incident all taxis within the TCS organisation were fitted with a GPS (global positioning system) which, if working correctly, would enable a taxi’s location to be identified on particular occasions. The GPS was connected to the taxi’s on-board computer. Whenever a driver signed on or signed off, pressed the button to indicate that the taxi had become vacant, logged into a suburb, or did anything that involved the operation of the on-board computer, the location of the taxi would be automatically recorded in the database kept by TCS.

38 This database was called the Logged Taxi Activity Database (LTA). The LTA recorded every action every day of drivers within the TCS organisation such as Mr Rana. If one wished to identify the actions of a single taxi driver or a single taxi, one could extract that data from the LTA. In other words, whenever a driver activated his computer, effectively a “snapshot” of the location of the taxi at that moment would be recorded by the GPS and transmitted to the LTA database. These snapshots were stored in the database but there was no continuous record of a taxi’s movements. At [56] the primary judge found, and it was not the subject of challenge, that on the morning of 25 January 2004 the GPS on T7154 was working correctly.

39 As his Honour observed at [57], the LTA established that on the morning of 25 January 2004 Mr Rana signed on at 4.08am in Kogarah where he resided at the time. Between then and 4.30am he had only one fare for a short trip between Kogarah and Brighton-Le-Sands that took four minutes; otherwise his taxi was vacant.

40 The primary judge then recited the further logged history of T7154 both before and after the incident which it is convenient to set out in full:

“58. At 4.30am he ‘logged in vacant’. He was then at the corner of Enmore Road and King Street in Newtown. The next entry is at 4.32am when the action is described as ‘log out engaged’. This meant that he had picked up a passenger. The GPS showed him to be in King Street, Newtown at that time.

59. The next entry is at 4.34am and is described as ‘log in approach’. This meant that Mr Rana while still engaged had logged into the suburb of Darling Harbour, indicating that he was interested in the availability of work in Darling Harbour. At the time he made that entry, the taxi was located in Abercrombie Street. There was a further entry at 4.34am – ‘log in vacant’. This meant that he had dropped off the passenger.

60. The next entry is at 4.37am and is recorded as ‘log in rank (Darling Harbour – Convention Centre rank)’. In fact a check of the LTA database showed that at the time he sent that message, he was in Regent Street approaching Queen Street, Chippendale. Mr Millner explained that drivers often indicated that they were in a taxi rank when in fact they were not, to gain an advantage over other drivers. Apparently when there was a job offered, the taxis on the rank obtained first preference. By sending that message Mr Rana would also be able to find out how many taxis were already ahead of him at that rank.

61. The next entries occurred at 4.45am. The first is ‘log out manual (Darling Harbour – Convention Centre rank)’ followed by ‘log in vacant (Pyrmont)’. At the time those messages were sent, the GPS showed that taxi T7154 was in Shelley Street, 30 metres south of Erskine Street in Darling Harbour. Mr Millner explained those messages as indicating that Mr Rana had decided not to put himself on the rank at Darling Harbour and was looking to find out what work there was in Pyrmont. Mr Miller explained that what Mr Rana had probably done was to simply ‘log in vacant’ at Pyrmont, which would have the effect of automatically making an entry to the effect that he was logging out manually from Darling Harbour. That would explain why the times were the same. The importance of this entry is that it placed taxi T7154 only 50 metres from the end of Wheat Road, i.e. where Wheat Road becomes Shelley Street, and approximately 150-200 metres from where the plaintiff became detached from the taxi.

62. The next entry is at 4.48am which is ‘job offer reject (Pyrmont)’. At that time the GPS indicated that the taxi was in King Street, 10 metres west of George Street in the city. The next entry is at 4.54am – ‘cover offer rejected’. The GPS showed that at that time the taxi was near the intersection of George Street and Park Street in the city. Mr Millner explained that this message meant that Mr Rana had rejected work which other taxis had failed to respond to within 10 minutes. At 5am there is a record of another cover offer being rejected. At that time the GPS showed the taxi to be in Harris Street at Ultimo. The LTA entries for taxi T7154 between 4.30am and 5am on 25 January 2004 are contained in exhibit O.”

41 In my view his Honour’s estimation in the last sentence of [61] that T7154 was only 50 metres from the end of Wheat Road where it becomes Shelley Street and approximately 150 to 200 metres from where the plaintiff was dislodged from the culpable taxi is in error. From the scaled off composite plan provided to the Court, and accepted as accurate, it is apparent that when Mr Rana logged in at 4.45am in Shelley Street he was 320 metres from where the plaintiff was dislodged and some 80 metres from the King Street intersection where Wheat Road becomes Shelley Street. However, I do not consider that this discrepancy affects the outcome of the appeal and therefore it can be put to one side.

42 I turn now to those issues which involve a challenge by Mr Asim to the primary judge’s findings which led him to conclude that T7154 was the culpable taxi.

(d) The exclusionary evidence

43 At [67] the primary judge noted the agreement of the parties that there were only two EL or EF Falcon Station Wagons seen in the CCTV footage of Wheat Road during the 15 minutes before the plaintiff took hold of the culpable taxi until 10 minutes after that event. Only one other EL or EF Falcon Station Wagon passed along Wheat Road in that period but it was not in TCS livery. It is for that reason that, as I have noted at [36] above, Mr Asim accepted that if T7154 had entered Wheat Road from Harbour Street to access the taxi rank, it was inevitably the culpable taxi. It was in this context that the CCTV footage of Harbour Street from Camera 44 or K2 became of relevance.

44 At [68] of his reasons his Honour referred to the CCTV footage from Camera K2 of Harbour Street which appeared to show a white EL or EF Falcon Station Wagon travelling in the right lane. He concluded, correctly in my opinion, that that taxi could not have been T7154 because it was picked up by the CCTV footage at least 9 minutes before the plaintiff became attached to the culpable taxi. However, as I have already observed at [18] above, the CCTV coverage of Harbour Street was not continuous during the relevant period with the result that his Honour accepted that

“other white EL or EF taxi wagons may have driven on [Harbour Street] but not have been picked up by the camera.”

45 The Nominal Defendant sought to strengthen its position against Mr Asim by attempting to exclude other white EF or EL Ford Falcon taxi wagons in TCS livery from being in Wheat Road at the time the incident occurred. In carrying out that task it relied upon lists of taxis and information provided by the RTA and TCS. It nevertheless accepted, as his Honour records at [69] of his reasons, that it could not entirely exclude all other vehicles of the relevant description. This notwithstanding, it submitted that it was able to exclude all but a relatively small number of relevant vehicles, which significantly increased the likelihood that T7154 was the vehicle involved in the incident.

46 Mr Asim relied in particular on three factors that negatived the impact of the exclusionary evidence. The first was that the process adopted for the purpose of the exercise was unable to exclude 17 taxis from possibly being the culpable taxi. The second was the Nominal Defendant’s inability to exclude other white EL or EF Ford Falcon Station Wagons, particularly phantom taxis. The third was the fact that for 45% of the relevant period part of Harbour Street leading up to and including the ES off-ramp was not the subject of CCTV footage with the possibility that during that period T7154 could have driven along that stretch of Harbour Street and exited to Shelley Street via the ES off-ramp without being detected.

47 His Honour dealt with the exclusionary evidence at [70] to [89] of his reasons. At [87] he summarised his conclusions in these terms:

“… I am satisfied that of the 287 taxis referred to, the [Nominal Defendant] was unable to exclude 16 from possibly being the taxi wagon involved in the incident.”

48 In addition to those 17 taxis, his Honour noted at [88] that it was also impossible for the Nominal Defendant to exclude what were known as “phantom taxis” described by Mr Millner, a data analyst and investigation officer employed by TCS, as taxis that typically operated with stolen or otherwise irregularly obtained plates. They had no means of communication and could not be located or recorded by TCS. There was also the possibility of taxi drivers tampering with a taxi’s equipment and, in particular, of drivers who did not sign on for a shift and did not use their on-board computers. Mr Millner nevertheless agreed that while some taxi drivers neglected or forgot to log on, they usually used the on-board computer and fare meter so that their taxi’s location was recorded on the LTA.

49 At [128] of his reasons the primary judge observed that the exclusionary process that had been undertaken established that there were comparatively few vehicles of the relevant type unaccounted for at the time of the incident. His Honour accepted that the prospect of one of that small number being on Wheat Road at about 4.45am remained a possibility although a matter of low likelihood.

(e) The ES off-ramp issue

50 Of greater relevance it seems to me is the number of taxis, some of them presumably vacant, that by-passed Wheat Road and proceeded north along Harbour Street during the critical 15 minute period. At [65] of his reasons his Honour accepted an analysis by Mr Lambert (an engineer retained by the Nominal Defendant) and Mr Bailey of 16 minutes of CCTV footage between 4.32am and 4.48am from Cameras K1 and K2 which revealed that 47 taxis entered the taxi rank, 11 taxis entered Wheat Road immediately to the north of the taxi rank, and 11 taxis (some vacant) continued north on Harbour Street and either entered Shelley Street via the ES off-ramp or travelled directly over the Harbour Bridge. His Honour also accepted at [68] that because CCTV coverage of Harbour Street was not continuous during this period, other white Ford Falcon EL or EF Station Wagon taxis may have driven along Harbour Street and not been picked up by the CCTV cameras. These other taxis would, in effect, need to be added to the 11 taxis which the cameras did show continuing north along Harbour Street bypassing Wheat Road.

51 I have referred at [35] above to his Honour’s finding, now not challenged, that of the 47 taxis that entered the taxi rank only one, being the culpable taxi, was a white Ford Falcon EL or EF Station Wagon with TCS livery. Accordingly, the issue which arose and to which a great deal of time was devoted both at trial and on the appeal, particularly by Mr Asim, was whether T7154 was one of the 11 taxis that were detected by Camera K2 as having continued north on Harbour Street and by-passed Wheat Road or one of those taxis which had also driven north along Harbour Street but had not been detected due to the non-continuous coverage of that street. If it was, then it could only have ended up in Shelley Street at 4.45am (according to the LTA) by entering that street via the ES off-ramp.

52 An issue therefore arose as to whether on the available evidence, the Nominal Defendant could establish on the balance of probabilities that T7154 was not one of those taxis that his Honour accepted had proceeded north on Harbour Street and by-passed Wheat Road, but was one of the 47 taxis that entered the taxi rank between 4.32am and 4.48am.

53 At [112] the primary judge recorded the following submission of the Nominal Defendant:

“An analysis of all of the vacant taxis on Harbour Street during the 16 minute period referred to, showed that more than half were in the right lane with no left hand indicator which was inconsistent with them intending to use the Erskine Street off ramp. There was no CCTV footage which showed a taxi entering the Erskine Street off ramp.”

54 His Honour agreed with this submission stating:

“I have viewed the CCTV footage relied upon by Mr Bailey as indicating taxis entering the Erskine Street off ramp and my observations do not accord with his. I could see no indication that any taxi was entering the Erskine Street off ramp.”

55 On the appeal Mr Asim referred to the condensed CCTV footage referred to at [13] above with the aim of persuading the Court that there were at least some vacant taxis that proceeded north along Harbour Street and could be observed to move from Harbour Street onto the ES off-ramp. In this respect, selected footage from Camera K2 with stills together with a verbal and written commentary by Mr Bailey were provided to the Court during the course of the hearing and accepted on the basis that the commentaries were a submission and not evidence. The commentary interpreted the footage as showing the culpable taxi near a wire fence adjacent to the ES off-ramp and taxis tracking behind some columns adjacent to the ES off-ramp, it being asserted that those taxis then proceeded onto the off-ramp and that one of them could have been T7154.

56 To say that the stills, like the CCTV footage, were of poor quality would be an understatement. As I noted at [17] above, the CCTV footage was generally of poor quality. The condensed version was obviously no better.

57 It is well accepted that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include CCTV footage) particularly in the absence of expert evidence: Angel v Hawkesbury City Council [2008] NSWCA 130 at [70] to [72]; Blacktown City Council v Hocking [2008] NSWCA 144 at [8] to [12], [167] to [170]; Warren v Gittoes [2009] NSWCA 24 at [54] to [55]; Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 at [20] to [28].

58 Camera footage and photographs of poor quality are particularly suspect and ought to be interpreted with an enhanced degree of caution. This is particularly so where a judge has rejected an expert’s evidence with respect to those photographs. In the present case there is nothing to suggest that Mr Bailey was an expert in the interpretation of photographs; but then neither was his Honour or, for that matter, this Court.

59 With this in mind and having viewed the same footage as the primary judge, I would agree with his Honour insofar as the footage does not enable a positive finding to be made that vacant taxis entered the ES off-ramp. On the other hand, I do not believe the footage permits a positive finding that none did so. If anything, the footage is neutral on the subject. However, as has already been acknowledged at [18] and [50] above, the footage in question did not provide continuous coverage of the relevant section of Harbour Street with the consequence that there was a period of 6 minutes and 45 seconds or 22 seconds per cycle during which a vacant taxi could have entered Shelley Street via the ES off-ramp without being picked up by Camera K2.

60 It would be reasonable to infer that those taxis that by-passed Wheat Road during the relevant period and which were not vacant would have proceeded along Harbour Street with a view to crossing the Harbour Bridge as once they passed the ES off-ramp they had no choice but to take that course. But there was no reason for vacant taxis to take that route. On the primary judge’s findings as to the likelihood of custom in the Wheat Road/Shelley Street area (to which I shall refer in more detail below), any vacant taxis which by-passed the Wheat Road taxi rank or the entry to Wheat Road to the north of the taxi rank, would have been more likely to have taken the ES off-ramp into Shelley Street. It is a reasonable hypothesis that those taxis by-passed the Wheat Road taxi rank at the relevant time either because there was insufficient custom at the rank (assuming they could see the area in question) or because they saw a queue of vacant taxis at the rank which they did not wish to join.

61 As noted at [50] above, his Honour accepted from the analysis of Messrs Lambert and Bailey of the CCTV footage that there were 11 taxis that fell into that category (although not all would have been vacant) and acknowledged that due to the non-continuous nature of the coverage of Harbour Street by Camera K4, there were periods when other vacant taxis could have travelled along Harbour Street undetected. Prima facie it could not be said that T7154 was not one of them.

62 For the reasons I have indicated, in my opinion the material in question goes no further than establishing that the possibility of one or more taxis, including T7154, by-passing the Wheat Road taxi rank and proceeding north in Harbour Street and then to Shelley Street via the ES off-ramp could not be excluded. So much was acknowledged by the Nominal Defendant.

(f) Mr Rana’s eagerness to explain why he would not have driven into Wheat Road

63 Mr Rana, the driver of T7154 on the morning in question, stated that he had no recollection of where he had driven his taxi that morning and denied that he had been involved in the incident which led to the plaintiff’s injuries. However, he accepted that he had driven that morning if the TCS records confirmed that fact which it was accepted they did.

64 It would be fair to say that although the contrary was suggested to him in a vigorous cross-examination, Mr Rana steadfastly maintained his position that he was not involved in the incident. In fact, after setting out passages from Mr Rana’s evidence in which he maintained that he had no recollection of where he had driven that morning and that he was not involved in the incident, his Honour concluded at [99] in these terms:

“I am not able to make any decision as to honesty or otherwise of Mr Rana based on his demeanour. He gave his answers in an unemotional and apparently truthful manner.”

65 His Honour’s starting point for his rejection of Mr Rana’s evidence was at [100] where he said:

“What did emerge from his evidence was an eagerness to explain the reasons why he would not have driven into Wheat Road on the morning of the accident.”

eagerness

66 There is no doubt that Mr Rana did not hesitate to acknowledge (at Black 287B-C) that at 4.30am on a Sunday morning one of the best sources of work within several kilometres of Regent Street, Redfern (where he was logged at 4.37am) was in the Darling Harbour area. He accepted (at Black 287F) that Darling Harbour at that time was generally a particularly fertile area for work. As appears from [40] above and at [60] of his reasons his Honour records an entry at 4.37am in the LTA database of “log in rank (Darling Harbour - Convention Centre rank)”. Coming from Regent Street, Mr Rana accepted that if he was proposing to go to the Convention Centre (which was on the western side of Darling Harbour being the opposite side to Cockle Bay and Wheat Road), he would have proceeded into Harbour Street past the Entertainment Centre, left into Pier Street and then into Darling Drive past the Exhibition Centre to the Convention Centre.

67 In his cross-examination prior to the passages from his evidence referred to by the primary judge, Mr Rana not only accepted that Darling Harbour at 4.30am on a Sunday morning was a particularly fertile area [for work] generally but also acknowledged that if there was no work at the Convention Centre taxi rank, he would continue along Harbour Street. He agreed that the next point of interest to a taxi driver on Harbour Street was Cockle Bay and King Street Wharf. He further accepted that if he decided to continue along Harbour Street rather than proceed to the Convention Centre and the Casino on the western side of Darling Harbour, he would next try Cockle Bay. He agreed that at that time of the morning that area would be pretty likely to produce some work unless there were too many taxis ahead of him. There then followed the passages from his evidence set out by his Honour at [101] of his reasons and which, with additions, I record below.

68 When cross-examined on behalf of the plaintiff, the following exchange occurred at Black 289U-290K:

69 The primary judge acknowledged at [64] of his reasons that Mr Rana’s evidence was that persons might be seeking taxis in Shelley Street because of its proximity to the Cargo Bar and the Loft that, apparently, were in the area of the King Street Wharf.

70 The following further exchange then took place (at Black 290R-291M):

71 Under cross-examination on behalf of the Nominal Defendant, the following further exchanges relevant to this issue occurred:

(At Black 298O-U)

…”

(At Black 299J-N)

…”

(At Black 304D-F)

(At Black 304Q-X)

“Q. In any event, having got to the Darling Harbour area as you said yesterday once you passed the Chinese Gardens, the first fruitful area for work is in Wheat Road between the IMAX Theatre and the Home nightclub?

(At Black 305H-P)

(At Black 307V-308I)

(At Black 310E-M)

72 It is apparent to me from the foregoing extracts from Mr Rana’s evidence that he did not seek to avoid or evade the proposition that if there was work in Wheat Road he would enter it. On the other hand, he also made it clear that the availability of work there was not inevitable and would depend upon the circumstances prevailing at the time. In particular, it would depend upon whether persons were waiting at the taxi rank and how many vacant taxis were already there. There was generally a lot of traffic in Wheat Road at that time of the morning and it could become congested which is why he did not always enter that road in pursuit of work unless, in effect, he was satisfied that the work was reasonably available. What he did know was that Shelley Street was a fertile source of work (it was a two way street and therefore easier to negotiate whereas Wheat Road was only one lane wide and one way).

73 It must also be remembered that Mr Rana maintained that he had no recollection of the events of the morning in question and that he steadfastly denied that he was involved in the incident. His answers in cross-examination were, therefore, apparently given on that basis: in other words, as indicative of what he would normally do without being specific. In these circumstances, and reading his evidence as a whole, I am unable to agree that his evidence demonstrated an eagerness to explain why he would not have driven into Wheat Road on the morning of the incident.

74 The primary judge acknowledged Mr Rana’s alleged reluctance to place himself in Wheat Road as being understandable as he knew that this was where a serious accident had occurred. At [102] he said:

“Nevertheless, his consistent reluctance to accept that the easiest and most obvious place for the picking up of fares at Cockle Bay was in Wheat Road leads me to treat his evidence with some caution.”

75 With respect, I am unable to accept this description of Mr Rana’s evidence. I detect no reluctance, let alone consistent reluctance, to accept the proposition to which his Honour makes reference. In fact, in my respectful view, his evidence exhibits the contrary proposition. He made it clear, as I have already indicated, that if there was work in Wheat Road that was where he would go unless there was a queue of vacant taxis already there and not a lot of people around seeking their services.

76 However, Mr Rana did maintain that there was always a lot of work in Shelley Street apparently from the Cargo Bar and other establishments within the King Street Wharf area which is immediately to the west of Shelley Street between King and Erskine Streets. I do not consider the fact that Mr Rana apparently considered Shelley Street a more fertile source of work at 4.30am on a Sunday morning than the taxi rank in Wheat Road as of itself evidencing “consistent reluctance” on his part to accept the proposition that the easiest and most obvious place for picking up fares in Cockle Bay was at the Wheat Road taxi rank. That premise, adopted by the primary judge, is not, with respect, self-evident. No evidence was called from other taxi drivers to support it. Mr Rana was the only taxi driver called.

77 Furthermore, his Honour’s finding with respect to Mr Rana’s eagerness to explain why he would not have driven into Wheat Road on the morning in question was not consistent with Mr Rana’s evidence as recorded by his Honour at [105] of his reasons. The complete passage of that part of Mr Rana’s evidence (at Black 301C-R) is as follows:

78 However, his Honour used the passage in question for a different purpose. At [106] he said:

“In those circumstances, it is difficult to understand why Mr Rana having been on the road for over 30 minutes, and having had fares for no more than 6-7 minutes, would have driven down Harbour Street in preference to driving into Wheat Road. In Wheat Road he would have had the advantage of not only fares in that road, both in the taxi rank or further along the road, but would also have had the advantage of picking up a fare in Shelley Road if he were otherwise unsuccessful.”

79 At [107] his Honour noted that the proposition in the last sentence of [106] had been expressly put to Mr Rana. In his evidence at Black 304Q-W Mr Rana agreed that once having passed the Chinese Gardens the first fruitful area for work was in Wheat Road between the IMAX Theatre and the Home Nightclub. The following exchange is recorded at [71] above which I repeat for convenience:

80 When it was suggested to Mr Rana that it would not make any sense for him to by-pass Wheat Road and head straight for Shelley Street because he would not know what work there was in Shelley Street, his response (at Black 306E) was “There is always work there”.

81 That answer was consistent with a number of answers to the same effect throughout his cross-examination. To this point there was in my opinion nothing in Mr Rana’s evidence to justify its rejection as untruthful. With respect, his Honour seems to have indulged in some perhaps understandable hindsight logic divorced from the practical realities of the instant decision-making process in which a taxi driver is required to engage at any particular moment.

(g) The situation at the Wheat Road taxi rank at the time of the incident

82 An issue arose at trial but with greater emphasis during the course of the hearing of the appeal as to the extent to which a taxi driver travelling north in Harbour Street would be able to see the taxi rank in Wheat Road before he or she was required to decide whether to deflect left into Wheat Road or to continue north in Harbour Street by-passing the taxi rank. It was suggested in Mr Asim’s submissions that the distance from which a taxi driver was able to see the taxi rank was approximately 80 metres from the point where that decision needed to be made.

83 Thus the proposition stated by his Honour in the last sentence of [106] of his reasons (which I have recorded at [78] above) was dependent to a substantial degree for its validity upon whether a driver travelling north in Harbour Street approaching the entry to Wheat Road and its taxi rank would be able at 4.30am to see the rank with sufficient clarity to enable him to determine not only whether there were other vacant taxis awaiting fares but also whether there were in fact sufficient customers seeking the services of those taxis as well as of other taxis which might decide to join the queue of the rank.

84 The primary judge at [108] referred to Mr Bailey’s evidence that the configuration of Harbour Street and the taxi rank in January 2004 was such that a taxi driver in that street would be able to observe the taxi rank and assess how busy it was. Mr Bailey based his opinion on certain photographs that his Honour examined, concluding that they only inferentially supported his contention. His Honour considered that there was a significant amount of speculation in Mr Bailey’s conclusion.

85 At [109] of his reasons his Honour said:

“While I accept that a driver in Harbour Street might have had a fleeting view of the taxi rank in 2004, he or she would not be able to make an appropriate assessment of it. The important feature for which a taxi driver would be looking was not so much the presence of other taxis, but rather the presence of people. As Mr Rana himself said, the best way to find out what was happening in Wheat Road was to drive into Wheat Road. In any event, if as Mr Bailey asserted, it were possible to get a good view of the taxi rank in Wheat Road, that view would have shown that there were many people waiting for taxis. This is confirmed by the CCTV footage and the evidence of Messrs Finch and Cooper.”

86 With respect to the primary judge’s apparent finding that there were many people waiting for taxis at the Wheat Road taxi rank at the time the plaintiff sought to engage the culpable taxi, he had previously noted at [64] that it was common ground that between 4.37am and 4.45am on a Sunday morning, Wheat Road was likely to have many persons seeking taxis. At [92] his Honour observed that the CCTV images confirmed that there were a number of people in the area of the taxi rank apparently looking for taxis. To the extent that there was any concession by Mr Asim relating to the number of persons seeking taxis at the Wheat Road taxi rank at the relevant time, it was withdrawn on the hearing of the appeal without objection by the Nominal Defendant.

87 At [125], after referring to the presence of T7154 in Shelley Street at 4.45am, thus placing it precisely where the culpable taxi would have been at the time, his Honour stated:

“In view of our knowledge of the numbers of persons seeking a taxi in Wheat Road at that time, Mr Rana’s attempts to place himself in Harbour Street are not persuasive. This is particularly so when one has regard to his lack of fares up until that time.”

88 I have difficulty in accepting his Honour’s conclusion at [64], [109] and [125] of his reasons that the evidence established that there were many persons seeking taxis at the Wheat Road taxi rank at the relevant time notwithstanding that he suggested that it was common ground. In my opinion the evidence does not support any such conclusion for three reasons.

89 First, careful consideration of the CCTV footage from Cameras K1 and K4 (which were the only cameras which panned part of the taxi rank) does not reveal other than a few possible persons who may have been looking for a taxi at the relevant time. In fact Camera K1 shows people moving away from the vicinity of the rank at that time. What the footage (particularly a still image taken from Camera K4 at 4.42am) does reveal is that at the relevant time there were at least eight vacant taxis queued at the rank awaiting custom. Those taxis are easily identifiable by their illuminated vacant signs with the culpable taxi either third or fourth in line. It would be a reasonable inference that at the time the culpable taxi joined the queue at the rank there were a number of vacant taxis in front of it. Mr Rana’s evidence (at Black 291K-M), which there was no good reason to reject, was that he would only divert from Harbour Street to the Wheat Road taxi rank if there was work there in the sense of a “lot of people around” and taxis were picking up and moving off quickly. The CCTV footage does not support a finding that those conditions were satisfied. Had Mr Rana observed that situation then his evidence was that he would have by-passed the Wheat Road taxi rank and proceeded direct to Shelley Street by way of the ES off-ramp.

90 Second, I referred at [50] above to his Honour’s reference at [65] of his reasons to an analysis by Mr Lambert, an engineer retained by the Nominal Defendant, and Mr Bailey of 16 minutes of CCTV footage between 4.32am and 4.48am from Cameras 103 (K1) and 44 (K2) providing views of Wheat Road and partial views of Harbour Street. In those 16 minutes 47 taxis entered the taxi rank. At [103] the primary judge sought to support a finding as to the “busy nature of Wheat Road at that location” by reference to that analysis.

91 However, the analysis also established that a further 11 taxis entered Wheat Road to the north of the taxi rank (thereby by-passing it) and a further 11 taxis and, according to his Honour, probably more, proceeded down Harbour Street. His Honour’s reference to there being probably more than 11 taxis was based upon his acceptance that the cameras did not continuously cover Harbour Street. The fact that 11 taxis in the critical period by-passed the taxi rank but nevertheless proceeded into Wheat Road would indicate that those taxis either did not consider that there was sufficient custom at the rank to warrant joining the queue of vacant taxis already there or that there were too many vacant taxis at the rank to service the number of persons waiting at that location. The position is a fortiori when one takes into account that not less than 11 taxis by-passed both the taxi rank and Wheat Road itself.

92 Third, apart from the CCTV footage, the only direct evidence on this issue was that of Mr Baillie to which I have drawn attention at [26] and [28] above. The evidence as to how busy the taxi rank was which Mr Baillie gave to the investigator conflicted with that which he gave in his police statement. The former evidence (particularly Mr Baillie’s answer to Q138 of his record of interview) was more detailed than the latter and was also more consistent with the CCTV footage from Cameras K1 and K4 in that it suggested that, apart from Mr Baillie and his group (including the plaintiff) and the group that entered the taxi immediately ahead of the culpable taxi, there were not many people standing around and the rank was anything but busy.

93 At [109] of his reasons (which I have recorded at [85] above) his Honour stated that the fact that there were many people waiting for taxis was confirmed by CCTV footage and the evidence of Messrs Finch and Cooper. However, he made no reference to Mr Baillie’s answer to Q138 which was to the contrary, and he was the only witness who was actually present at the rank at the critical time. Moreover, Mr Cooper gave no evidence to support his Honour’s conclusion and Mr Finch’s evidence to which I have already referred at [31] above is, at the very least, problematic. I therefore have difficulty, having read Mr Finch’s evidence, in accepting the primary judge’s assessment at [103] that his evidence was

because the queue at the taxi rank was too long

94 Therefore, in my view his Honour’s finding that there were a number of persons seeking a taxi at the Wheat Road taxi rank and that it was busy at the time the culpable taxi joined the queue of taxis at the rank cannot be sustained.

95 It may well be, although the CCTV footage is not clear on the point, that as Mr Rana asserted, there would have been persons seeking a taxi in Wheat Road at the relevant time which extended from the taxi rank to its intersection with King Street. In this respect, the evidence of Mr Rana, which his Honour did not reject, was that from 4.30am to 4.45am there were likely to be potential passengers looking for taxis not only between the IMAX Theatre and the Home Nightclub, but all the way up to Shelley Street (Black 300K-Q). He further said that he often saw people looking for taxis between the Home Nightclub and Sydney Aquarium and near the Aquarium itself (Black 301S-W). He accepted that if he pulled into the rank behind the IMAX Theatre (the Wheat Road taxi rank) but found that there were plenty of cabs and not enough customers to make it worthwhile waiting, he would have no choice but to proceed along Wheat Road to Shelley Street which would take him past other work that might have been available behind the Aquarium. When it was put to him that it would not make any sense to by-pass Wheat Road and remain in Harbour Street until the ES off-ramp as he would not know what was in Shelley Street, his response was “There is always work there” (Black 305R-306E).

173 The difficulty faced by the Nominal Defendant and, for that matter, the primary judge in drawing the inference that Mr Rana is most likely to have proceeded to the Wheat Road taxi rank rather than by-passed it, is that although he had so proceeded in the past, he had not always done so. As he said, there were no hard and fast rules: sometimes he did and sometimes he did not. There was no sufficient pattern of behaviour by Mr Rana which would permit the inference that he acted in a particular way on this occasion. He may or may not have proceeded to the rank. The inference that he did not was therefore as equally probable as the inference that he did. It follows that no definitive inference can be drawn one way or the other.

174 In this context I reiterate that no evidence was called from any other taxi driver who operated in the Cockle Bay area who may have put a contrary position to that articulated by Mr Rana. This may well be because every driver has their own modus operandi. To find that any particular driver would, as a matter of probability, act contrary to their articulated modus operandi would not, in my opinion, be supportable.

175 Again, at [125] his Honour rejected Mr Rana’s attempts to place himself in Harbour Street, particularly when one had regard to his lack of fares up until that time. Such a finding, with respect, was based upon assumptions and speculation rather than probabilities based on proven facts. Although it may be that the presence of T7154 in Shelley Street at 4.45am coincided with that of the culpable taxi, that of itself did not in my view justify the casting of suspicion on Mr Rana’s credibility. However, the element of coincidence in timing relied on by the Nominal Defendant and accepted by the primary judge assumes that the digital timing on the CCTV cameras, which enabled his Honour to fix the time at which the plaintiff became detached from the culpable taxi as between 4.44am and 4.45am, was synchronised with the LTA timing that logged T7154 in Shelley Street at 4.45am. It was never established that each of the relevant timing mechanisms in fact conformed with the other. Consequently there could well have been a discrepancy in timing accuracy between the two. At the very least there was no proper evidentiary basis for the drawing of an inference that they may have been the same or even relatively close to each other.

176 The primary judge then relied upon Mr Rana’s conduct between 4.45am and 5am in refusing three fares: factor (i). He seems to have accepted that there would have been nothing unusual had he rejected two such offers, but the rejection of the third when he had been on the road for 50 minutes with only two short fares was “difficult to understand”. Mr Rana was cross-examined with respect to these matters and his explanations in my view were perfectly credible. The fact that Mr Rana did not accept a cover offer in Harris Street, Pyrmont could not, either of itself or combined with other factors, fairly lead to the rejection of his evidence as being deliberately false.

177 His Honour’s view at [126] that it was surprising that Mr Rana would log in to Pyrmont rather than return to Wheat Road thereby enabling him to infer that something had occurred which caused him not to want to return to Wheat Road is, with respect, also speculative. Having apparently failed to obtain a fare in Shelley Street there was nothing illogical in him then logging into Pyrmont. When he was asked why he did so he responded, “I always do that”. He was not further challenged on that answer. Critically, the fact that he logged in to Pyrmont is inconsistent with any inference that he was seeking to avoid obtaining fares or that he wished to remove himself from the general area of Darling Harbour because he knew that he was responsible for the plaintiff’s dislodgment from his vehicle at speed.

178 Finally, in my view it was not open to his Honour to find (factor (l)) that, having notified his presence in Shelley Street by logging in to Pyrmont, Mr Rana was unaware as to how the GPS and LTA worked as a consequence whereof he did not know that there was a record of his location in Shelley Street. But even if he was unaware that by logging in at 4.45am that he was vacant and seeking work in Pyrmont he was revealing his presence in Shelley Street, nevertheless he was identifying his position in a more general geographical sense by indicating his availability for work at Pyrmont. As put to counsel during the course of argument, his indication to his base of the location to which he was headed and where he wished to find work, was inconsistent with someone attempting to keep a low profile moments after, and to distance himself from, the incident.

179 I have already referred to the statement in Neat Holdings referred to at [46] in Ipp JA’s judgment in Palmer v Dolman. If Mr Rana was the driver of the culpable taxi, then there is no doubt, and the contrary was not suggested, that he was guilty of serious criminal conduct and, further, that he had given perjured evidence at the trial before the primary judge. The drawing of inferences on the balance of probabilities that involves the finding of such conduct should not lightly be done unless the evidence, particularly the circumstantial evidence, justifies such a course. That statement in Neat Holdings is consistent with the provisions of s 140(2)(c) of the Evidence Act which entitles the Court to take into account the gravity of the matters alleged in deciding whether a party’s case has been proved on the balance of probabilities.

180 Although I also accept that the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the facts in issue should be inferred from the facts proved with the consequence that it was unnecessary for the Nominal Defendant to exclude all other taxis other than T7154 as being the culpable taxi, nevertheless the inability to exclude a number of such taxis is a factor to be taken into account when determining, in the context of the conduct of a taxi driver, whether the facts proved enable the fact in issue to be inferred.

181 Furthermore, it must be constantly borne in mind that the onus lay upon the Nominal Defendant to establish on the balance of probabilities that it was T7154 that was the culpable taxi. When one considers the whole of the evidence, I am forced to the conclusion that a number of the facts upon which the primary judge relied in support of his ultimate finding are unsustainable and that a number of observations he employed to support his finding that it was more probable than not that Mr Rana proceeded to the Wheat Road taxi rank, when examined, are no more than speculative.

182 This is particularly so given, as I have indicated, that taxi drivers would be expected to have their own modus operandi which would vary from driver to driver. There was no evidence to the contrary of that proposition. The reaction of a particular driver at any particular time may not necessarily, with the benefit of hindsight, be seen to be logical but it is certainly not necessarily irrational. An equally probable hypothesis to that accepted by the primary judge was that Mr Rana, when approaching the intersection of Wheat Road and Harbour Street, was not able, as his Honour found, to assess the extent to which there were persons waiting at the rank for taxis but was able to assess the number of taxis with illuminated vacant signs waiting at the rank. In those circumstances, and given Mr Rana’s evidence that Wheat Road could become congested because it is a single lane and that, at least in Mr Rana’s experience, Shelley Street was a fertile source of work due to the presence in that location of the Cargo Bar and The Loft, in my view the evidence as a whole was insufficient, given the gravity of what was alleged against Mr Rana, to justify the rejection of his evidence and to find on the balance of probabilities that T7154 was the culpable taxi.

183 At the end of the day my conclusions may be summarised as follows. First, there was nothing in Mr Rana’s evidence that justified his Honour’s finding (at [100]) that he was eager to explain the reasons why he would not have driven into Wheat Road on the morning of the incident.

184 Second, there was no proper basis for his Honour’s finding at [102] that Mr Rana was consistently reluctant to accept that the easiest and most obvious place for the picking up of fares at Cockle Bay was in Wheat Road. Accordingly, there was no justifiable reason for treating Mr Rana’s evidence with “some caution” or for finding at [110] and [125] that it was not persuasive.

185 Third, in the final analysis whether or not T7154 was the culpable taxi hinged on his Honour’s acceptance of the following submissions of the Nominal Defendant which I summarised at [156(h)] above but which for convenience I repeat. First, the area of the taxi rank was not well lit but nevertheless what could be seen was a number of vacant taxis queued at the rank. Second, a driver approaching the turn off to the taxi rank from Harbour Street would not have any real idea as to whether or not there were potential customers waiting to engage those taxis. Third, the foregoing factors made it more likely that that driver, having to make a decision whether to proceed to the rank or by-pass it, would decide to proceed to the rank on the off-chance of being able to pick up a fare.

186 It will be appreciated that this submission was in essence accepted by the primary judge at [109] of his reasons. It will be further appreciated that the submission and the finding were predicated, contrary to Mr Asim’s submission, on the inability due to at least poor lighting, of a driver approaching the turn-off from Harbour Street to the Wheat Road taxi rank being able to determine whether any, and if so how many, persons were waiting at the rank for a taxi. Given that the number of waiting taxis at the rank could be seen due to their illuminated vacant signs, it may be inferred that in those circumstances a driver with Mr Rana’s experience of the area, would by-pass the rank for the reasons he gave in evidence and upon which he was not successfully challenged, and would proceed to Shelley Street via the ES off-ramp. The foregoing encapsulates Mr Asim’s submission.

187 The two competing inferences were, therefore, as follows: first, Mr Rana proceeded to the rank even though he would not be certain of picking up a fare due on the one hand to the presence of other vacant taxis (which he could see) and, on the other, to his inability to determine whether there were any, and if so how many, people seeking a taxi; and second, that in those circumstances, he would by-pass the rank and seek a fare in Shelley Street where he was, according to his unchallenged evidence, confident of picking up a fare.

188 In my opinion, consistent with the principles to which I have referred at [143] above, each inference is in conflict with the other and is of equal probability. Neither is, therefore, capable of being definitely drawn. It follows that the choice between them is a mere matter of conjecture with the consequence that neither can be adopted. It must follow that the Nominal Defendant, contrary to his Honour’s finding at [131], has not established on the balance of probabilities that T7154 was the culpable taxi.

189 For the foregoing reasons in my view Mr Asim’s appeal should be upheld.

THE ISSUE OF CONTRIBUTORY NEGLIGENCE

190 The primary judge found that the plaintiff was guilty of contributory negligence in attaching himself to the culpable taxi. At [136] he considered that the question of whether contributory negligence should be found against the plaintiff related to his initial attachment to the taxi and his remaining attached to it for the first 3 or 4 seconds of the taxi’s movement away from the rank. The only evidence as to what happened before the taxi commenced moving off with the plaintiff attached was that of Mr Baillie, which I have recorded at [26] and [28] above. His Honour accepted that the plaintiff grabbed hold of the taxi as it commenced moving. At [139] he observed:

“… Whatever be the motivation, looking at the question objectively, one would have to say that such an action [grabbing hold of the taxi as it commenced to move] even if it involved some instinctive reaction to the movement of the taxi also involved a readily foreseeable risk of injury. Accordingly, I find that in taking that action the plaintiff failed to take reasonable care for his own safety.”

191 His Honour assessed the plaintiff’s level of contributory negligence at 10%. The Nominal Defendant did not challenge that assessment. However, Mr Asim submitted that the proper assessment of the plaintiff’s responsibility for his injuries should be 50%. The limitations upon an appellate court interfering with such an assessment are well known. In my view, upon the assumption that the plaintiff was guilty of contributory negligence, I would not interfere with his Honour’s assessment of the plaintiff’s responsibility for his injuries at 10%.

192 However, the plaintiff submitted that his Honour was in error in finding that the plaintiff failed to take reasonable care for his own safety. Apart from Mr Baillie’s statement there was no other evidence as to how the plaintiff came to be attached to the taxi. It was submitted that Mr Baillie’s evidence that the plaintiff “held on to … either the roof rack or the taxi sign” was not inconsistent with having his arm caught by the taxi when it moved off suddenly and unexpectedly. Further, it was submitted that there were possible scenarios which were inconsistent with any failure to take reasonable care for his own safety such as the plaintiff taking hold of the taxi to prevent being knocked down or run over. Accordingly, the circumstances gave rise to nothing but conflicting conjectures of equal degrees of probability with the consequence that no affirmative inference of a failure by the plaintiff to take reasonable care for his own safety could reasonably have been made.

193 The primary judge accepted Mr Baillie’s evidence in his police statement that he saw the plaintiff take hold of something on either the side or the roof area of the taxi with both hands and lift his feet up so that they were parallel with the ground. In his subsequent record of interview he said that the plaintiff tried the front nearside doorhandle of the taxi when it started to move towards the front of the rank and

“either the [plaintiff] held onto the … either the roof rack or the taxi sign and then the taxi, instead of moving to the front of the rank, like, actually … took off around the corner.”

194 A little later in the same interview Mr Baillie stated that as the taxi moved off the plaintiff pulled the front nearside doorhandle a couple of times and then he held on to the roof of the taxi. He said he was holding on to either the roof rack, which supported the taxi sign, or the actual sign itself. But the way he saw it he thought the plaintiff had his hands on the roof rack and the taxi sign.

195 As I have indicated the primary judge accepted that evidence. There was no suggestion in Mr Baillie’s evidence that the plaintiff took hold of the roof rack in order to prevent being knocked down or run over.

196 Although it is true that at [136] his Honour posed the question of whether contributory negligence should be found against the plaintiff as relating first to his initial attachment to the taxi and, second, remaining attached to it for the first three to four seconds, in my view he ultimately held that his only contributory negligence was in attaching himself to the taxi in the first place which, even if it was an instinctive reaction to the movement of the taxi, involved a readily foreseeable risk of injury.

197 In oral argument the plaintiff accepted that his Honour was correct in finding that the plaintiff took hold of the taxi as it commenced to move. He also accepted that he was in a position where he could have held on to the roof rack although he may not have been able to reach over and hold on to the taxi sign. It was further accepted that when the taxi moved off he had his hand on the roof rack and that his other hand was somewhere near the passenger window, which was consistent with what Mr Finch saw at the end of the journey. However, Mr Finch did not see the plaintiff attach himself to the taxi; only Mr Baillie witnessed that and his evidence did not suggest that the plaintiff was other than holding on to either the roof rack or the taxi sign itself. It was open to his Honour to accept, as he did, that the plaintiff grabbed hold of the roof rack as the taxi moved off.

198 Nevertheless, the plaintiff submitted that although it was reasonable for the primary judge to find that the plaintiff grabbed hold of the roof rack of the taxi as it commenced to move, that was insufficient to justify a finding of contributory negligence. It was necessary for his Honour to find how and/or why he came to grab hold of the taxi’s roof rack. It was submitted that whatever his motion was, looking at the question objectively one would accept that it was readily foreseeable and certainly a possibility that the plaintiff grabbed hold of the taxi as an instinctive reaction when it moved at a time when he was attempting to gain entry but that such conduct on the plaintiff’s part could not amount to contributory negligence. With respect, I disagree.

199 At the time the taxi moved off it is clear from the evidence that the plaintiff was attempting to open the front nearside passenger door. He attempted to do so on more than one occasion. Having failed to do so he simply could have stepped back as the taxi started to move. However, rather than do that, he grabbed the roof rack and hung on as the taxi commenced to move.

200 The plaintiff further submitted that the only way there could be a finding of contributory negligence was if there was a finding that the plaintiff deliberately grabbed hold of the taxi intending to ride on it until it stopped. Again, I disagree. Whether or not it was his intention to ride on the outside of the taxi is not to the point. The fact that he intended to remain attached to the vehicle while it was moving is, to some extent, borne out by the crucial fact that he grabbed hold of the roof rack in the first place.

201 It was further submitted that the movement of the taxi must have been totally unexpected and would have thrown him off balance as a consequence whereof he must have grabbed the roof rack for balance. This would not be consistent with contributory negligence. This is so, but there was no evidence to support the possibility referred to.

202 A further possibility advanced depended upon whether the plaintiff had one arm within the taxi itself with the result that he was initially pulled along by the movement of the taxi and in order to steady himself grabbed the roof rack. Mr Baillie’s evidence does not support that possibility and it should be rejected.

203 The plaintiff then submitted that even if he had involuntarily and instinctively taken hold of the roof rack, it was still necessary to conduct a balancing exercise in order to determine whether his culpability, that is, the degree of departure from the standard of care of the reasonable person, was in fact causative of the injuries that he ultimately sustained. It was submitted that the taxi driver’s conduct was so culpable that by the time the taxi reached a point 250 metres down Wheat Road, the driver had driven over a speed hump at a speed of 45kph knowing that the likely consequence was injury to the plaintiff as a result of which any culpability that could be attributed to the plaintiff had by then dissipated. My understanding of this submission is that by the time the plaintiff became detached from the taxi, his initial culpability in grabbing hold of the taxi had diminished to the point where it was no longer causative of his injuries.

204 It was further submitted that even if it be correct that the plaintiff would not have suffered any injuries at all if he had not grabbed hold of the taxi in the first place, nevertheless his conduct in so doing was too remote from when and how his injuries ultimately were sustained.

205 It is true, as the plaintiff submitted, that there were a number of options open to the driver of the culpable taxi after the plaintiff became attached to it. He could, for instance, have driven a few metres and then stopped. Upon the assumption that he did not wish to accept the plaintiff as a customer, there are a number of actions he could have taken which would not have involved driving at some speed with the plaintiff attached to the outside of his taxi.

206 In my opinion the plaintiff’s submissions should be rejected. One can accept for present purposes that the front passenger door of the taxi was locked which is why the plaintiff was unable to open it. One can also infer that by moving off the driver of the culpable taxi did not wish to accept the plaintiff as a fare. This was not his right as he was bound to accept the plaintiff as a fare: see Passenger Transport (Taxi-cab Services) Regulation 2001, cl 55. However whether or not the driver of the culpable taxi was acting unlawfully does not bear upon the present issue.

207 Whether or not the plaintiff was acting instinctively, reactively or reflexively in grabbing hold of the roof rack of the taxi as it moved off, he having been unsuccessful in repeated attempts to open the front passenger door, the fact remains that he took hold of the roof rack knowing that the vehicle was moving and that he was being rejected as a fare. That act on the plaintiff’s part was, in my opinion, fraught with danger. It was the very antithesis of conduct of a plaintiff who had regard for his own safety and one which, once the taxi commenced to move, dictated that he step back away from it. He did not do so.

208 I would also reject the submission that by the time the plaintiff was dislodged from the taxi, his original conduct in grabbing hold of the roof rack of the taxi when it commenced to move had dissipated to the point that it was no longer causative of his injuries. In my opinion it was, if only for the reason that had he not attached himself to the taxi in the manner he did, he would not have been injured. In this context I record that no reliance was placed by the plaintiff on any relevant provision of the Civil Liability Act 2002. The extent of his culpability is reflected in the primary judge’s assessment in which he applied the classic statement of principle enunciated by the High Court in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 494 which requires any apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the former’s damage to involve a comparison both of culpability and the relative importance of the acts of the parties in causing that damage.

209 At [142] when applying that statement of principle, his Honour found that the contribution to the incident by the driver of the culpable taxi far outweighed that of the plaintiff. He was clearly correct in so finding which is reflected in his assessment of the plaintiff’s level of responsibility for his injuries at only 10%. I see no error in that finding.

210 Accordingly, in my opinion, so much of the plaintiff’s Amended Notice of Cross-Appeal as challenges the primary judge’s finding of contributory negligence should be rejected.

CONCLUSION

211 For the foregoing reasons in my opinion the primary judge erred in finding that T7154 was the taxi to which the plaintiff became attached on the morning of 25 January 2004. Accordingly, the verdict in favour of the plaintiff against Mr Asim should be set aside and the plaintiff’s Amended Cross-Appeal should be allowed in part with the result that there should be a verdict for the plaintiff against the Nominal Defendant. So far as contributory negligence is concerned, both Mr Asim’s appeal and the plaintiff’s cross-appeal against his Honour’s finding of 10% contributory negligence should be dismissed.

212 As his Honour found in favour of the plaintiff against Mr Asim, he entered a verdict against the plaintiff in favour of the Nominal Defendant. Those findings and the verdicts consequential upon them will need to be reversed. His Honour also ordered the plaintiff to pay the costs of the Nominal Defendant but made a Bullock order to the effect that Mr Asim pay the plaintiff’s costs of the proceedings including the costs of the Nominal Defendant that the plaintiff had been ordered to pay. Again, that order should be reversed. There was no objection to that course.

213 Accordingly, I would propose the following orders:

(a) Appeal allowed.

(b) The First Respondent’s cross-appeal allowed in part.

(c) Set aside Orders 1 to 4 made by Hoeben J on 12 November 2009.

(d) There be a verdict in favour of the Cross-Appellant against the Second Cross-Respondent with damages to be assessed.

(e) There be a verdict in favour of the Appellant against the First Respondent.

(f) The First Respondent to pay the costs of the Appellant at first instance.

(g) The Second Respondent to pay the costs of the First Respondent at first instance, such costs to include the costs of the Appellant which the First Respondent has been ordered to pay pursuant to Order (f) hereof.

(h) The Second Respondent to pay the costs of the Appellant of the appeal.

214 MACFARLAN JA: I agree with Tobias JA and also with the additional observations of Young JA.

215 YOUNG JA: The plaintiff (first respondent) sued the Nominal Defendant for damages for personal injury because he claimed that his injuries were caused by an unidentified motor vehicle.

216 The Nominal Defendant produced material to show that the accident was caused by a particular vehicle taxi T7154 for which Mr Asim was responsible.

217 The scenario was thus that unless the trial judge held on the balance of probabilities that T7154 was the vehicle that caused the accident (the culpable taxi), the Nominal Defendant was liable.

218 The trial judge was satisfied that T7154 was the culpable taxi and gave judgment accordingly.

219 This is a most difficult case factually, but, apart from the difficulty of interpreting rather poor CCTV and still photos, little turns on the credibility of live witnesses.

220 Some of the evidence was contradictory in the detail and there were variations in the definition of “cover job” in the taxi industry as to whether that term meant a job which had been put into a taxi company’s system because of a telephone or online order, but not accepted within ten minutes, or whether it meant such a job which had already been refused by at least one taxi. However, much of this did not matter in the result.

221 There was also some odd evidence. The taxi computer system showed that T7154 had started its morning shift in Kogarah at about 4am and had a fare from Kogarah to Brighton-Le-Sands. It then proceeded empty towards the city and was clocked in Regent Street, Redfern at 4:37am.

222 The plaintiff’s injury was caused at 4:44 - 4:45 am at Darling Harbour.

223 T7154 seems to have travelled from Regent Street, along George Street, then left into Hay Street, right into Harbour Street then either along Wheat Road or the Erskine Street off-ramp, along Shelley Street (where it was clocked at 4:45am) right into Erskine Street, right into York Street, left into King Street, right into George Street, (fares were rejected at King and George and George and Park) right into Goulburn Street into Pier Street and then right into Harris Street, Pyrmont where a potential fare was rejected.

224 This almost seems like aimless wandering. The evidence was that the best chance of work at 5am on a Sunday was at Darling Harbour or Pyrmont, yet the cab drives through Darling Harbour and then does not take the shortest route to Pyrmont.

225 However, it may be that the driver’s expectation of a fare in Shelley Street was not fulfilled and at that stage he could not double back into Darling Harbour.

226 When assessing the evidence, it needs to first be remembered that the onus of showing that a particular vehicle was involved was for all intents and purposes on the Nominal Defendant. Secondly, experience shows that there will always be discrepancies and mysterious aspects of the evidence in virtually all cases. Thirdly, the evidence of the driver of T7154 on the night in question was based on what he normally did, as he claimed no recollection of the day in question. Fourthly, it may be erroneous to assume that the time 4:45am on the taxi company computer was necessarily exactly the 4:45am when the accident occurred. Fifthly, the Nominal Defendant’s case was based to a large extent on the implausibility of the coincidence that two elderly Ford Falcon cabs were at roughly the same spot at the same time.

227 It is also significant that the driver of T7154 gave his evidence clearly and unequivocally and there was no apparent reason to reject it.

228 I have read with care the primary judge’s assessment of the evidence. I have also read in draft that of Tobias JA.

229 With respect, I agree with Tobias JA’s assessment. Thus, I agree with the orders he proposes allowing the appeal of Mr Asim with consequential orders.

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Citations

Asim v Penrose [2010] NSWCA 366

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CITATION:	Asim v Penrose & Anor [2010] NSWCA 366
HEARING DATE(S):	27 October 2010 28 October 2010
JUDGMENT DATE:	21 December 2010
JUDGMENT OF:	Tobias JA at 1; Macfarlan JA at 214; Young JA at 215
DECISION:	(a) Appeal allowed. (b) The First Respondent’s cross-appeal allowed in part. (c) Set aside Orders 1 to 4 made by Hoeben J on 12 November 2009. (d) There be a verdict in favour of the Cross Appellant against the Second Cross Respondent with damages to be assessed. (e) There be a verdict in favour of the Appellant against the First Respondent. (f) The First Respondent to pay the costs of the Appellant at first instance. (g) The Second Respondent to pay costs of the First Respondent at first instance, such costs to include the costs of the Appellant which the First Respondent has been ordered to pay pursuant to Order (f) hereof. (h) The Second Respondent to pay the costs of the Appellant of the appeal. (i) The Cross-Appellant to pay the costs of the First and Second Cross-Respondent with respect to the cross appeal. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	APPEAL – civil – evidence – whether conclusion supported by evidence - APPEAL – civil – fact finding – competing evidence – lay opinion – how plaintiff became attached to culpable taxi – situation at taxi rank immediately before incident - EVIDENCE – proof – circumstantial evidence – competing inferences – whether driver most likely to have proceeded to taxi rank rather than by-passed it – each inference of equal probability - EVIDENCE – proof – onus – onus on Nominal Defendant to establish taxi was culpable taxi - EVIDENCE – proof – standard of proof – civil – application of Briginshaw standard - TORTS – negligence – contributory negligence – motor accident - TORTS – negligence – liability – motor accident – whether taxi was culpable taxi
LEGISLATION CITED:	Civil Liability Act 2002 Evidence Act 1995 Motor Accidents Compensation Act 1999 Passenger Transport (Taxi-cab Services) Regulation 2001 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Angel v Hawkesbury City Council [2008] NSWCA 130 Blacktown City Council v Hocking [2008] NSWCA 144 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v R (No 2) (1984) 153 CLR 521 Doney v R (1990) 171 CLR 207 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Holloway v McFeeters (1956) 94 CLR 470 Jones v Dunkel (1959) 101 CLR 298 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Luxton v Vines (1952) 85 CLR 352 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Penrose v Nominal Defendant & Anor [2009] NSWSC 1187 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Warren v Gittoes [2009] NSWCA 24 Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85
PARTIES:	Mohamad Ramzan Asim Laurence Howard Penrose by his tutor Kevin Penrose The Nominal Defendant
FILE NUMBER(S):	CA 2005/269464
COUNSEL:	A: D Grieve QC / T Clarke 1R: K Rewell SC / M Cleary 2R: I D Roberts SC / D R J Toomey
SOLICITORS:	A: Vardanega Roberts, Sydney 1R: Cohen & Krass, Sydney 2R: McCourts solicitors, Pyrmont
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2005/20384
LOWER COURT JUDICIAL OFFICER:	Hoeben J
LOWER COURT DATE OF DECISION:	12 November 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Penrose v Nominal Defendant & Anor [2009] NSWSC 1187