Asim v Penrose

Case [2010] NSWCA 366

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…

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AGLC
Asim v Penrose [2010] NSWCA 366
Case
[2010] NSWCA 366
Decision Date

CaseChat Overview and Summary

The appeal concerned a motor accident and involved the appellant, Asim, and the respondents, Penrose and the Nominal Defendant. The primary dispute revolved around whether a particular taxi was the "culpable taxi" involved in the incident, and consequently, who bore liability for the appellant's injuries. The case was heard in the Court of Appeal of New South Wales.

The legal issues before the court included whether the primary judge's findings of fact were supported by the evidence, particularly concerning the identity of the taxi and the circumstances at the taxi rank immediately prior to the incident. The court was required to consider the application of the *Briginshaw* standard of proof, the onus of proof on the Nominal Defendant to establish the identity of the culpable taxi, and the assessment of competing inferences arising from circumstantial evidence. The question of contributory negligence was also a factor.

The Court of Appeal found that the primary judge's conclusion was not sufficiently supported by the evidence. The court analysed the circumstantial evidence and the competing inferences that could be drawn, concluding that the onus on the Nominal Defendant to prove the taxi was the culpable one had not been discharged to the required civil standard. The court determined that the evidence did not establish that the driver of the taxi was the most likely to have proceeded to the taxi rank rather than by-passing it, and that inferences of equal probability existed.

Consequently, the appeal was allowed, and the First Respondent's cross-appeal was allowed in part. Orders made by the primary judge were set aside, and verdicts were entered in favour of the Appellant against the First Respondent, and in favour of the Cross Appellant against the Second Cross Respondent, with damages to be assessed. The court also made detailed orders regarding the payment of costs at first instance and on appeal.

Orders

Orders of the court

(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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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