Penrose v Nominal Defendant

Case [2009] NSWSC 1187


CITATION: Penrose v Nominal Defendant & Anor [2009] NSWSC 1187
HEARING DATE(S): 11/05/09, 12/05/09, 13/05/09, 14/05/09, 18/05/09, 19/05/09, 20/05/09, 07/07/09, 08/07/09
 
JUDGMENT DATE : 

12 November 2009
JUDGMENT OF: Hoeben J
DECISION: Verdict in favour of the plaintiff against the second defendant, with damages to be assessed.
Verdict in favour of the first defendant.
Plaintiff is to pay the costs of the first defendant.
Second defendant is to pay the plaintiff’s costs of these proceedings, such costs to include the costs of the first defendant, which the plaintiff has been ordered to pay pursuant to Order (3) hereof.
CATCHWORDS: TORT - motor accident - serious injuries suffered by plaintiff attached to taxi - identity of taxi disputed - contest between Nominal Defendant and purported owner of taxi - circumstantial evidence - GPS showing position of taxi at various times - evidence excluding other taxis from location of accident at time of accident - EVIDENCE - standard of proof in civil case where serious allegations made - Briginshaw v Briginshaw - approach in civil case in determining whether circumstantial evidence leads to finding of serious misconduct on part of taxi driver - CONTRIBUTORY NEGLIGENCE - plaintiff becoming attached to taxi - plaintiff remaining attached to taxi - objective test - COSTS - Bullock order - unsuccessful defendant to pay whole of plaintiff's costs.
LEGISLATION CITED: Motor Accidents Compensation Act 1999
CATEGORY: Principal judgment
CASES CITED: Almeida v Universal Dye Works Pty Limited (No 2) [2001] NSWCA 156
Bell v Veigel; Bell v Broughton [2008] NSWCA 36
Bradshaw v McEwans Pty Limited (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Bullock v London General Omnibus Co [1907] 1 KB 264
Joslyn v Berryman [2003] HCA 34, (2003) 214 CLR 552
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492
Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 55,605
PARTIES: Laurence Howard Penrose by his tutor Kevin Penrose - Plaintiff
The Nominal Defendant - First Defendant
Mohamad Ramzan Asim - Second Defendant
FILE NUMBER(S): SC 20384/2005
COUNSEL: Mr KP Rewell SC/Mr MA Cleary - Plaintiff
Mr I Roberts SC/Mr D Toomey - First Defendant
Mr DE Grieve QC/Mr TJ Clarke - Second Defendant
SOLICITORS: Teakle Ormsby Conn - Plaintiff
McCourts Solicitors - First Defendant
Stephen Vardanega - Second Defendant

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      HOEBEN J

      Thursday 12 November 2009

      20384/05 - Laurence Howard PENROSE by his tutor Kevin PENROSE v The NOMINAL DEFENDANT and Anor

      JUDGMENT

1 HIS HONOUR:

      Nature of Proceedings
      At 4.45am on 25 January 2004 the plaintiff, who was then 22, suffered catastrophic injuries in a motor accident in Wheat Road, Cockle Bay. He suffered very severe head injuries, including severe traumatic brain damage. He is effectively a tetraplegic. He is PEG fed. He is unable to communicate. His vision is impaired. He is incontinent. Since February 2005 he has been…

Continue reading Penrose v Nominal Defendant

Sign in free to access the full text

Details
AGLC
Penrose v Nominal Defendant [2009] NSWSC 1187
Case
[2009] NSWSC 1187
Decision Date

CaseChat Overview and Summary

In the matter of Penrose v Nominal Defendant, the court was asked to determine the identity of the taxi involved in an accident which resulted in serious injuries to the plaintiff. The plaintiff, who had become attached to the taxi, was injured when the vehicle suddenly accelerated. The identity of the taxi and its driver was disputed, with a Nominal Defendant initially named, and later a contest between the Nominal Defendant and the purported owner of the taxi. The court had to determine which party was responsible for the accident and liable for the plaintiff's injuries.

The central legal issues before the court involved the standard of proof required in a civil case with serious allegations, the admissibility and weight of circumstantial evidence in establishing the identity of the taxi, and whether the plaintiff's actions constituted contributory negligence. The court needed to consider the Briginshaw v Briginshaw approach in assessing the strength of circumstantial evidence, and whether the plaintiff's actions met the objective test for contributory negligence. Additionally, the court had to determine the appropriate costs order, including a potential Bullock order.

The court found that the circumstantial evidence, including the GPS data and exclusion of other taxis from the location of the accident at the relevant time, was sufficient to establish the identity of the taxi and its driver. The court held that the standard of proof was met on the balance of probabilities, and that the plaintiff's actions did not amount to contributory negligence. The court ordered the unsuccessful defendant to pay the whole of the plaintiff's costs, including a Bullock order for costs on an indemnity basis for the plaintiff's unsuccessful claim against the Nominal Defendant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.