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Penrose v Nominal Defendant

Penrose v Nominal Defendant

Case [2009] NSWSC 1187 12 November 2009

Causation

Negligence

Admissibility of Evidence

Compensatory Damages

Costs

Tort Law

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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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Penrose v Nominal Defendant

Details

AGLC: Penrose v Nominal Defendant [2009] NSWSC 1187
Case: [2009] NSWSC 1187
Decision Date: 12 November 2009

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