Asim v Penrose & Anor

Asim v Penrose & Anor - [2010] NSWCA 366 - NSWCA 2010 case summary — Zoe

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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.

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(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.

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(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.

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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): "Q93 What were the weather conditions like at the time and date of the accident? A. I really can't remember. I know it wasn't raining but that's as far as I can remember. Q94 And was it still dark at the time of the accident? A. Um…I think it was…it was still dark but it was beginning…the sun was beginning to come up from what I can remember. Q95 Was there any street lighting or other lighting in the area where you witnessed this incident? A. Yeah, I think there is, yes. Q96 And how would you describe the general visibility? A. I would say it was good. I was only maybe five or ten metres away from it, so it was … … Q100 And just to clarify, was the taxi rank on Wheat Road just near the Home nightclub? A. Yeah. … Q103 In as much detail as possible, please explain precisely what happened when the subject incident occurred? A. From what I remember happened, there was a taxi in front that had some people getting into it, and Laurence tried the handle of the taxi behind and I don't know…the door didn't open so he took…I remember him trying it again and the taxi in front pulled off and Laurence tried the door handle again and the cab that he was trying the handle of started to move towards the front of the rank and either Laurence 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…I wouldn't say it squealed out but it moved quickly, really quickly out of the rank and took off around the corner. And that was from the three of us. We thought it was a joke, we were expecting to walk around the corner and find Laurence standing there but we didn't. … Q138 Were there many people in the area of the taxi rank at the time of the accident or the incident? A. No, there wasn't that many people about, no. There probably was a few people standing round but there wasn't…it wasn't really busy or anything. Q139 Were there any other taxis behind the taxi that the Claimant attached to? A. Yeah, I'm sure there was quite a few, because they were queued. From my recollection of it, there's a kind of slope, a slight hill the taxis come down off the freeway onto. I'd have said yeah, there was a few taxis sitting round, looking for fares." 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: "Q. Could you tell us in your own words just exactly what you saw in as much detail as you can please? A. Obviously the line up for the cabs was extremely long, so I thought I would head towards King Street. As I was there at Wheat Road I noticed a cab coming along and I checked to see if it was available when I noticed a gentleman hanging off the side of the cab. Q. About how far from you was the cab? A. 10, 15 metres." 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.

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(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.

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(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."

[26]

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.

[30]

At [101] he set out that part of Mr Rana's evidence that he said illustrated that eagerness. Unfortunately, as his Honour's observation as to Mr Rana's " eagerness " played a significant part in his reasoning to his conclusion that Mr Rana was the driver of the culpable taxi, it is necessary to repeat and add to the evidence set out by his Honour. However it is significant to observe at the outset that in the extracts in question Mr Rana, on four occasions and without apparent hesitation, agreed first, that if there were a lot of people around he would go into Wheat Road; second, that if there was work there he would go in; and third, that if taxis were picking up and moving off quickly he would probably go in. 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: "Q. … If you made the decision to keep going along Harbour Street rather than going on Pier Street across to the Convention Centre, you would at least want to have a good look at the rank at Cockle Bay, wouldn't you? A. It depends. Like if you see there's few cabs going in front of you you can just keep going straight or you can go into there, it depends. Q. Normally you would at least go into Wheat Road and have a look, wouldn't you? A. Yeah. Q. Because otherwise you have either got to go across the Harbour Bridge and go north or you have got to turn off at the Erskine Street off ramp? A. Yes, Shelley Street. Q. If you go into Shelley Street, Shelley Street again is mainly offices and residential apartments where you are not likely to get work at 4.30? A. No, there's Cargo Bar there and the loft and all that. You get lots of work from Cargo Bar. Q. Not as good as Cockle Bay, Wheat Road? A. No, there's more work up there. Q. There's not a rank up there? A. No, but taxis do stop there but there's no rank. Q. Whereas there is a rank on Wheat Road? A. Yes. If you want to wait then there is a rank there, yes." 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): "Q. If you [had] made your way all the way from Redfern to Harbour Street and been vacant all the way and decided to exclude the Convention Centre because there were too many taxis there, you would at least pull into Wheat Road to have a look, wouldn't you? A. Sometimes you do, sometimes you don't. Q. Well, you couldn't lose anything by pulling in to see how many people were around, could you? A. Sometimes the taxi drivers are racing each other and you want to cut through and go in front, but you would, yes. Q. And if there were a lot of people around you would go into Wheat Road, wouldn't you? A. Yes. Q. Even if there were a few cars ahead of you because there were people around? A. It's not a hard and fast rule. Q. No, but that's what you would normally do, wouldn't you? A. I don't really go into Wheat Road that much though, but I would. If there is work there I would. Q. If you go further and turn into Shelley Street there may or may not be work there? A. There's always work there. Q. If you could see from the entrance of Wheat Road that there were people around and perhaps a few cars ahead of you, a bird in the hand would be the correct idea, you would go in there and see what you could get, and if nothing happened for a while you can always just drive off? A. When you say a few taxis go in front of you and all the light is on and they pick up three or four people up there, probably in the meantime you go in front and pick up something else. Q. If it was the fact that there were a lot of people around you would go in? A. Yes. Q. And if the taxis were moving off quickly, if they were picking up and moving off quickly you would go in? A. Yeah, probably." 71 Under cross-examination on behalf of the Nominal Defendant, the following further exchanges relevant to this issue occurred: (At Black 298O-U) "Q. In any event, at 4.37 when you logged into the Darling Harbour rank you were actively seeking work in the Darling Harbour area? A. Yes, of course. Q. Because you wanted to find out how many taxis were ahead of you on the rank even though you weren't there, seeking work? A. Yes, but sometimes you just get a job. You log in and you get a job. Q. I understand that, but you were looking for work in the Darling Harbour area? A. Yes. …" (At Black 299J-N) "Q. Certainly everything you have seen about the positions marked would be consistent with you taking that usual route to get down to the Darling Harbour area? A. Yes. Q. Particularly if you are looking for work? A. Yes. Q. And you were looking for work? A. That's why you, you go to work, I guess. …" (At Black 304D-F) "Q. And of course Darling Harbour. The Darling Harbour and convention centre areas were regular areas that you sought work? A. Yes Q. In January 2004? A. Yes" (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? A. Yes. Q. And there are then, if one stays in Wheat Road without picking up a fare there? A. Yes. Q. That is at that rank, there are further fruitful areas of work as one proceeds along Wheat Road before you get to Shelley Street? A. Mm-hm. Q. Including the area behind the aquarium where a lot of people wait for taxis? A. Yes." (At Black 305H-P) "Q. For that reason I want to suggest to you that you in 2004, if you were anxious to find work, you would as you proceed along Harbour Street and pass the Chinese Gardens when you got near the IMAX theatre, move into the left lane and move into Wheat Road. You would have done that, wouldn't you? A. Could have done that, I'm not sure. Q. It is highly likely you would do that? A. Not really. It is never likely I would have. I could have, I'm not sure. Q. You suggested yesterday that you may stay in Harbour Street to race other cabs, remember saying that. A. The thing is when the cabs go in and because it is just a one-way street if there is four cabs empty in front of you and you don't want to go behind them because if one stops and picks up the fare, the second one, third one, an you are number four. At that time if you cut through and go straight up the little exit to Erskine Street, you go to Shelley Street and pick up something there because all these cabs are going to be behind you then." (At Black 307V-308I) "Q. What I'm suggesting to you is that it makes no sense if you are looking for work to bypass the first two entrances to Harbour Street and to go to the most northerly one near King Street? A. You can stand there at that time in the morning and you can see how many cabs go past, so it depends. But you don't know what you are going to do at any minute. You see a customer there, you may, you know, make a right turn from the far left lane. That is why people hate taxi drivers. And even if you're driving right there is a bloody taxi driver, so … Q. What I suggest to you is that if you are looking for work you would go into Wheat Road, do you agree or not? A. Yes, of course. Q. And I suggest you would go into Wheat Road at this first or second available opportunity, namely at the southern end? A. It all depends. I can't say that I will definitely go. It all depends at that time what I am thinking. Q. More often than not you would go that way, wouldn't you, in 2004? A. Yes, probably have done, I'm not sure." (At Black 310E-M) "Q. This morning you have essentially said you really, I think you have agreed with the proposition that in 2004, January 2004 you would, on occasions, drive along Wheat Road for its full length but sometimes you say you wouldn't? A. Yes. I'm always in the city. Q. Yesterday, though, you swore and these were your words, 'I don't really go into Wheat Road that much though, but I would. If there was work there I would'? A. Yes. Q. Why did you say you don't really go into Wheat Road that much? A. Because it gets very congested there and sometimes you get stuck. There is a lot of traffic there most of the time. Q. Was it because you were trying to avoid the possibility that his Honour might find that you did get to Shelley Street by entering Wheat Road at the southern end and driving right along the length of Wheat Road until it joins Shelley Street? A. No." 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: "Q. And if one is in Harbour Street, one has to, to get on to Wheat Road, move into the left hand lane? A. Yes. Q. After one passes the IMAX Theatre, if one wants to get to the taxi rank? A. Mm-hm. Q. Between the IMAX and the Home [nightclub] you have to take, there is a little left-hand lane turning area for taxis to come in restricted to taxis and buses? A. Yes. Q. And that is where, in the normal course of events of looking for work on a Sunday morning, Saturday night you would first look if you were driving in that area, would you not? A. Yes. Q. And to do that you had to have turned off Harbour Street into Wheat Road? A. There's two entrances there. The first one, and there is another one there so if you miss the first one you go to the second one or you can go to the third one. There's like three. Q. To look to see if there is work between the rank and the IMAX Theatre and the Home nightclub you have to get into Wheat Road. You cannot do it in Harbour Street and still have time to turn into Wheat Road, do you? A. Yes, you do, sometimes. Q. I see. And do you say that that is something you usually did or would you usually move into Wheat Road and into the taxi area? A. Usually you go into Wheat Road. Q. And usually in the taxi area, and if there is no-one there or a lot of taxis there, drive back on to Wheat Road and keep going north? A. Yes. Q. And did you say earlier that there is lots of work up to Shelley Street? A. Yes." 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: "Q. For that reason I want to suggest to you that in 2004, if you were anxious to find work, you would as you proceed along Harbour Street and pass the Chinese Gardens when you got near the IMAX theatre, move into the left lane and move into Wheat Road. You would have done that, wouldn't you? A. Could have done that, I'm not sure. Q. It is highly likely you would do that? A. Not really. It is never likely I would have. I could have, I'm not sure." 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.

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(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 "that he commenced walking down Wheat Road in order to catch a taxi because the queue at the taxi rank was too long ." (Emphasis added)

[32]

Those difficulties are enhanced by my remarks at [33] and [34] above. 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). 96 However, a critical finding which, in my respectful opinion his Honour was required to make to support the conclusion at [125] (recorded at [87] above) of his reasons, was not that there were a number of persons wanting taxis in Wheat Road (generally) but that there were a number of persons wanting taxis at the Wheat Road taxi rank, a finding which for the reasons referred to above at [89]-[93], it was not open to his Honour to make. 97 I return to [109] of the primary judge's reasons extracted at [85] above. This paragraph contained critical findings bearing upon Mr Rana's veracity for his Honour's conclusion at [110] that he did not find the reasons advanced by Mr Rana as to why he might not have driven along Wheat Road on the morning of the incident to be particularly persuasive. He continued: "… Being aware as he was that a serious accident involving a taxi wagon similar to his had occurred in Wheat Road, I have concluded that his evidence as to why he might not have driven along Wheat Road at that time was intended to exculpate him from any responsibility for the accident." 98 This was a serious finding for it amounted to a rejection of Mr Rana's evidence and a finding that he was not telling the truth. It does not sit easily with his assessment at [99] of Mr Rana's evidence: see [64]. 99 If his Honour be correct when at [109] he found that a driver in Harbour Street would only have a fleeting view of the taxi rank in 2004 so that he or she would not be able to make an appropriate assessment of how busy it was, then according to Mr Rana's evidence he would not have proceeded to enter the rank from Harbour Street. In effect his evidence was that he would only enter Wheat Road if he could see that there was work in the form of more people waiting for taxis than there were vacant taxis awaiting customers. 100 Nevertheless, the primary judge considered that 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, and if a driver only had a fleeting view of the taxi rank at the relevant time he or she would be unable to make an appropriate assessment of it. It must follow that that driver would not be able to assess whether there were sufficient people present at the rank to cause him or her to enter it. 101 In the third sentence of [109] his Honour asserts that Mr Rana himself said that the best way to find out what was happening in Wheat Road was to drive into that street. Mr Rana's evidence as set out by the primary judge at [101], [105] and [107] of his judgment does not bear out the accuracy of that conclusion. There is no doubt that Mr Rana said that if there were a lot of people around the taxi rank he would proceed to it. But that was a different point to that which his Honour was seeking to make, namely, that he would enter Wheat Road and proceed to the rank whether or not he could see that there were customers waiting there. 102 In my respectful opinion, Mr Rana's evidence when read as a whole did not reach the level of certainty that the primary judge attributed to him in the third sentence of [109]. True, he accepted that if he could see that there was work at the taxi rank, he would usually enter Wheat Road. But the highest his evidence came in support of his Honour's finding was in the following exchange recorded by him at [105] which I repeat: "Q. I see. And do you say that that is something you usually did or would you usually move into Wheat Road and into the taxi area? A. Usually you go into Wheat Road. Q. And usually in the taxi area, and if there is no-one there or a lot of taxis there, drive back on to Wheat Road and keep going north? A. Yes." 103 From my reading of Mr Rana's evidence he did not go so far as to say that he always proceeded to the Wheat Road taxi rank upon the basis that that was the best way to find out what was happening at the rank or in the road itself. Furthermore, he was, of course, speaking only as to his general practice, having emphasised that whether or not he proceeded to the rank depended on the circumstances at the time. In particular, it depended on the number of vacant taxis already queued at the rank and the number of people at the rank waiting for a taxi. 104 Another problem with his Honour's statement in the third sentence of [109] is that it is not entirely clear as to whether in the first answer in the passage from his evidence extracted at [102] above, Mr Rana was referring to the taxi rank in Wheat Road or to the section of Wheat Road to the north of the taxi rank which could be entered by an off-ramp from Harbour Street immediately to the north of that rank. 105 I would conclude this aspect of the matter by noting that Mr Asim submitted that the primary judge should have accepted Mr Bailey's evidence to which he refers at [108], namely, that a driver approaching the turn-off to the Wheat Road taxi rank would have had a clear view of the rank and would have perceived that there was a paucity of customers awaiting a taxi at that location. Although I agree with the second part of the proposition, I have significant doubts with respect to the first part. One must remember that it was still fairly dark at 4.30am. The only evidence as to the extent of the lighting in the vicinity of the taxi rank was that in Mr Baillie's answers to Q94 to Q96 of his record of interview. Mr Rana was not asked whether in the early hours of the morning he would have had a clear view of the situation at the rank at the point where a driver was required to decide whether to divert to the Wheat Road taxi rank or continue along Harbour Street. As I indicated at [76] above, no other taxi driver was called to give evidence as to this issue. In the foregoing circumstances I do not believe that there was sufficient evidence upon which a finding one way or the other could be made with respect to this issue. 106 I note again, however, that the onus lay upon the Nominal Defendant to establish on the balance of probabilities first, that at a point where a driver travelling in Harbour Street needed to decide whether to divert to the Wheat Road taxi rank, the extent of business at the rank, including the competition for customers from other vacant taxis, would be able to be appreciated; second, that at 4.30am on that Sunday morning there were in fact a significant number of persons waiting for a taxi at the rank; third, that there was little competition from other vacant taxis at the rank; and, fourth, that even if the state of the rank could not clearly be seen and assessed from Harbour Street, nevertheless it was more probable than not that a driver in the position of Mr Rana would have proceeded to the rank and taken his chances.

[34]

(h) Mr Rana's conduct following the incident 108 In coming to the conclusion that T7154 was on the balance of probabilities the culpable taxi the primary judge did not rely only upon Mr Rana's alleged eagerness to explain the reason why he had not driven into Wheat Road on the morning in question and his alleged consistent reluctance to accept that the easiest and most obvious place for collecting fares in Cockle Bay was at the Wheat Road taxi rank. 109 At [111] of his reasons his Honour summarised the plaintiff's and Nominal Defendant's submissions on a further aspect of the matter: "The plaintiff and the [Nominal Defendant] submitted that the conduct of Mr Rana between 4.45am and 5am is difficult to understand. They submitted that by this time his taxi had been on the road for over 35 minutes and he had only had paying fares for 6-7 minutes at most. They submitted that it must have been obvious to him if he did travel along Harbour Street and gained access to Shelley Street via the Erskine Road turnoff, that there were many people in Wheat Road apparently wanting to catch taxis. Instead of attempting to get back into Wheat Road, he went towards Pyrmont and rejected three offers of work. They submitted that an inference should be drawn that something had happened which led to him not wanting to go back into the Wheat Road area, and that he needed some time to compose himself before taking other work. I agree that the rejection of three fares when he had been having such a slow period and the abandonment of a fertile area for obtaining fares are difficult to understand unless something unusual or untoward had happened." 110 At [119] the primary judge recorded Mr Asim's submission on this issue: "[Mr Asim] submitted that had Mr Rana been the driver of the taxi wagon involved in the incident, it is most unlikely that he would have 'advertised' his location by activating his computer while in Shelley Street. He submitted that with his experience as a taxi driver, he would have known that by doing so he would be identifying his position if he were the driver involved in the incident. On the contrary, Mr Rana did not attempt to depart the scene of the accident but, it was submitted, continued to drive T7154 in a conventional manner." 111 The locational history of T7154 after 4.45am was recited by his Honour at [58] to [62] of his reasons, which I have extracted at [40] above. The inferences he drew from that history are stated at [126] in the following terms: "Mr Rana's conduct between 4.45am and 5am supports a conclusion that his was the taxi involved in the incident. Between 4.45am and 5am he refused three offers of fares. While one can understand that one or two fares may have been unattractive, the rejection of three in circumstances where the taxi had been on the road for over 50 minutes with only two short fares is difficult to understand. In view of the number of persons wanting taxis in Wheat Road, it is also surprising that Mr Rana would go to Pyrmont rather than back into Wheat Road. I infer that something had occurred which caused him to not want to go into Wheat Road and which also upset him sufficiently that he was not prepared to accept a fare until after 5am." 112 It was essential to the primary judge's conclusion in the last sentence of [126] that between 4.45am and 5am Mr Rana refused three offers of fares. Mr Rana explained in his evidence that there was nothing unusual about rejecting fares. The evidence established that at 4.45am he logged in to Pyrmont. When asked (at Black 291V) why he might have done that, he responded, "I always do that". When asked why he rejected jobs all the time, he responded (at Black 292E) "Sometimes you don't want to do that job or it's too far or sometimes it is where - you know that by the time you get there the job is not going to be there." 113 Mr Rana was extensively cross-examined with respect to this issue. It is necessary to record that evidence as it was not specifically referred to by his Honour but inferentially rejected by him in the last sentence of [126]. (At Black 292L-293F) "Q. I want you to assume that on one hypothesis your taxi had been vacant for 14 minute when you were offered a job in Pyrmont, 4.34 to 4.48. If you had been vacant in the inner city area for 14 minutes on a Sunday morning or Saturday night you would be getting rather anxious to get work, wouldn't you? A. Yes. Q. And it would be rather unusual to then reject a radio job that was offered to you, even if it wasn't an optimal job? A. It doesn't matter. Q. Even if you had been vacant for what must have been a long time for Saturday night, Sunday morning? A. Sometimes you sit on the rank and keep rejecting 10 or 15 jobs. Q. But you weren't on a rank, I suggest to you, at that time? A. Yeah, the same thing. Q. If work was, on one hypothesis, difficult to find for 14 minute or so, you would start to become keen to take the next job, wouldn't you, just to make sure you had someone in your taxi? A. Fourteen minutes is not that long of a time not to have a job. Q. Would it be unusual if you were vacant for 26 minutes to reject a job. A. Yes. Q. Even vacant for 26 minutes on a Saturday night, Sunday morning? A. Sometimes you wait one hour and you still reject a job. Q. It's actually quite expensive to hire a cab for the Friday night and Saturday night shifts, isn't it? A. That was a Sunday morning shift. That's a very cheap shift. Q. It is cheaper, is it? A. Very cheap. Q. Even though you get the tail end of Saturday night? A. Yes, because nobody wants to work Sunday mornings." (At Black 293V-W) "Q. See, in normal circumstances you wouldn't knock back three jobs when your cab had been vacant for 14 to 26 minutes. A. I would." (At Black 294D-I) "Q. Well, for example, if you wanted to get away from a particular area you might reject jobs? A. I'm not sure. Q. Because if you took a job it might lead you back through the same area you had just come from, for example? A. That doesn't make any difference. Where the passenger wants to take you, you have to go. Q. It might make a difference if you wanted to move away from an area and not be seen there. That could make a difference, couldn't it? A. No." (At Black 295C-I) "Q. Why, though, wouldn't you circle and come back along either Wheat Street or Shelley Street again rather than log into Pyrmont? A. If you see work there then you come back. If you don't see work then you keep moving. Q. So do we assume from that answer that if you moved out of the Shelley Street area and, for that matter, the Cockle Bay area, it was because there didn't appear to you to be any work in either place? A. I probably wouldn't have got work there. Q. And that you fancied your chances better in Pyrmont. Is that what we would conclude of you then logged into Pyrmont? A. It doesn't really matter where, you just log in anywhere and if you think it's a good job then you take it." 114 It needs to be recorded that it is not entirely correct for his Honour to have found that Mr Rana refused three offers of fares. The first offer rejected was a specific radio offer at 4.48am to T7154. However, there was no evidence as to the destination of the customer. The other two were "cover offers' which, it was common ground, were jobs that have been offered to other taxis generally for more than 10 minutes but have not been accepted by at least one such taxi during that time. If, by their very nature, the two cover offers had not been accepted by at least one other taxi within the 10 minute period then, so it was submitted by Mr Asim, there was nothing suspicious about either of the cover offers not being accepted by Mr Rana. In other words, other taxis had not accepted the offers and Mr Rana was in no different position to those taxis. 115 The LTA entries show that at 4.48am under the column "Action", there was a "Job Offer Reject" and under the heading "Suburb" was the entry "Pyrmont". In relation to 4.54am and 5am under the heading "Action" the entry is "Cover Offer Reject" in each case and again the suburb was Pyrmont. 116 Mr Millner was asked to explain these entries and did so in the following exchange (at Black 144F-Y): "Q. Does the entry at 4.54 mean that there was a job in Pyrmont which no-one else had accepted within 10 minutes and it was therefore transmitted to him as a cover? A. Not necessarily so, no. Q. Can you explain it then? A. It could be - each suburb is surrounded by other suburbs, adjoining suburbs, and those suburbs are linked into the Pyrmont area. So if he is in Pyrmont and a job is in an adjoining suburb, he may be offered the job for the adjoining suburb. Q. Because as far as the computer is concerned at 4.54 he is still logged into Pyrmont? A. That's right. Q. Having logged into Pyrmont at 4.45? A. Yes. Q. And not unlogged himself? A. That's right. Q. In fact the 4.54 cover offer reject created a GPS record which showed, by the looks of it, that he was near the intersection of George Street and Park Street? A. Yes. Q. I think we know where that is. So he has reached the Town Hall by this stage, more or less? A. Yes. Q. Then there was another cover offer rejected at 5.00 o'clock? A. Yes, that's correct. Q. Creating another record, this time showing that he has progressed to Harris Street at Ultimo? A. Yes. Q. So he has crossed towards Pyrmont? A. Yes." 117 The foregoing is not entirely clear and Mr Millner was not cross-examined with respect to this evidence, which he had given in chief. It would seem to establish, as the primary judge found at [62] of his reasons recorded at [40] above, that at the time the offers were made to Mr Rana they were at the locations referred to by his Honour in that paragraph. The entry of Pyrmont under "Suburb" merely records the fact that at 4.45am Mr Rana had logged in to Pyrmont whilst in Shelley Street. The entries do not, however, indicate the pick up point of the customer the subject of the offer. As best one can tell from Mr Millner's evidence, the potential customer may have been in the Pyrmont area or surrounding suburbs. In my respectful opinion, it is somewhat difficult to draw any conclusions as to why Mr Rana rejected those three offers without at least knowing where the potential customers were located at the time the offers were made. 118 Again, the primary judge's expression of surprise at [126] of his reasons that Mr Rana would go to Pyrmont rather than return to Wheat Road was predicated upon his finding that there were a number of persons wanting taxis in Wheat Road. I have already indicated the difficulty I have in accepting that finding. 119 Finally, it was submitted by Mr Asim, and repeated on the appeal, that if T7154 was the culpable taxi, it was unlikely that Mr Rana would have notified his presence in Shelley Street as he did at 4.45am. His Honour dealt with this submission at [130] in the following terms: "… No evidence was led from Mr Rana as to his knowledge in January 2004 of how the GPS and LTA database worked. The fact that Mr Rana and other drivers advised TCS that they were on specific taxi ranks when in fact they were approaching those ranks, seems to suggest either a lack of knowledge of the GPS and LTA system or a lack of concern about the information which was available from it." 120 With respect, I do not find his Honour's discounting of the fact that Mr Rana logged in at Shelley Street at 4.45am thus revealing his location in Shelley Street as convincing. The onus at all times lay upon the Nominal Defendant to establish that Mr Rana was the driver of the culpable taxi. In these circumstances one would have thought that, prima facie, the fact that Mr Rana notified his presence in Shelley Street at 4.45am was a significant factor which tended against a finding that he was the guilty driver and, therefore, keen to extract himself from the area as quickly as possible. 121 At the very least there was an evidentiary onus upon the Nominal Defendant to elicit from Mr Rana that he was unaware that when he logged in Pyrmont as his destination, that would reveal his presence on the LTA database in Shelley Street. As his Honour noted, no evidence was led from Mr Rana on this subject: nor was he cross-examined on the issue. To make the finding he did which he then used, at least in part, to discredit Mr Rana without him having the opportunity to refute the suggestion his Honour adopted was, with respect, unfair. 122 Further, the finding by the primary judge in the last sentence of [130] is difficult to accept given first, that Mr Rana was an experienced taxi driver and there was no reason to believe that he was unaware of how the GPS and LTA system worked; and, second, that drivers were not concerned when they logged on before reaching a specific taxi rank or location (as it was common practice to do) of it being discovered that they were not actually on the rank or near the location. If Mr Rana was the guilty driver, then it would be reasonable to infer that he would be particularly concerned to not give away his location a few hundred metres from where the plaintiff had become detached from his taxi. 123 Of course, if a witness had seen the culpable taxi's plate and recorded its number, then it would not matter where the taxi proceeded to for it would be ultimately apprehended. If there was no such witness, then one would have anticipated that the guilty driver would have sought to move as far away from the Darling Harbour area as quickly as possible. Mr Rana did not take that course. On the contrary he remained in that general area by proceeding to Pyrmont having at 4.45am, whilst in Shelley Street, logged out of the Darling Harbour-Convention Centre rank and logged in as vacant to Pyrmont. 124 Thus the primary judge's findings in [126] and [130] do not sit well with Mr Rana's conduct not only in logging in at 4.45am and therefore revealing his location in Shelley Street, but also logging in to Pyrmont which was on the opposite side of Darling Harbour from Cockle Bay and, therefore, could be said to be part of the general Darling Harbour area. After all at 5am, 15 or so minutes after the incident occurred, he was located at Harris Street, Pyrmont which would indicate that he had proceeded down George Street, turned into Goulburn Street, crossed Harbour Street into Pier Street and turned right into Harris Street at its intersection with William Henry Street. With respect, that does not seem to me to be the conduct of a person wishing to give the impression that he was not in the vicinity of the incident when it occurred.

[35]

(i) The nearside rear brake light issue 125 At trial, and reiterated on the appeal, Mr Asim submitted that there were two distinguishing features between the culpable taxi and T7154. The first related to the nearside rear brake light of the culpable taxi compared to that of T7154. The second related to the small amber light located above the roof top taxi sign that is designed to activate when the taxi is vacant. 126 Mr Sidhu managed a number of taxis on behalf of their owners of which T7154 was one. His Honour records at [43] of his reasons that Mr Sidhu gave evidence that the taxis under his management were inspected daily and any defects were repaired. Those repairs were recorded in a book that he produced to the Court. He said that although he would regard the replacement of a brake light as a minor matter, such a repair would still be recorded so that the owner could be charged for the cost of the repair. There was no record of any repair to a rear brake light with respect to T7154. 127 The relevance of this evidence was, as his Honour observed at [45] of his reasons, that Mr Bailey was of the opinion that the nearside rear brake light of the culpable taxi was not working or working properly on the night of the accident. He reached this conclusion as a result of his observations of the CCTV footage that showed the taxi applying its brakes before turning into Wheat Road after leaving the taxi rank. On the basis of Mr Sidhu's evidence, such a defect would have been noticed and repaired, this being an indication that the culpable taxi was not that driven by Mr Rana on the morning in question. 128 The primary judge rejected Mr Bailey's opinion in the following terms: "46. I have watched the relevant part of exhibit F on a number of occasions. It is clear that on the morning of the incident, the rear lights of the taxi were operating. The tail light on the offside appeared brighter than that on the nearside. When the taxi braked just before turning into Wheat Road, the brake light on the offside clearly activated. I did, however, detect an increase in the intensity of the light on the nearside, although that light was not nearly as bright as that on the offside. Mr Bailey explained that phenomenon by saying that it was probably a product of the angle from which the video was taken. I am not persuaded that this is so. It follows that I am not satisfied on my viewing of exhibit F that the rear brake light on the nearside of the taxi involved in the incident was not operating on the morning of the accident." 129 Exhibit F was a DVD with footage taken from Camera K1. It must be remembered that both the culpable taxi and T7154 had two sets of rear lights: the first set was the rear lights of the vehicle which were illuminated at all times at night, and the second set was the brake lights which only illuminated when the brakes were applied. 130 Mr Bailey's evidence as contained in his report with respect to the issue of the brake lights was in the following terms (at Blue 4/1332): "a) There is a significant difference in the light output from the nearside and offside brake lights of the taxi involved and it appears that the nearside brake light is not functioning. When the brake lights are first seen to come on (DVD1-22087/8 repeated below), there is a small increase in apparent red light from the nearside rear lamps but this is probably associated with a change in the angle between the camera and the rear of the vehicle as it (i) moves further from the camera and (ii) as the nose dips slightly on brake application, so that the light from the nearside tail light is aligned more directly with the camera lens and the impression remains that the nearside brake light was not functioning, certainly it was not functioning correctly." (Italics in original) 131 Mr Bailey illustrated his opinion by reference to two stills from Exhibit F showing the rear of the culpable taxi and taken 0.3 seconds apart and which, he stated, demonstrated increased brightness of the nearside brake light of the culpable taxi. In fact this appears to be an error for the photographs indicate increased brightness of the offside brake light. 132 My own viewing of the relevant footage does seem to indicate that when the brakes of the culpable taxi were applied, the offside brake light was significantly brighter than the nearside brake light. However, one would hesitate to interpret the photographs as establishing that the nearside brake light of the culpable vehicle was not functioning at all as distinct from not functioning correctly. Mr Bailey acknowledged the latter possibility in the passage from his report that I have set out at [130] above. 133 The primary judge recognised the limitations on a judge attempting to interpret photographic evidence such as CCTV footage when he said at [47]: "There are two additional reasons for reaching that conclusion [being his conclusion at [46]]. The first is the significant discrepancy which exists between that which is depicted by cameras such as the CCTV footage and that which is observed by the human eye. It is well known that film of this kind can give a distorted or false view of what is happening. An example of that is the incorrect elongation of distances created by the CCTV footage in this case.

[38]

(k) The Briginshaw standard 140 Notwithstanding that the case was a circumstantial one, Mr Asim submitted that Mr Rana's denial of involvement in the incident was unequivocal and his evidence on the issue had not been shaken at any time in cross-examination. It was submitted that for the Court to reject Mr Rana's evidence it would have to be satisfied on the balance of probabilities to the standard specified in Briginshaw v Briginshaw (1938) 60 CLR 336 as explained in subsequent cases. Particular reliance was placed upon the views expressed by the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5. As his Honour noted at [118], in accordance with the dicta in that case, Mr Asim submitted that the circumstantial evidence before the Court went no further than the raising of conflicting inferences of equal degrees of probability: Luxton v Vines (1952) 85 CLR 352 at 358. 141 At [122] of his reasons his Honour accepted Mr Asim's submission that for the Court to be satisfied that T7154 was the culpable taxi, the Briginshaw standard needed to be satisfied. This was because of the serious implications regarding Mr Rana's conduct if such a finding was to be made. In this respect Mr Asim submitted on the appeal that the rejection of Mr Rana's evidence involved two consequences: the first was that he had lied on oath and the second was that, albeit not proved to the criminal standard, he had nevertheless committed on the balance of probabilities a serious criminal offence. The Nominal Defendant did not suggest otherwise. 142 At [123] his Honour set out the comprehensive statement of Ipp JA, with whom Basten JA and myself agreed, in Palmer v Dolman [2005] NSWCA 361 relating to what has been colloquially but not entirely accurately called the Briginshaw standard of proof. It is convenient to reiterate those passages from Ipp JA's judgment (omitting unnecessary citations): "35 The relevant principle in regard to civil cases was expressed by the High Court in the case of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, in a passage that has been repeated many times. The passage is: 'Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise … ' 36 This statement in Bradshaw was adopted in Luxton v Vines (1952) 85 CLR 352 at 358; Holloway v McFeeters (1956) 94 CLR 470 at 480 to 481; Jones v Dunkel (1959) 101 CLR 298 at 304; and Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161 and 168. 37 In Chamberlain v R (No 2) (1984) 153 CLR 521 Gibbs CJ and Mason J said at 536: 'When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …' 38 In Doney v R (1990) 171 CLR 207 Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 211 that when a lesser standard of proof than beyond reasonable doubt will suffice, 'the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved'. 39 On these authorities, it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged. ... 40 The standard of proof to be applied, together with a non-exhaustive list of "matters" to be taken into account, are now to be found in s 140 of the Evidence Act 1995 (NSW) which provides: 'Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceedings; and (c) the gravity of the matters alleged.' Section 140(1) is reflective of the law as stated in Bradshaw . Section 140(2) provides for no new principle. The approach, in a civil case, in determining whether circumstantial evidence leads to an inference of fraud 41 Certain principles have become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. The following are presently pertinent: (a) The jury must consider "the weight which is to be given to the united force of all the circumstances put together" (per Lord Cairns in … (b) The onus of proof is only to be applied at the final stage of the reasoning process: "[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case" ... (c) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful. (d) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw . 42 Mr Harrison placed considerable reliance on the approach expressed in Briginshaw v Briginshaw (1938) 60 CLR 336. Although Briginshaw has been quoted so many times, it is helpful to repeat Sir Owen Dixon's statement at 361 to 362: 'Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.' 43 The question arises as to the authoritative weight that, today, attaches to the observation that, where a serious allegation is made, 'reasonable satisfaction' should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences'. 44 … 45 It is worth repeating, I think, that in Chamberlain v R (No 2) at 536 Gibbs CJ and Mason J said that in a civil case 'the circumstances must raise a more probable inference in favour of what is alleged'. 46 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Mason CJ, Brennan, Deane and Gaudron JJ said at 171: '[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct .' 47 The more recent authorities to which I have referred, and s 140 of the Evidence Act (1995) (NSW) make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd , has the allegation been proved on a balance of probabilities." (Emphases added) 143 Accepting, as did the primary judge, that the inquiry is as Ipp JA stated at [47] of his judgment in Palmer, nevertheless that part of the judgment in Neat Holdings recorded at [46] of Palmer and which I have emphasised, needs to be considered in conjunction with the passage from Bradshaw v McEwans Pty Ltd extracted by Ipp JA at [35] of Palmer. In particular, I would in a case such as the present emphasise the following passage from the joint judgment of Dixon, Fullagar and Kitto JJ in Luxton v Vines at 358: "In questions of this sort, where direct proof is not available [the evidence being only circumstantial], it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture."

[55]

(m) There was credible evidence that the culpable taxi had the defects identified while T7154 did not. 147 In the light of the above factors, it was submitted that his Honour could not have been satisfied, given the criminal conduct of the driver of the culpable taxi, on the Briginshaw standard that T7154 was that taxi. 148 With respect to the foregoing factors, I would not accept that part of the submission which I have summarised in (h) above, and I would reject that referred to in (m). As to the latter, I have expressed my reasons at [125] to [138] above. As to the former, and as I observed at [59] above, I do not consider that the CCTV footage enables a positive finding to be made of vacant taxis being driven into Shelley Street via the ES off-ramp or a positive finding that none did so. On the other hand, and as observed above at [60], the evidence did support an inference that one or more of the 11 vacant taxis seen on that footage to be travelling north in Harbour Street in the direction of the ES off-ramp could, as a matter of probability, have proceeded to Shelley Street via the off-ramp, the only alternative route being across the Harbour Bridge which would be an unlikely course to be taken by a taxi which was vacant and seeking a fare. The same observation applies to the taxis not detected by Camera K2 due to its non-continuous cover of the relevant section of Harbour Street. 149 In this context it was not suggested that a taxi that by-passed the ES off-ramp and remained on Harbour Street could divert to avoid proceeding across the Harbour Bridge by exiting Harbour Street at some point before the Harbour Bridge was reached. In fact, at [66] of his reasons his Honour noted that a taxi travelling in a northerly direction on Wheat Road must enter Shelley Street when it is then faced with the choice of turning left into King Street or proceeding along Shelley Street to Erskine Street which would provide access to the northern and central precincts of the city. It seems to me that what his Honour was saying was that if a vacant taxi wished to avoid travelling across the Bridge so as to seek a fare in the northern or central part of the city, that taxi was required to proceed along Shelley Street to Erskine Street in order to achieve that objective. 150 Before turning to the Nominal Defendant's submissions, I should also record a further objective fact asserted by Mr Asim namely, that there were four ways in which a taxi could have reached Shelley Street from Regent Street, Redfern. Senior counsel for Mr Asim devoted a deal of time during oral argument on the appeal in seeking to persuade the Court that that was so. I am prepared to accept that there were in fact four ways in which Shelley Street could be reached other than via Wheat Road or the ES off-ramp. However, given Mr Rana's evidence, a deal of which I have extracted earlier in these reasons, the better view is that as a matter of probability Mr Rana was seeking custom at Darling Harbour, in particular in the Cockle Bay/King Street Wharf area, as a consequence whereof he proceeded from Redfern via George Street, Hay Street and Harbour Street. The critical issue was whether he entered the Wheat Road taxi rank or by-passed it and entered Shelley Street via the ES off-ramp. The onus lay upon the Nominal Defendant to establish the former on the balance of probabilities.

[75]

(a) Mr Rana's evidence was on its face credible 158 In my opinion the primary judge erred in concluding that the evidence was sufficient to establish on the balance of probabilities that T7154 was the culpable taxi. I have come to this view upon a careful consideration of the whole of the relevant evidence. It is to be appreciated that the present appeal is by way of rehearing pursuant to s 75A of the Supreme Court Act 1970. The relevant principles were recently referred to by this Court (Allsop P, Beazley and Basten JJA) in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [10] - [20]. An unsuccessful appeal to the High Court did not deal with the issue discussed in the joint judgment under the heading "Nature of the Appeal": Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537. Allsop P also referred to the nature of such an appeal in Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 at [3] - [4], as did Beazley JA in the same case at [9] - [13]. It is unnecessary to restate those principles except to observe that the primary judge's rejection of Mr Rana's evidence was not based on his demeanour. His Honour acknowledged (at [99]) that he gave his answers in an unemotional and apparently truthful manner. Nevertheless, as a general proposition some allowance must be made for the advantages of the primary judge who had the opportunity to absorb the totality of the evidence over the course of the trial. 159 So far as Mr Rana was concerned his evidence occupied only 31 pages of transcript with the consequence that it would not appear that the primary judge had any particular advantage in hearing his evidence which would have placed him in a better position than this Court to assess its veracity. 160 In any event, his Honour's finding at [110] that he did not find "particularly persuasive" the reasons advanced by Mr Rana as to why he might not have driven along Wheat Road on the morning in question, was based upon his finding that his evidence revealed an eagerness to explain the reasons why he would not have driven into Wheat Road on the morning of the accident and his further finding that Mr Rana revealed a consistent reluctance to accept that the easiest and most obvious place to collect fares at Cockle Bay was in Wheat Road (presumably at the Wheat Road taxi rank). Each of those findings caused his Honour to treat Mr Rana's evidence "with some caution". 161 Given that no demeanour issue arose with respect to Mr Rana's evidence which may have advantaged the primary judge when observing the manner in which he gave his evidence in the witness box, it is apparent that his Honour's approach to Mr Rana's evidence was based purely upon his answers to the questions asked of him rather than the manner in which he answered them. 162 Accordingly, in my opinion this Court is in just as good a position as the primary judge to assess whether his evidence revealed that he was eager to explain the reasons why he would not have driven into Wheat Road on the morning of the accident and further, whether there was a consistent reluctance on his part in giving his answers to accept that the easiest and most obvious place to collect fares at Cockle Bay was in Wheat Road. 163 Having carefully considered Mr Rana's evidence, in my respectful opinion neither of the criticisms of that evidence made by the primary judge were justified. In this respect it must be remembered that Mr Rana consistently denied that he was involved in the incident and, further, maintained that he had no recollection of where he had driven on the morning in question which, after all, occurred a little over five years prior to the time he gave evidence. Certainly, he had been aware since November 2004 that the incident had occurred and, although it was suggested to him that that knowledge coloured his evidence, he consistently denied that that was so. On the basis of his evidence alone, there was no reason in my opinion for regarding that denial as untrue.

[88]

(l) Finally, the fact that Mr Rana notified his presence in Shelley Street at 4.45am was of no significance as no evidence was led from him as to whether he was aware that by logging into Pyrmont at that time, his location in Shelley Street would be revealed. 165 In my respectful opinion there are a number of flaws in the primary judge's adoption of the above factors. They are as follows. His Honour's finding that Wheat Road (and presumably the Wheat Road taxi rank) was busy at the relevant time (factor (f)) was based upon the analysis of the CCTV footage between 4.32am and 4.48am from Cameras K1 and K2 which provided views of Wheat Road and partial views of Harbour Street. It was deduced that during that period 47 taxis entered the taxi rank whereas 11 taxis entered Wheat Road to the north of the taxi rank. 166 I can accept that taxi drivers regarded the Wheat Road area as a reasonable source of work given that some 58 taxis proceeded along Wheat Road in a 16 minute period. Nevertheless, there were vacant taxis during that period that by-passed Wheat Road. Eleven taxis, some of which were vacant, were picked up by Camera K2. For 45% of the relevant period that camera did not cover Harbour Street. Further, with respect to factor (f), my consideration of the relevant part of the CCTV coverage of the taxi rank did not reveal that the rank was busy at the time the plaintiff approached the culpable taxi: see [89] above. I would also discount the evidence of Mr Finch on this issue which had the difficulties which I have identified at [32] and [34] above. I prefer the evidence of Mr Baillie in his answers to Questions 134, 138 and 139 of his record of interview to the effect that there were not many people about but only a few and that it was not really busy. The primary judge erred in failing to refer to that significant part of Mr Baillie's evidence. 167 True it is that Mr Baillie's evidence in his record of interview was inconsistent with paragraph 6 of his statement to the police that there were lots of people in the taxi rank area getting into cabs. His Honour does not appear to have relied upon Mr Baillie's evidence at all with respect to his finding that the taxi rank was busy: he certainly made no reference to it. Rather he relied on the CCTV footage which in my respectful view does not support the finding that he made. What that footage does reveal and which is consistent with his Honour's finding that some 47 taxis proceeded to the Wheat Road taxi rank between 4.32am and 4.48am, is that there were more vacant taxis at the rank than there were potential customers. Furthermore, the evidence does not establish how many of those 47 taxis proceeding to the taxi rank in fact obtained fares. For all one knows, many of them may have by-passed or left the rank empty for the purpose of seeking fares further up Wheat Road. 168 The point of the foregoing is that in my opinion, in light of Mr Rana's evidence, the inference that he decided to by-pass Wheat Road and proceed directly to Shelley Street via the ES off-ramp where he was confident of obtaining a fare was a hypothesis that was equally available to the primary judge as was the inference (factor (e)) that he proceeded to the taxi rank rather than remain in Harbour Street as this was the best way to find out whether there was work at the rank. In my view both inferences were equally probable. Furthermore, I do not accept the premise in factor (e) which was said to be based on Mr Rana's own evidence: see [101] to [104] above. 169 Although the primary judge found that the CCTV footage revealed that persons seeking a taxi in Wheat Road were located not only at the taxi rank but also at other locations along that street (factor (c)) so that a taxi could enter Wheat Road to the north of the taxi rank and thereby by-pass it, it was Mr Rana's evidence that he would not normally do that as that road, which comprised a single one-way lane, became very congested as there was generally a deal of traffic in it most of the time. It seems to me that the evidence of Mr Rana was consistent with the primary judge's finding that over a 16 minute period some 58 taxis entered Wheat Road and, presumably, proceeded along its length with or without obtaining a fare. In my view no proper basis existed for rejecting Mr Rana's evidence as some recent invention to avoid the possibility of his Honour finding that he had arrived at Shelley Street via Wheat Road. In any event, Mr Rana volunteered in many of his answers that if there was work in Wheat Road he would enter it. In these circumstances I find it difficult to justify his Honour's rejection of Mr Rana's evidence on this issue unless it be inconsistent with other objective facts. 170 I have referred to his Honour's difficulty in understanding why Mr Rana would have continued down Harbour Street to the ES off-ramp rather than proceed into Wheat Road given that he had been driving for 30 minutes but had only succeeded in obtaining fares that occupied him for 6 to 7 minutes: (factors (d) and (g)). With respect, his Honour's observations to this effect at [106] of his reasons amount to no more than speculation. Mr Rana was cross-examined on this issue in the context of rejecting offers of jobs (at Black 292-293) in an exchange that I have recorded at [113] above. Although he accepted that if his taxi had been vacant for 14 minutes in the city area on a Sunday morning he would be getting rather anxious to obtain work, he was adamant that 14 minutes was not a long time not to have a job although it would be unusual for his taxi to be vacant for 26 minutes and to then reject a job. 171 Obviously, Mr Rana was speaking in generalities as he made it clear that there were simply no hard and fast rules. In my respectful opinion, his Honour's observations at [106] of his reasons have an element of hindsight to them or, at least, assume that a taxi driver in Mr Rana's position would always act in a particular manner if he had been on the road for 30 minutes and had only obtained fares for some 6 to 7 minutes. What his Honour says in the second sentence of [106] may well be logical but can be no more than speculation in the case of a relatively experienced taxi driver who understandably has his own pattern of behaviour when seeking out fares. 172 It is well accepted that as a matter of ordinary reasoning, the fact that, in given circumstances, a particular person has on prior occasions acted in a particular way, is often accepted as a basis for drawing an inference that, given those circumstances, he will be likely to act in that way on another occasion. The drawing of inferences based on human experience was discussed in revealing detail by Mahoney JA in Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222-227. At 227 his Honour observed "As I have said, the assumption is ordinarily made that there is at least an element of free will in each act, and it follows from this that human experience will not be that, in given circumstances, persons will always act in the same way. At best it will be that they usually or are apt to do so." 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.

[89]

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.

[90]

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.

[91]

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.

[100]

(i) The Cross-Appellant to pay the costs of the First and Second Cross-Respondent with respect to the cross-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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Cases Cited (20)