Q.103 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.
Q.104 Could you please carefully describe the taxi that was involved in this event?
A I really don't have any memory of the taxi. I know it was white. It was a white taxi. I think it was a saloon car. As far as what make it might even have been, I couldn't even …
Q.120 And that's when the taxi had driven off and Laurence has attached himself?
A. Yeah. At first it looked like it was just going to move to the front of the rank and then as the taxi moved, Laurence pulled the door handle a couple of times and then he held onto the roof of the taxi and took off.
Q.121 When Laurence approached the taxi, how was his manner? Was he making any noises or was he quiet or was he?
A. I would say he was quiet and just went up like anyone would do and just tried the door handle and it didn't …
Q.122 Did the claimant become aggravated or react in any way when he couldn't open the door?
A. No he just tried it a couple more … like, two or three times and then the taxi moved forward and he tried it again and it was, I don't remember him getting agitated at all, no….
Q.127 Could you describe how the claimant was clinging onto the taxi and on which side of the vehicle?
A. He was holding onto the … it was on the passenger's side. I'd have said he was hanging … he was holding onto either the roof rack that holds the sign on or the actual sign, taxi sign itself, so he would have been hanging down … he was hanging down the passenger side … the passenger side door on the front right across from the driver.
Q.128 It has been suggested that the front nearside window, which is the front passenger side window, of the taxi was open and the claimant had his left arm around the pillar which is in between the front and rear window. Do you have any knowledge of that?
A. No I'm not sure at all. I said that I wasn't … I thought the taxi windows were up, so … but that's just … it all happened so quickly, you can't really tell. By the way I saw it, I thought he had his hand on the roof rack and the taxi sign." (Exhibit 7)
16 The evidence of Mr Wright was:
"Q. Did you see what happened so far as Laurence was concerned?
A. I was on the … do you mean at the taxi rank?
Q. Yes?
A. I was on the phone at the time and it wasn't until someone actually said "Look at Laurence" that I turned around and saw him.
Q. What was the first thing you saw after someone said "Look at Laurence"?
A. I saw him on the side of a taxi going around a corner.
…
Q. Which side?
A. The left-hand side, the passenger's side. I can't even really tell you whether he was at the - the front or back window." (T.110.37)
17 The evidence of Mr Hassanein was:
"Q. As you were at and around the area where the taxis were leaving did you notice anything unusual about Mr Penrose's behaviour?
A. No.
Q. Well, what did you see Mr Penrose do?
A. I saw, I didn't, well, I didn't see him getting into the taxi. I saw, I looked around and I saw, I saw Laurence on the side of the taxi.
Q. Had you seen him approach the taxi or not?
A. No.
Q. How was your attention drawn to him being on the side of the taxi?
A. I was with, with two other members of the group at the time, Peter Wright and Neil Baillie. We, we were having a conversation and suddenly looked around and that's what we saw.
Q. All right. Now, describe if you could precisely what you saw?
A. It's difficult to, to remember details. I just, I just remember seeing him clinging to the front passenger door, which was something that did stand out to me. He was closer to the front passenger door than the rear.
Q. Could you see by what means he was clinging to the taxi?
A. No, it was difficult." (T.129.22)
18 The story is next taken up by two persons, Messrs Finch and Cooper, who saw the plaintiff become detached from the taxi. The evidence of Mr Finch was:
"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.
Q. In which direction were you looking, back towards the taxi rank or in the direction of the Harbour Bridge north?
A. No, I was looking back towards the taxi rank.
Q. Continue telling us in as much detail as you can what you saw?
A. It looked like the gentleman was holding on to something inside the cab with his left hand and looking towards the cab driver. Then the gentleman fell off the car, virtually right in front of me, and then the cab just kept driving away. He didn't slow down. I was watching at the time I was quite shocked to see the gentleman there and the cab was going at a reasonable speed, considering there was a man hanging off the side of the car.
Q. Are you able to make any estimate of the speed?
A. It would be roughly around the 50's, 50 k's an hour.
Q. You told us you saw the man's left hand. Were you able to tell whether the front passenger window of the taxi was open or closed?
A. The window was open. I could see the left hand from my angle was over inside the cab, so the window was down.
Q. Were you able to see the right hand of the man hanging from the taxi?
A. No I couldn't see the right hand.
Q. You said he was facing the driver?
A. Facing him in the cab.
Q. Did you see the driver yourself or not?
A. No I couldn't describe the driver.
Q. Was there anything about the roadway that you noticed at the point where the man fell from the taxi?
A. Yes. It was over a speed hump. It made the gentleman dislodge off the side of the car." (T.67.43)
19 The evidence of Mr Cooper was:
"A. I just - I remember I heard an engine basically as I walking towards Wheat Road, which is the route I was going to take. Something sort of, you know, came to my attention that it was a car engine as if it was speeding up. And it was very quick because it - it did sort of come from literally nowhere basically. There was - it came from behind a pylon or a building. And from what I saw, I saw a person clinging to the side of that taxi.
Q. And how far was the taxi and the person from you when you first saw it?
A. It would have been 15 to 20 metres.
Q. Could you tell how the person was clinging to the taxi?
A. At first he was clinging to the - the top, that which holds the lights.
Q. The light bar?
A. The light bar, yep. He was - he was holding onto that which he then slipped off and was clinging to the pylon between the two windows.
Q. The pillar you mean?
A. The pillar, sorry, the pillar. And briefly held onto that and then all of a sudden slipped.
Q. Could you see from your position whether the front passenger side window of the vehicle was up or down?
A. The front passenger side - I believe it was down because of the way he was holding the pillar.
Q. And in which direction was the man facing who was clinging to the taxi?
A. His head was facing the front of the car, I guess, so his feet were at the back.
Q. Were his feet on the ground when you saw him?
A. When he - they went on the ground when he grabbed the pillar.
Q. I see. Before that where were his feet?
A. I would say in the air because he was holding onto the light bar.
Q. Were you able to see the taxi driver?
A. No."(T.85.1)
20 There was other evidence which confirmed that the speed bump to which reference was made in the evidence of Mr Finch was approximately 325 metres away from the point where the plaintiff had become attached to the cab. I was impressed with the evidence of Mr Finch, who appeared to me to have a clear recollection of what he saw. On the basis of his evidence, I am satisfied that the window to the front passenger door was open. I am satisfied that the plaintiff became detached from the taxi when it passed over the third speed hump. I am satisfied from the totality of the above evidence that the driver of the taxi was well aware that the plaintiff was attached to the taxi from the time when the taxi commenced to move. I am also satisfied that the plaintiff took no threatening action nor did anything else which provided a reasonable basis for the taxi driver behaving in the way in which he did. I am satisfied that from the moment the taxi commenced moving, it steadily accelerated until the plaintiff was dislodged from it.
21 Some parts of the plaintiff's progress while attached to the taxi were picked up by various CCTV cameras. Unfortunately, the footage from the cameras is not continuous in the sense that the cameras took various "snap shots" which show the taxi with the plaintiff attached, but not on a continuous basis. A further difficulty is that on occasions the CCTV cameras panned across the area and only briefly picked the taxi's movements. Finally, the quality of the footage is very poor and it was impossible to identify the number plate of the taxi. A view of the accident scene confirmed that the CCTV footage was misleading in relation to distances. Objects were in fact much closer than they appeared in the CCTV films.
22 A report of Mr Keramidas, traffic engineer, was tendered in the plaintiff's case (Exhibit C). The conclusions in that report were not challenged and it was admitted by consent. The conclusion of Mr Keramidas is in accordance with the evidence of Mr Finch, i.e. that it was the third speed hump which caused the plaintiff to be dislodged from the taxi. He calculated the speed of the taxi at that point to be approximately 45 kph. He thought the total time during which the plaintiff was attached to the taxi before he was dislodged was between 35 and 40 seconds. He was able to do this by reference to the CCTV films. He assessed the total distance over which the incident took place at 345 metres. A detailed depiction of the movement of the taxi along Wheat Road is set out in the plan, exhibit D.
23 Again by reference to the CCTV footage, Mr Keramidas concluded that the speed of the taxi when it exited the "turnout" where the taxi rank was located and re-entered Wheat Road, was in the order of 27 kph. The distance from where the plaintiff became attached to where the taxi turned out of sight was 23-25 metres.
24 In order to understand the competing submissions, it is important to have an understanding of the configuration of the road where the incident took place. The following description is taken from the report of Mr Keramidas. Not only did Mr Keramidas inspect the site but he also surveyed it.
"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 20 km/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 20 km/h speed zone sign and 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.
…
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 roadway.
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."
25 The CCTV film did not capture the point at which the taxi was set in motion by its driver. When the taxi with the plaintiff attached to it first came into view, it was already in motion and increasing its speed while still within the turn-out. The taxi turned into Wheat Road and drove in a northerly direction. Other CCTV cameras captured images of the taxi and the plaintiff as they passed through the field of view of each camera. When the plaintiff was dislodged by the third speed hump, his body travelled approximately 20 metres until he came to rest close to where Mr Finch was standing, on the western side of Wheat Road near the rear of the Sydney Aquarium.
26 As Mr Finch ran to assist the plaintiff, he looked to his left and saw the taxi continue along Wheat Road. I am prepared to infer from photographs, maps and the view that the taxi proceeded into Shelley Street. Wheat Road becomes Shelley Street just north of King Street.
27 Mr Finch called 000 on his mobile phone. When asked to estimate how much time had expired between the moment when he heard the plaintiff's head hit the roadway and when he dialled 000, Mr Finch estimated one or two minutes, definitely no longer than two minutes.
28 The ambulance service Incident Detail Report (exhibit M) shows that the call was received at 4.46.52am. His telephone records show that Mr Finch made his 000 call at 4.46am. Accordingly, the time when this incident occurred can be calculated with some precision. The parties were prepared to accept between 4.44am and 4.45am. It should be noted that the times recorded on the CCTV films differed, one from the other, and were not correct. They accurately showed the amount of time over which events occurred but not the particular time at which they occurred.
29 The CCTV footage was sourced from seven cameras. Exhibit F was a DVD with footage taken from camera 103. 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. 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. 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.
33 The contents of these exhibits were usefully collected by Mr Bailey, the engineer qualified on behalf of the second defendant. This compilation became exhibit 2D(7). Some still photographs taken from the various DVDs are set out in his report (exhibit 2D(5)) between pages 37 and 43. Exhibit 2D(7) also contains an enhanced version of the relevant camera footage from cameras 103 and 44 formatted in such a way that the contents of that footage is synchronised to depict a common event.
34 The view which took place on the morning of Day 3 of the hearing enabled the precise location of each of those cameras to be identified. That view revealed that there had been significant changes made to the layout of the area between 25 January 2004 and 12 May 2009, when the view took place. The configuration of Wheat Road remained the same but that of Harbour Street (a major street to the east of Wheat Road and running parallel to it) and the taxi rank had changed. In 2004 the entrance to the taxi rank was south of the Druitt Street overpass and Harbour Street was located further to the west. There was an issue as to the extent to which a driver travelling north in Harbour Street would have been able to observe what was happening on the taxi rank in January 2004.
35 Despite the poor quality of the CCTV footage, the following information was able to be obtained. The taxi involved was a Ford Falcon station wagon which was white in colour. It carried the Taxi Combined Services (TCS) livery and markings. It was either the EL model, which was produced from 1996 until mid 1998, or the earlier EF model.
36 The basis for this latter conclusion is set out in the reports of Mr Lambert, the engineer retained on behalf of the first defendant (exhibit E), and of Mr Joy, another engineer retained on behalf of the first defendant (exhibit 1D(20)). Those model station wagons had a distinctive pillar colour at their rear.
37 The parties also accepted that the taxi involved had a small format roof top taxi sign and did not have any "taxi advertising" on it. It was agreed that the taxi sign remained illuminated in the CCTV footage. The parties agreed that the number plate, to the extent that it could be seen, was a single plate of darkish colour consistent with a NSW "T" or "TC" prefix taxi number plate and not consistent with a yellow and black number plate style.
38 The EF model predated the EL model and manufacture of it ceased in about 1996. Relying upon exhibit K and what he described as the "six and a half year rule", Mr Lambert was of the opinion that the taxi depicted in the CCTV footage was an EL model. The six and a half year rule was a rule in force in Victoria and New South Wales to the effect that taxis should be no older than six years, but six months of grace was allowed from the date of manufacture. It was the opinion of Mr Lambert that exhibit K showed a dark space between the taxi headlights consistent with the distinctive front grille which the EL model had, but which was absent from the EF model.
39 Mr Joy expressed no opinion on that issue. Mr Bailey disagreed with that opinion. He said that despite the six and a half year rule, taxis older than six and a half years were operating in Sydney in January 2004. While he was prepared to admit that there was a shadow between the headlights of the taxi in exhibit K, he was not able to determine that this shadow represented a front grille.
40 On this issue I prefer the evidence of Mr Bailey. There was clear evidence of EF model taxis operating in January 2004. In addition, I have looked at the relevant image on exhibit K on a number of occasions, together with the reproduction on page 43 of Mr Bailey's report. I am unable to see what apparently Mr Lambert saw and I am not satisfied that the CCTV footage shows a grille between the headlights of the taxi.
41 I am, however, satisfied for the reasons set out above that the taxi involved in the incident was either a white Ford Falcon EL or EF station wagon in TCS livery.
42 The taxi claimed by the plaintiff and the first defendant to be the one involved in the accident carried taxi plate T7154. As of 25 January 2004 the taxi carrying that plate was an EL model, white Ford Falcon station wagon with TCS livery. It was owned by the second defendant. According to the records of Mr Sidhu and those of TCS, the driver of that taxi on the morning of 25 January 2004 was Mr Ravinder Singh Rana. Mr Rana gave evidence in the trial. He had been driving taxis for two years by 2004. He had no recollection one way or the other as to whether he was in fact driving that taxi on that morning, but accepted that if he were logged in, he was driving the vehicle. He had no recollection of where the taxi drove that morning but denied that he had been involved in any incident such as that which had led to the plaintiff's injuries.
43 In January 2004 Mr Sidhu managed a number of taxis on behalf of their owners of which taxi T7154 was one. He said that such taxis, under his management, were inspected daily and any defects were repaired. Any repairs which were carried out were recorded in a book which 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 normally be recorded. This would be done so that the owner could be charged for the cost of the repair.
44 There was no record of any repair to a rear brake light in respect of taxi T7154.
45 The importance of this evidence was that Mr Bailey was of the opinion that the nearside rear brake light on the taxi involved in the incident was not working on the night of the accident. He reached that conclusion as a result of his observations of the CCTV footage (exhibit F) which showed the taxi applying its brakes before turning into Wheat Road. He was of the opinion that if one accepted the evidence of Mr Sidhu that such defects would be noticed and repaired, this was an indication that the taxi involved in the incident was not the one driven by Mr Rana on that morning.
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.
47 There are two additional reasons for reaching that conclusion. 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.
48 The other reason is this: Mr Rana commenced work with the taxi at 4.08am. Since the rear lights were working, a problem with one of the rear brake lights could easily have been overlooked. This is particularly so if, as seems likely, Mr Rana started work from his home. Similarly, if a minor repair such as the replacement of a rear brake light were carried out, it may not necessarily be recorded in the maintenance book which Mr Sidhu and his company kept. The evidence was silent as to what, if anything would be done if the intensity of one brake light were greater than the other and whether Mr Sidhu would regard that as a defect.
49 For those reasons, I am not prepared to find that the presence or absence of a defective nearside brake light in the taxi involved in the incident is determinative of whether it was taxi T7154 or not.
50 Photographs of taxi T7154 show it to have had a small amber light above the roof top taxi sign. This light is designed to activate when the taxi is vacant. Accordingly, as well as the taxi sign being activated, the small amber light is also activated when the taxi is vacant. The purpose is to indicate clearly during daylight whether a taxi is vacant or not.
51 Mr Bailey was of the opinion that the CCTV footage did not reveal the activation of the small amber light above the taxi sign on the taxi involved in the incident. This is despite the fact that the taxi sign was illuminated at the time. He concluded that this meant that the taxi involved in the incident did not have such an amber light and so was not taxi T7154. Photographs of T7154 show it to have had such a small amber light in 2004.
52 I do not agree with that conclusion. Because of the poor quality of the CCTV footage, the illumination of the taxi sign created a general aura in its vicinity. This is clear from a viewing of any of the CCTV footage. Although a number of taxis are shown, on very few can the small amber light be seen when the taxi sign is illuminated. This is despite the fact that most of those taxis would have had such a light. I am of the opinion that depending upon the angle from which the CCTV footage is taken, the presence or otherwise of the small amber light is subsumed by the much larger illumination of the taxi sign.
53 Evidence was given by Mr Millner, who was a data analyst and investigation officer employed by TCS. He had been employed in that capacity for 10 years. He said that taxis within the TCS organisation were each fitted with a GPS (global positioning system) which if it were working correctly, would enable the position of the taxi to be identified on particular occasions. The GPS was connected to the taxi's onboard computer. As a result, whenever a driver signed on or signed off or pressed a button to indicate that the taxi had become vacant or logged into a suburb, or did anything which involved the operation of the computer, the position of the taxi would be automatically recorded in the database kept by TCS.
54 This database was called the "logged taxi activity" (LTA) database. For drivers within the TCS organisation the LTA would record every action on the computer by every driver every day. 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 did something on the computer, effectively a snapshot of the position of the taxi at that moment would be recorded by the GPS and transmitted to the LTA database. Those snapshots were stored in the LTA database. The database recorded snapshots only. There was no continuous record of a taxi's movement.
55 A potential problem with that process was the accuracy of the GPS. If the GPS was not working properly, or the aerials were not properly adjusted, or there was some interference with the signal, an incorrect location would be recorded. A malfunction of the GPS on a taxi was not an unusual occurrence, although there was no clear evidence as to its frequency. It seems that when the GPS was found to be not operating properly, it was corrected. The level of accuracy of the GPS when it was working correctly was 50 metres.
56 I accept that on the morning of 25 January 2004 the GPS on taxi T7154 was working correctly. This was established by reference to the movements of taxi T7154 between 21 and 27 January 2004. An examination of the LTA database and bookings which were accepted by taxi T7154 showed that the GPS was operating accurately. The information upon which that conclusion is based is to be found in exhibit A.
57 The LTA database showed that on the morning of 25 January 2004 Mr Rana signed on at 4.08am (exhibit A, p 65). He was at Kogarah at the time. Since he resided in Kogarah, I infer that he started from home. Between then and 4.30am he had only one paying customer for a short trip between Kogarah and Brighton-le-Sands which took four minutes. Otherwise his taxi was vacant.
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 Millner 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.
63 It was the case for the plaintiff and first defendant that between 4.37am when taxi T7154 was in Regent Street and 4.45am when it was in Shelley Street, it had ample time to be involved in the incident involving the plaintiff at the Wheat Road taxi rank. Mr Bailey accepted that the taxi could travel directly to Shelley Street from the last GPS location in Regent Street at 3.37am, covering approximately 2.5 kms at an average speed of 19 kph or at a higher speed with a period of waiting. There was no direct evidence of where T7154 had been between 4.37am and 4.45am
64 It was common ground that at this time on a Sunday morning Wheat Road was likely to have many persons seeking taxis. There were a number of bars adjacent to Wheat Road, together with the popular Home Nightclub. A taxi travelling from Regent Street wishing to take advantage of that fact would be likely to travel along Hay Street, which becomes Harbour Street after Goulburn Street. There was evidence from Mr Rana that persons might be seeking taxis in Shelley Street because of its proximity to the Cargo Bar and The Loft.
65 Mr Lambert and Mr Bailey analysed 16 minutes of the CCTV footage between 4.32am and 4.48am when there was footage from cameras 103 and 44 providing views of Wheat Road and partial views of Harbour Street. At that time 47 taxis entered the taxi rank, 11 taxis entered Wheat Road directly and 11 taxis (some vacant) continued north on Harbour Street and either entered Shelley Street via the Erskine Street off ramp, or travelled directly over the Harbour Bridge. They concluded that taxi drivers seeking fares near Cockle Bay used three alternatives: