Penrose v Nominal Defendant & Anor

LEGISLATION CITED : Motor Accidents Compensation Act 1999

Almeida v Universal Dye Works Pty Limited (No 2) [2001] NSWCA 156 Bell v Veigel; Bell v Broughton [2008] NSWCA 36 Bradshaw v McEwans Pty Limited (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED : Bullock v London General Omnibus Co [1907] 1 KB 264 Joslyn v Berryman [2003] HCA 34, (2003) 214 CLR 552 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 55,605

Laurence Howard Penrose by his tutor Kevin Penrose - Plaintiff PARTIES : The Nominal Defendant - First Defendant Mohamad Ramzan Asim - Second Defendant

Mr KP Rewell SC/Mr MA Cleary - Plaintiff COUNSEL : Mr I Roberts SC/Mr D Toomey - First Defendant Mr DE Grieve QC/Mr TJ Clarke - Second Defendant

Teakle Ormsby Conn - Plaintiff SOLICITORS : McCourts Solicitors - First Defendant Stephen Vardanega - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

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

JUDGMENT 1 HIS HONOUR: Nature of Proceedings At 4.45am on 25 January 2004 the plaintiff, who was then 22, suffered catastrophic injuries in a motor accident in Wheat Road, Cockle Bay. He suffered very severe head injuries, including severe traumatic brain damage. He is effectively a tetraplegic. He is PEG fed. He is unable to communicate. His vision is impaired. He is incontinent. Since February 2005 he has been an inpatient at a nursing home in Annandale. 2 There is little dispute as to the general circumstances of the accident. The plaintiff was attempting to get into a taxi when it drove away. The plaintiff either held onto the taxi or otherwise became attached to it and was dragged behind it for over 300 metres before becoming detached. Inquiries were made on behalf of the plaintiff to identify the owner and driver of the taxi but those inquiries were unsuccessful. Proceedings were then brought by the plaintiff against the Nominal Defendant, pursuant to s 34 of the Motor Accidents Compensation Act 1999 (MAC Act). The Nominal Defendant has admitted for the purposes of s 34 that due inquiry and search were made to establish the identity of the motor vehicle concerned. 3 Sometime later inquiries by the Nominal Defendant (now the first defendant) produced some evidence that taxi registered number T7154 was the motor vehicle involved in the accident. This information was communicated to the plaintiff. Upon receipt of that information the plaintiff by an Amended Statement of Claim filed 13 November 2008 added the second defendant to these proceedings. The second defendant was the owner of that taxi at the time of the accident. 4 The issues to be decided are whether on the balance of probabilities, taxi T7154 was the taxi involved in the accident and whether contributory negligence should be found against the plaintiff.

Factual background 5 Unless otherwise indicated, I find the factual background to be as follows. 6 Between 5pm and 6pm on Saturday 24 January 2009 six friends including the plaintiff gathered at an apartment in Maroubra. All of them were members of the Randwick Rugby Union Club. Some of them had been playing indoor cricket that afternoon. Two of them, Messrs Houston and Hassanein, occupied the apartment. Apart from the plaintiff, the others present were Messrs Baillie, Brennan and Wright. All six young men were aged between 20 and 24. 7 These young men remained in the apartment until approximately 11pm - midnight. During that time they consumed a quantity of full-strength beer in the form of stubbies and watched DVD's. No one paid any particular attention to how much beer was consumed by the plaintiff. The evidence was that he was a moderate drinker and accordingly I accept that he drank no more than the other persons who were present. 8 An indication of how much liquor was consumed can be seen by the estimates given by Messrs Houston and Hassanein. Mr Houston thought he would have consumed between six and eight beers while in the apartment and Mr Hussanein estimated his consumption at between one and one and a half beers per hour. During the time at the apartment, a substantial quantity of take-away food in the form of chicken, hamburgers and chips was purchased and consumed. 9 Between 11pm and midnight the group departed in two taxis for the Wallaby Bar which is located at Cockle Bay. It apparently took about half an hour to travel to that location. Once again no one paid particular attention to how much liquor was consumed by the plaintiff while he was at the Wallaby Bar. The estimates of liquor consumed at the Wallaby Bar varied between four and six drinks. It was not clear whether the plaintiff was drinking beer or bourbon and coke while at the Wallaby Bar. 10 I am satisfied that while at the Wallaby Bar the plaintiff did not consume more than six drinks and probably consumed less. This is because the cost of drinks at that bar was considerably higher than in a hotel and the plaintiff was a student with only limited funds. Finally, there was quite a lot of dancing taking place at the Wallaby Bar in which the plaintiff was an active participant. 11 All of the group gave evidence at trial, except for the plaintiff and Mr Baillie. Mr Baillie's evidence was by way of statements since he had returned to Scotland in June 2004. The effect of that evidence was that while all of the group were affected by the liquor which they had consumed, they were not drunk or showing any obvious signs of intoxication such as slurring words or interference with motor functions such as walking. None of the group noticed anything unusual about the plaintiff to indicate that he was any more affected by the alcohol which he had consumed than they were. 12 I have concluded that the plaintiff's state of sobriety when he left the Wallaby Bar was similar to that of his companions, i.e. that he was affected by liquor but not to a significant degree and certainly not enough to justify the description that he was drunk. I accept that he was showing no obvious signs of intoxication. In any event, the quantity of liquor consumed over a period of between 10 and 11 hours interspersed with activities such as dancing and consuming food was not particularly large for a group of fit young men such as these. 13 The group left the Wallaby Bar together at approximately 4am on 25 January 2004. They then split up. Messrs Houston and Brennan departed separately and were not able to provide any information as to subsequent events. 14 The evidence as to what happened next was as follows:

Mr Baillie - police statement - 25 January 2004: "7. We walked towards the first two taxis 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 Laurence walk ahead of the rest of us by about five (5) metres. I saw Laurence approach the front passenger side door of the taxi and attempt to open the door. I saw Laurence 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 Laurence was attempting to open the door on start to move forward. The taxi was moving faster than walking pace and 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 Laurence, I saw Laurence take a hold of. something on either the side of the taxi or the roof area with both hands and lift both his feet up so that they were parallel with the ground. As Laurence did this I saw the taxi accelerate hard and drive away at a fast pace down Wheat Road headed North. 10. I saw Laurence was still holding on to the side of the taxi with both feet off 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." 15 Mr Baillie - statement made to investigator - 29 April 2004: "Q.99 What was the Claimant's purpose in approaching the subject taxi? A. To get in and go home.

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:

(i) Entered the taxi rank directly from Harbour Street.

(ii) Bypassed the taxi rank and directly entered Wheat Road from Harbour Street.

(iii) Bypassed the taxi rank and most of Wheat Road by proceeding along Harbour Street directly and entered just before Shelley Street via the Erskine Street off ramp. 66 A taxi travelling in a northerly direction on Wheat Road must enter Shelley Street. 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. 67 The parties agreed that there were only two EL or EF Falcon taxi wagons seen in the CCTV footage of Wheat Road during the period from 15 minutes before the plaintiff took hold of the taxi until 10 minutes after that event. Only one other EL or EF Falcon taxi wagon passed along Wheat Road in that period. It did so approximately eight minutes ahead of the taxi involved in the incident. That other taxi wagon was not in TCS livery, but had a coloured stripe along its roof consistent with it being part of the RSL fleet. 68 CCTV footage of Harbour Street appears to show a white EL or EF taxi wagon travelling in the right lane. That taxi wagon appears to be vacant with an illuminated taxi sign and amber light but that is not particularly clear. It is not clear what livery that taxi wagon was carrying. It is difficult to specify the precise time at which that taxi wagon was picked up by the CCTV footage on Harbour Street but it was at least 9 minutes before the plaintiff became attached to the taxi involved in the incident. Accordingly I have concluded that this taxi wagon shown to be on Harbour Street at that time could not have been T7154. Because the CCTV coverage of Harbour Street was not continuous during this period, other white EL or EF taxi wagons may have driven on that road but not have been picked up by the camera. 69 The first defendant sought to strengthen its position against the second defendant by attempting to exclude other white EL or EF Ford Falcon taxi wagons in TCS livery from being in Wheat Road at the time that the incident occurred. It accepted that it could not entirely exclude all other vehicles of that kind. Nevertheless, it submitted that it was able to exclude all but a relatively small number of that kind of vehicle which significantly reduced the likelihood that one of the vehicles not excluded was the one involved in the incident. 70 In carrying out that task, the first defendant relied upon lists of taxis and information provided by the RTA and TCS. The RTA provided three lists of what were apparently EL station wagon motor vehicles operating as taxis on 25 January 2004. The first list, which was provided to the police, contained 140 registration numbers (exhibit 1D(9)). Subsequently the RTA provided a second list of such motor vehicles. 220 registration numbers were on that second list (exhibit 1D(15)). The final list was provided by the RTA on 8 May 2009. It contained a list of 253 registration numbers. Mr Youssef, an analyst programmer employed by the RTA, produced each of those lists. He explained why the lists differed. He explained why the most recent list was different from the earlier two: "I use the criteria that, as before, a white Ford EL Falcon whose usage as at 25.1.2004 was a taxi or standby taxi. This, in this particular case as opposed to all the others, I used the table in the database called "the vehicle history table". The purpose for that was I could identify the attributes of the vehicle as at that particular date. For example, if the vehicle on that date was red and has since been changed to green, then I would be picking up red vehicles, but in this case I'm picking up white vehicles. But if the vehicle for example was no longer white but was white on 25.1.2004 I would select that vehicle if it matched the other criteria." (T.199.27)

Mr Youssef created a special computer program which selected that data and produced a list based on it (exhibit 1D(16)). 71 The first defendant submitted that this third list produced by Mr Youssef was the most accurate and comprehensive list of such vehicles, i.e. white EL or EF Ford Falcon taxi wagons. It accepted that the list presupposed the accuracy of the RTA databank. 72 In its submissions the first defendant sought to exclude 287 taxis. That number was arrived at as follows:

(i) 252 taxis listed in the third RTA list, exhibit 1D(16), i.e. 253 less T7154.

(ii) 15 taxis which were on the first RTA list, exhibit 1D(9), which did not reappear in the two subsequent lists.

(iii) 3 taxis in the second RTA list, exhibit 1D(15), which did not appear in the other two RTA lists.

(iii) 7 taxis which were listed in exhibit 1D(21) (this was a list of white EF Ford Falcon taxi wagons produced by the RTA on 30.8.07 in answer to a subpoena).

(iv) 9 of the taxis referred to in exhibit A (this was a list of 10 taxis provided by TCS to the police following the incident as being taxi wagons likely to have been in the Darling Harbour at the time of the incident). Because this list included T7154, only 9 taxis needed to be excluded. 73 In relation to those 287 taxis, various attendances were made from time to time at the TCS premises by paralegals and solicitors from the first defendant's solicitors. The purpose of those attendances was to identify which of those 287 white taxi wagons were part of the TCS fleet as of 25 January 2004 and where that was confirmed, to identify if possible where that taxi wagon was at the time of the incident. Those inquiries continued up to and during the trial. 74 There was no catalogue or index of taxi files at the TCS premises. The files, by reference to the registration number were stored in a large locked room, generally in chronological order, by year. If a file was not located, this normally meant that at the time of the inspection that taxi was not part of the TCS fleet. No process or protocol existed to advise TCS staff when a file had been misplaced or had otherwise been removed from that room. However, there were files in relation to taxi plates which had been part of the TCS fleet but had subsequently gone to another fleet. In other words there did not seem to be consistency as to what inferences could be drawn if a file in relation to a particular taxi plate was not present at the time an inspection was made. As well as written requests for information, there were in excess of 10 attendances at the premises of TCS for the purpose of inspecting files. 75 In relation to those 287 taxis, I do not propose to deal with each individual argument in relation to each taxi plate. What I propose to do is to generally indicate my findings as to what taxis I consider have been excluded and the basis for my having reached that conclusion. 76 The 9 taxis referred to in exhibit A can be removed from consideration. It is clear from photographs and other information that those taxi wagons were all AU models. 77 I accept the submissions of the first defendant that those taxis on the list of 287, which were country taxis with the prefix TC, can be removed from consideration. Justification for that conclusion is set out in the first defendant's submissions at T384 and T387.49. It is clear from that analysis that those taxis were in fact based in country areas and there is no evidence placing them at Darling Harbour at this time. I accept, as did the first defendant, that what cannot be excluded is that a country taxi was contrary to the regulations, operating in the Darling Harbour area when the incident occurred. However, it does seem unlikely that such a taxi would happen to be an EL model taxi wagon carrying TCS livery. 78 The first defendant submitted that where LTA records indicated that at a particular time a taxi signed off and then some hours later the same driver signed on and that gap was consistent with either the driver taking time off to rest or sleep or taking a day off from driving the taxi, the Court should infer that this is in fact what happened. Mr Bailey disputed that approach. He contended that the Court should take account of the possibility that during the period of hours when there was no LTA record, the particular taxi could have been operating without its onboard computer being activated. His position was that the mere fact that the taxi was not generating LTA activity was not sufficient for an inference to be drawn that the taxi was not operating at the time. 79 An example of Mr Bailey's approach is as follows. In relation to taxi T3407, the LTA showed that a driver signed off at 3.31am on 25 January 2004 at Mortimer Street, Minto and that the same driver signed on at 11.22am at Mortimer Street, Minto that same day. Mr Bailey disputed that an inference should be drawn that the driver was resting during that 8 hour period and that the taxi was not operational during that time. The following questions and answers indicate his approach: "Q. The LTA document shows that sign on took place at 11.22, does it not? A. That's correct. Q. You in your report say that taxi cannot be eliminated from consideration? A. Correct. Q. It is your proposition, is it, that someone having signed off at 3.31am, a taxi driver or a person has driven this taxi from Minto to Darling Harbour without activating his meter at all, that right? A. That's a probability, yes. Q. A probability, and has then continued to use the cab up until 11.22, again without activating his meter at all? A. I've got no knowledge of whether he used or he or she used it or not. I agree it could physically be driven from Minto to Wheat Road and from Wheat Road back to Minto. That's all I can talk about. I don't know whether it was used as a cab or what was done with it." (T.354.42) 80 I do not accept the approach of Mr Bailey on the exclusion issue. It seems to me that Mr Bailey's approach was somewhat partisan and the use of the word "probability" in his answer was quite unjustified. In situations where the LTA showed that a particular driver signed off at a particular location and then indicated that the same driver signed on at the same location, I am prepared to infer that the taxi was out of use during that period and could not have been the taxi involved in the incident in Wheat Road. 81 Similarly, I am also prepared to infer that where the LTA shows that a particular taxi became engaged at a particular time and at a particular location and then became vacant at a different location and where that period of time included the time during which the incident occurred and the two locations were away from the Darling Harbour area, the taxi can be excluded from consideration. For example, taxi T168 became engaged at 4.38am in Cleveland Street and became vacant at 5.09am at Campsie. I am prepared to infer that that taxi and other taxis in a similar situation can be excluded from consideration. 82 In the case of a number of taxis, the evidence referred to by the first defendant showed that those taxis were a sedan and not a station wagon. In other cases the taxis were shown to be an AU model. Standby taxis were eliminated because regulations required the two number plates to be displayed and the CCTV footage showed that the number plate on the taxi involved in the incident was a single number plate. The first defendant conceded the possibility that a standby taxi could be used contrary to regulations. The 7 EF taxis were similarly eliminated (T.389.25, T.391.48). 83 Despite that process of elimination, the first defendant conceded that the following taxis could not be eliminated from consideration: T3006 - the registration number of this taxi was wrongly recorded and so no search was ever carried out in relation to it. T141 - based on a later registration certificate, this taxi was regarded as an AU model. The first defendant conceded that this did not establish that in January 2004 the taxi plates could not have been on an EL model. T3743 - this taxi was shown to be in Child Street, Woolloomooloo at 4.48am on 24 January 2004. The first defendant conceded that it was possible that this taxi might have been able to reach this location if it were involved in the incident at 4.45am. T3899 - the LTA showed this taxi as becoming vacant at 4.37am and engaged at 5.01am and its location is simply recorded as "city". The first defendant conceded that this taxi might have gone to the Darling Harbour area without logging into that area. T4084 - there was no record of this taxi when searches were carried out at TCS. T4750 - again, no record of this taxi when searches were carried out at TCS. 84 T4467 and T5471 were both in the city but the LTA records showed them to be inactive between 3.51am and 4.45am in the case of the first taxi and 4.11am and 6.49am in the case of the second taxi. The first defendant conceded it was possible that those taxis could have been used without the meter being engaged during that period. 85 Taxis T6101, T6114, T6118, T6167 and T6188 cannot be eliminated. Those taxis appear to be standby taxis but on the morning of the incident they might have been taxis operating in the conventional way without their computers being used. 86 T6340 - there were no records of this taxi held by TCS when the inspection took place. T7228 - this taxi was in the city between 3.50am and 6.46am when it logged in vacant at Leichhardt. Although there was nothing to suggest that it enquired for work at Darling Harbour, it could not be excluded. T9068 - this taxi logged in at 3.37am as vacant in the city and remained in the city until 6.38am when it accepted a job which took it out of the city. It did not log in at any time to Darling Harbour but could not be excluded. T7432 - it is not known whether this taxi was part of the TCS fleet or not on the day of the incident. 87 In summary, I am satisfied that of the 287 taxis referred to, the first defendant was unable to exclude 16 from possibly being the taxi wagon involved in the incident. 88 It was, of course, impossible for the first defendant to exclude all white EL or EF Ford taxi wagons from being the one involved in the incident in Wheat Road. This is because there existed what are known as "phantom taxis". These were described by Mr Millner as: "Typically they operate with stolen or otherwise irregularly obtained plates. Typically they have no means of communication and cannot be located or recorded as to location by Taxis Combined." (T.175.26) 89 There was also the possibility of a taxi driver tampering with the equipment in a taxi or "if a driver does not sign on for a shift and does not use the inboard computer there is no way of locating that taxi through logged taxi activity". (T.175.36) Mr Millner agreed that while some taxi drivers neglected or forgot to log on, they usually used the inboard computer and fare meter so that the taxi's location was recorded on the LTA database. (T.176.18)

Consideration Identity of Taxi 90 The primary position of the plaintiff was that T7154 was the taxi involved in the incident in Wheat Road and that liability should be found against the second defendant. If the Court were not so satisfied, then liability should be found against the first defendant. The plaintiff submitted that his position was similar to that of the plaintiff in Bell v Veigel; Bell v Broughton [2008] NSWCA 36 where the plaintiff had to succeed against one or other of the defendants. In that regard, the plaintiff was entitled to adopt "an agnostic stance as to the identity of the offending vehicle" (Mason P - [196]). 91 The plaintiff and the first defendant submitted that the taxi responsible for his injuries was the only EL or EF Ford taxi wagon to travel along Wheat Road during the period eight minutes before the incident and ten minutes afterwards. The LTA database showed that a taxi of that description, namely T7154, was in Shelley Street at Cockle Bay at 4.45am on 25 January 2004, only a short distance away from the point at which the plaintiff became detached from the taxi. They submitted that if T7154 had turned into Wheat Road, then it was the taxi involved in the incident. This must follow because at 4.45am T7154 was in Shelley Street, into which Wheat Road runs, and there were no other Ford EL taxi wagons in Wheat Road at the relevant time. 92 They conceded that it was possible that T7154 had come into Shelley Street by a different route, i.e. by proceeding along Harbour Street and entering Wheat Road just before Shelley Street via the Erskine Street off ramp. They submitted that this was improbable. Taxi T7154 was vacant and looking for work. He had only had two short fares since commencing work at 4.08am. The taxi rank in Wheat Road and Wheat Road itself were places where at that time in the morning there were likely to be many people looking for taxis. The CCTV images confirmed that there were numbers of people in that area apparently looking for taxis. They submitted that in such circumstances in was improbable that Mr Rana would deliberately bypass the taxi rank and most of Wheat Road. 93 They suggested the following scenario. Taxi T7154 drove from Regent Street until it became Lee Street and ultimately joined George Street and Railway Square. The taxi proceeded along George Street to Hay Street at Haymarket and turned left into Hay Street and travelled through the Entertainment Centre area. At the intersection of Hay Street and Goulburn Street Mr Rana had a choice to turn left into Pier Street towards the Convention Centre, or continue north along Hay Street. Mr Rana was of course pretending to be in the Convention Centre taxi rank at that time. 94 They submitted that, being aware of his "fictitious position in the queue" for work at the Convention Centre rank, Mr Rana then continued along Hay Street, which became Harbour Street and which provided access to Wheat Road. Mr Rana was aware that there was a taxi rank adjacent to Wheat Road which provided service to patrons of various nightclubs and bars at Cockle Bay which were open, or about to close at that time in the morning. 95 They submitted that on the balance of probabilities, Mr Rana did in fact turn from Harbour Street into Wheat Road. If the Court were satisfied of that fact, then nothing more was required - T7154 was the taxi involved in the incident. 96 Both the plaintiff and the first defendant challenged the veracity of Mr Rana's evidence. They submitted that he was not telling the truth when he denied that any incident involving the plaintiff took place. 97 His evidence on that issue comprised his police statement of 13 November 2004 (exhibit A, p 55) and his evidence at trial. In his statement he said: "8. I do not recall working on 25 of January 2004, if the Taxi Combined log states that I was working that day then I don't dispute it. I'm aware of the area of Wheat Road, Darling Harbour. I do not recall any incident happening in the early hours of the morning involving a young male. If I have serious trouble I would remember that. I've had a lot of people run off and not pay. I would not be able to recall all of those times. I do not recall having a male hanging onto the side of my taxi. 9. If this had occurred I would not have continued to drive the cab. If I had a problem like that I would call the base to contact police. It is referred to as M13 that is when you contact base for police assistance. I have driven to a police station on two occasions when I have had problems with passengers." 98 At trial he said: "Q. Is it the fact now that you don't have a recollection one way or the other as to whether you were in fact driving T7154 on the morning of 25 January 2004? A. I don't remember. Q. But again, you accept that if the records indicate you were, you were? A. If I was logged in, I was driving, yes. Q. Do you have any particular recollection of any unusual incident that occurred during the morning of 25 January 2004. If you assume, as the records indicate, that you were in fact driving a taxi on that day? A. I don't. Q. And do you have any recollection of any particular route or itinerary that you followed, assuming that you were at the wheel of T7154 on that morning, on that day? A. I don't remember. Q. In particular do you have any recollection of any pedestrian endeavouring to attach himself to the taxi that you were seemingly driving on that day? A. No. Q. Has it ever occurred in the whole of your experience? A. Never. Q. As a taxi driver? A. Never. Q. Do you have any recollection of any person I've asked you having attempting to attach himself or herself to the taxi which you were driving. Do you have any recollection of any person actually attaching him or herself to the outside of the taxi that you were driving? A. Never happened." (T.280.17) … "Q. I suggest to you that you stopped second at the rank on the turn up from Wheat Street at Cockle Bay? A. Okay. Q. And that a young man in a white shirt attempted to enter your taxi cab? A. No. Q. And I suggest to you that you declined to admit the young man to your taxi cab you wouldn't - A. I'm sorry. Q. You wouldn't let him in I suggest to you? A. No. Q. And that you decided to leave your position on the rank with your vacant sign still illuminated? A. I don't remember. Q. And I must suggest to you that you did so in the knowledge that the young man in a white shirt was either holding onto or leaning against your taxi? A. Didn't happen. Q. And I want to suggest to you that you quickly became aware that he was in fact attached to your taxi, still holding on? A. No. Q. And that you drove at an ever increasing speed for another 320 metres with the young man attached to your taxi? A. Never happened to me. Q. And that you drove the taxi over three speed humps but in particular the third of them at a significant speed. A. Never happened. Q. And that at the third speed hump you dislodged the young man who had held onto the taxi for 320 metres along Wheat Street? A. Never happened to me. Q. And that you were aware the whole of that distance and time that the young man was holding onto the roof rack with one hand and had his left hand through the front window holding something in the car? A. Never happened to me. Q. And that you then, I suggest, proceeded into Shelley Street, logged into Pyrmont and left but at the same time rejecting jobs as you went? A. No. Q. Do you agree or disagree? A. I don't know what to agree with. If that says I was in Shelley Street, I agree I was in Shelley Street. Q. Did you leave Shelley Street in the manner you did because you knew that there had been a very serious accident involving your taxi? A. No. Q. Did you reject the jobs that you were offered in Pyrmont but instead make your way well away from the area because you knew your taxi had been involved in a very serious accident? A. I don't remember why I did that, why I kept going. Q. And I must suggest to you that when the young man fell from your taxi as you went over a speed hump, knowing that there had been a serious accident you did not stop but kept driving? A. I don't know, it never happened to me." (T.296.7) … "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 joined Shelley Street? A. No. Q. Yesterday Mr Rewell put some propositions to you that you disagreed with, namely that you were at the rank near the IMAX Theatre when a young man in a white shirt attached himself to the side of your taxi? A. Mm - hm. Q. You say that didn't happen? A. Yes didn't happen." (T310.19) 99 I am not able to make any decision as to the honesty or otherwise of Mr Rana based on his demeanour. He gave his answers in an unemotional and apparently truthful manner. 100 What did emerge from his evidence was an eagerness to explain the reasons why he would not have driven into Wheat Road on the morning of the accident. 101 The following provides an illustration: "Q. Yes. 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. … "Q. If you 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. (T.289.44) 102 To some extent the reluctance on the part of Mr Rana to place himself in Wheat Road is understandable. He knew that this was where a serious accident had occurred. 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. 103 The busy nature of Wheat Road at that location was confirmed by the CCTV cameras over a 16 minute period which showed 47 taxis going into the taxi rank, another 11 taxis going directly down Wheat Road and at least 11 taxis (but probably more) proceeding down Harbour Street, keeping in mind that at this time Harbour Street was not continuously covered by these CCTV cameras. There is also the evidence of Mr Finch that he commenced walking down Wheat Road in order to catch a taxi because the queue at the taxi rank was too long. 104 If, as Mr Rana asserted, there were often persons seeking taxis in Shelley Street, there was nothing to stop him driving down Wheat Road (which was only a little over 400 metres in length) into Shelley Street, which would give him the advantage of picking up fares in Wheat Road and if he were unsuccessful there, in Shelley Street. It was clear from the CCTV footage that persons wanting to take a taxi in Wheat Road were not located only at the taxi rank but at other locations along Wheat Road. 105 Mr Rana was well aware of this: "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. Q. What, at the back of the aquarium and places like that? A. No, no, like starting from there, yeah, you can get work from anywhere. Sometimes people waiting up near the aquarium, yes." (T.301.29) 106 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. 107 This proposition was expressly put to Mr Rana at T.304.35: "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. …

Q. In any event people are often waiting, in 2004 people were often waiting for taxis in that area? A. Yes, if it's busy, yes.

Q. Then once you get past the aquarium and up nearer Shelley Street? A. Mm-hm.

Q. There may be other work up there? A. Yes.

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. …

Q. If you pull into the rank behind the IMAX theatre? A. If you--

Q. Excuse me. If you pull into the rank behind the IMAX theatre and there are cabs there and not enough customers to make it worth waiting? A. Yes.

Q. You stay there, on to Wheat Road and back on to Shelley Street? A. Yes.

Q. That is easy to do? A. The only way.

Q. And takes you past not only that rank but other work that may be available behind the aquarium? A. Yes. Q. Whereas going straight up Harbour Street and the little road to Erskine Street? A. Mm-hm.

Q. Would not make any sense because you wouldn't know what is in Shelley Street, would you? A. There is always work there.

Q. You would not know how many taxis are there, would you? A. That you don't know any time when you leave home. There is six and a half thousand cabs in the city. You don't want to go to work thinking you're not going to get work. "

108 Mr Bailey argued that the configuration of Harbour Street and the taxi rank in January 2004 was such that a taxi driver in Harbour Street would be able to observe the taxi rank and assess how busy it was. He based his argument on two photographs taken after the accident and by reference to a 2004 aerial photograph. I have carefully examined those photographs and they only inferentially support Mr Bailey's contention. There is a significant amount of speculation in his conclusion. 109 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. 110 It follows that I do not find the reasons put forward by Mr Rana for why he might not have driven along Wheat Road on the morning of the incident to be particularly persuasive. 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. 111 The plaintiff and the first 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. 112 In addition, the first defendant submitted that for Mr Rana's evidence to be accepted, T7154 must have travelled along Harbour Street until it reached the Erskine Street off ramp. The first defendant submitted that while that was a possibility, it was unlikely for the following reasons:

(i) Mr Rana would have thereby deprived himself of the opportunity to pick up passengers along the length of Wheat Road as discussed above.

(ii) Mr Bailey assessed the average speed of T7154 between Regent Street and Shelley Street at 19 kph if the taxi took the most direct route. That was clearly too slow for a taxi seeking work at that time of night. The Court was invited to infer that the taxi had stopped before reaching Shelley Street. The two most obvious locations were the Convention Centre taxi rank or the Wheat Road taxi rank. The first defendant submitted that the Convention Centre taxi rank was unlikely since he would have logged out of the rank when he left it, thereby generating a further LTA record. There would have been no point in allowing TCS to believe that he was still at the Convention Centre rank when he had left it. No such record was produced. Once the Convention Centre is excluded, the only other place the taxi could be expected to have realistically stopped was Wheat Road taxi rank.

(iii) The Harbour Street route to Shelley Street was one that the majority of taxi drivers did not follow on the morning of the incident. During the 5 ½ minutes when camera 44 was not panning and a continuous picture was maintained of both Wheat Road and Harbour Street, 5 taxis drove past in Harbour Street and 22 taxis drove along Wheat Road into Shelley Street. Since Harbour Street was a major access road to the Harbour Bridge, the first defendant submitted that at least some, if not all of those taxis, would have been heading for the Harbour Bridge.

(iv) 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.

(In relation to that latter point, I agree with the submission of the first defendant. 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.)

(v) If Mr Rana did approach Shelley Street via Harbour Street and the Erskine Street off ramp, he must have passed the position of camera 44 at approximately the same time as the taxi which was involved in the incident. The evidence of Mr Lambert was that for a period of approximately 2 minutes and 26 seconds at about the time when the incident occurred, vehicles on Harbour Street were not visible from the CCTV cameras. For Mr Rana to have driven T7154 to Shelley Street, where the GPS puts it at 4.45am, he must have driven past camera 44 at some time in those 2 minutes and 26 seconds. Whilst that was possible, the degree of coincidence was considerable. This was particularly so when the vehicles involved, i.e. an EF or EL white Ford taxi wagon were comparatively old and rare by comparison with the other 6500 taxis operating in Sydney at the time and both carried TCS livery. 113 The first defendant submitted that the "process of exclusion" which it had engaged in at trial was not designed to positively identify the taxi involved in the incident. Its primary position was that T7154 was precisely where one would expect it to be if it were the taxi involved. It undertook the process of exclusion to demonstrate that there were few other taxis that could have been involved in the incident, so as to make it more probable than not that T7154 was the taxi. 114 The second defendant submitted that due to the demonstrated inaccuracies in the various lists produced by the RTA and in the information supplied by TCS and given the possibility that a "phantom taxi" or a taxi not complying with regulations could have been involved, the "exclusion process" purportedly carried out by the first defendant was of little value. Because of the inherent inaccuracies in the process, it could not be established that the taxi involved was one of the 287 white taxi wagons examined in detail by the first defendant. 115 The second defendant submitted that the process of exclusion engaged in by the first defendant was of little practical use to the Court. It depended upon two propositions which could not be made out:

(i) That it was possible to establish a conclusive list of and a reliable databank referable to all white Ford EL or EF station wagon taxis bearing TCS livery which were or could have been in service on the morning in question.

(ii) That it was possible by reference to material within that databank (including GPS records and LTA reports) to eliminate all but one taxi from all of those which might possibly have been involved in the accident. 116 The second defendant submitted that the initial list could not be conclusive because much of the information introduced into the process of its compilation was not controlled, not verified, not verifiable or capable of being tested as to its reliability. Specifically, the list made the following assumptions:

(i) The taxi involved was in the final list which was used in the elimination process.

(ii) The records of TCS as to taxis affiliated with it were comprehensive and correct and included the taxi involved in the incident.

(iii) The records of TCS of all taxis working and otherwise legally affiliated with it on the night of the accident were comprehensive and correct.

(iv) Any taxi generating no GPS record was not on the road or accepting fares.

(v) All station wagons operating as taxis at the time of the accident were capable of and actually generated GPS position records.

(vi) Any taxi generating a GPS position record necessarily generated an accurate position.

(vii) Any taxi logged off, which was not registered with TCS base, was not operating.

(viii) The station wagon involved in the accident was a taxi legally affiliated with TCS and logged on at the time of the accident. 117 He submitted that there was no direct evidence to identify the taxi wagon involved in the incident. There was no evidence that the taxi involved was operating legally or that it was logged onto the TCS base or that it was generating a GPS signal. Even if it were generating a GPS signal, there was no evidence that its GPS system was operating correctly and that such signal would have correctly identified the location of the vehicle at any given time. Finally, the second defendant relied upon the unequivocal denial of involvement by Mr Rana and submitted that his evidence on that issue had not been shaken at any time in cross-examination. 118 On that latter issue, the second defendant submitted that for the Court to reject the evidence of Mr Rana it would have to be satisfied on the balance of probabilities to the standard specified in Briginshaw v Briginshaw (1938) 60 CLR 336 and as explained in subsequent cases. The second defendant relied specifically upon Bradshaw v McEwans Pty Limited (1951) 217 ALR 1 at 5. In accordance with the dicta in that case, the second defendant submitted that the circumstantial evidence before the Court went no further than the raising of conflicting inferences with equal degrees of probability. 119 The second defendant 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. 120 The second defendant submitted that because the driver of the taxi involved in the incident did not seek assistance from the TCS network or from other taxi drivers at the time when the plaintiff became attached to the taxi, an inference should be drawn that he was operating the taxi illegally. This would arise either because the taxi was a "phantom taxi" or because he was one of those drivers who, for a number of reasons, had not logged on for a shift and was not using the onboard computer. 121 Finally, the second defendant relied upon the differences between the taxi shown in the CCTV film and T7154. Those differences were the apparently defective nearside rear brake light and the absence of the small amber light above the illuminated taxi sign on the vehicle shown in the CCTV footage. 122 I accept the submission of the second defendant that for the Court to be satisfied that T7154 was the taxi involved in the incident, the Briginshaw standard needs to be satisfied. This is because of the serious implications concerning the conduct of Mr Rana if such a finding were made. 123 A comprehensive statement as to what the satisfaction of that test involves is in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361. In that case Ipp JA, with whom Tobias and Basten JJA agreed, said: "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: (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674, at 687). 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. (See also Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125).

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:

(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

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 Belhaven & Stenton Peerage (1875) 1 App Cas 278 at 279 - quoted with approval by Gibbs CJ and Mason J in Chamberlain v R (No 2 ) at 535).

(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" (per Winneke P in Transport Industries Insurance Co Ltd v Longmuir at 129).

(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 In Briginshaw Dixon J at 365 to 367 expressly recognised that adultery (the "serious allegation" in that case) might be proved by "circumstantial evidentiary facts" (see at 366). His Honour approved Lord Buckmaster's reference in Ross v Ross (1930) AC 1 at 7 to proof of adultery as being "a matter of inference and circumstance", and accepted that the test for corroboration of confessional material depends on the "surrounding circumstances" (at 366). Later, in Plomp , Dixon J observed at 242 (in a passage quoted in Chamberlain v R (No 2 ) by Gibbs CJ and Mason J at 536): "I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done."

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." 124 Applying that test I am satisfied that taxi T7154, being driven by Mr Rana, was the taxi involved in the incident involving the plaintiff on the morning of 25 January 2004. 125 The presence of T7154 in Shelley Street at 4.45am places it precisely where the taxi involved in the incident would have been at that time. 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. As was submitted, if he did enter Wheat Road then it is clear that his was the taxi involved in the incident. 126 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. 127 The exclusion process carried out by the first defendant provides some support for that conclusion, despite the obvious imperfections of the process, which have been identified by the second defendant. Even allowing for the imprecision and deficiencies in the process, the number of vehicles to have been missed and therefore not included in the 287 which were closely considered, is likely to be small. In that regard I accept the submission that the third list of Mr Yussef is the most comprehensive and is likely to be generally accurate. In saying that I accept the possibility that one or two vehicles may still have been missed despite the special computer program which he devised. 128 What the exclusion process does establish is that there were comparatively few vehicles of the necessary type whose location at the time of the accident was unaccounted for. While the prospect of one of that small number being on Wheat Road at about 4.45am remains a possibility, the likelihood must be low. 129 Similarly, I accept the possibility that the taxi involved in the incident may have been a "phantom taxi" or a taxi operating contrary to the regulations. That possibility, however, has to be weighed against established facts namely the presence of T7154 a short distance from the incident site exactly where and when one would expect it to be, had it been involved in the incident. Added to that, of course, are the significant identifying features possessed by T7154 and by the taxi wagon depicted in the CCTV films. 130 The submission that if T7154 was the relevant taxi, Mr Rana was unlikely to have notified his presence in Shelley Street does not significantly weaken that conclusion. 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. 131 In accordance with the observations in Neat Holdings, I am conscious of the implications of my finding. Nevertheless I am firmly of the opinion that the plaintiff and the first defendant have established on the balance of probabilities that T7154 was the taxi to which the plaintiff became attached on the morning of 25 January 2004.

Contributory negligence 132 The only evidence as to what happened before the taxi commenced moving with the plaintiff attached is that of Mr Baillie. There was no basis for a finding that the plaintiff did anything to cause the taxi driver to act in the way in which he did. One can speculate as to what might have happened and as to the motivations of either the plaintiff or the driver, but there is no evidentiary basis upon which any conclusion can be reached. 133 That the passenger window was open and that Mr Finch observed that the plaintiff's left hand was apparently gripping something inside that window, may suggest that when the plaintiff found he was unable to open the door to the taxi, he reached inside to try to unlock and that this in some fashion caused the driver to drive off. Unfortunately, the reality of what happened will never be known. 134 I have found that the plaintiff was, to some extent, affected by alcohol at the time when he sought to gain entry to the taxi. I have found that his affectation was moderate. There is no basis for a finding that this of itself constituted contributory negligence. Similarly, there is nothing in the evidence which suggests that the plaintiff's initial attempts to gain access to the taxi involved some failure to take reasonable care on his part. 135 The only basis for a finding of contributory negligence against the plaintiff is that he attached himself to the taxi and remained attached to it until he was dislodged. In relation to that latter aspect, the evidence of Messrs Keramidas and Bailey was clear that after 3 - 4 seconds the speed of the taxi was such that had the plaintiff let go of it, there was a strong likelihood of him suffering serious injury. 136 Accordingly the question of whether contributory negligence should be found against the plaintiff relates to his initial attachment to the taxi and remaining attached to it for the first 3 - 4 seconds. 137 As Joslyn v Berryman [2003] HCA 34, (2003) 214 CLR 552 made clear, the test for contributory negligence is an objective one: "At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed" ( Joslyn , McHugh J [16]).

By way of further explanation his Honour said: "But in principle, any fact or circumstance which a reasonable person would know or ought to know and which tends to suggest a foreseeable risk of injury… is relevant in determining whether the passenger was guilty of contributory negligence in accepting the lift." 138 That, of course, was a case involving a plaintiff travelling with an intoxicated driver. Nevertheless, the principle stated by McHugh J remains valid in the circumstances of this case. 139 We will never know what motivated the plaintiff to grab hold of the taxi as it commenced to move. Perhaps, as Mr Baillie seemed to suggest, the plaintiff thought that the taxi was merely moving to the head of the taxi rank. Whatever be the motivation, looking at the question objectively, one would have to say that such an action 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. 140 There is nothing in that analysis which is contrary to s 138 Motor Accident Compensation Act 1999. 141 The next question is to assess the extent to which the plaintiff's action contributed to his injury. The classic statement of principle remains that in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 at 494: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Limited (1953) AC 663 at 682; Smith v McIntyre (1958) Tas SR 36 at 42-49 and Broadhurst v Millman (1976) VR 208 at 219 and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." 142 Applying that statement of principle to the facts of this case, it is clear that the contribution to the accident by the taxi driver far outweighed that of the plaintiff. Mr Keramidas assessed that the plaintiff was attached to the taxi for between 35 and 40 seconds and that during that time the taxi covered approximately 320 metres, accelerating all the time. As each second passed it must have been increasingly obvious to the taxi driver that the plaintiff would be seriously injured and yet he did nothing to slow down. For most of that time the plaintiff, of course, had no choice but to hang on as best as he could. 143 I would assess the plaintiff's level of contributory negligence at 10 percent.

Costs 144 For the reasons set out above, the plaintiff has succeeded in obtaining a verdict against the second defendant. That means that there should be a verdict entered in favour of the first defendant. It follows from such a verdict that the plaintiff will have to pay the legal costs of the successful first defendant unless he can bring himself within the principles in Bullock v London General Omnibus Co [1907] 1 KB 264. 145 The effect of that case is that a plaintiff who brings proceedings against two defendants and succeeds against one but fails against the other, may obtain an order that the unsuccessful defendant pay the costs that the plaintiff has been ordered to pay to the successful defendant. 146 A useful statement of how that principle has been applied is in Almeida v Universal Dye Works Pty Limited (No 2) [2001] NSWCA 156 where the Court of Appeal quoted with approval a statement of Giles J in Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 55,605: "One statement of principle is that the order may be made where the costs have been reasonably and properly incurred by the plaintiff as between it and the unsuccessful defendant …; it has also been said that the conduct of the unsuccessful defendant must have been such as to make it fair to impose some liability on it for the costs of the successful defendant, or that the conduct of the unsuccessful defendant must show the joinder of the successful defendant was reasonable and proper to insure recovery of the damages sought … The difference in formulations is probably more apparent than real, as reasonableness as between the plaintiff and the unsuccessful defendant will normally be demonstrated by some conduct of the unsuccessful defendant which made it proper that the successful defendant be joined or that the unsuccessful defendant should bear the costs of the successful defendant. Such conduct as was found in Lackersteen v Jones (No 2) (1988) 93 FLR 442 in the unsuccessful defendant denying the authority of its agent whereby the plaintiff joined the agent who became the successful defendant, and more widely has been found in the unsuccessful defendant telling the plaintiff in one way or another that it should look to the successful defendant for its remedy …" 147 In Almeida, Priestly JA accepted a wide view of relevant conduct of the unsuccessful defendant stating that: "Any conduct by the defendant or state of affairs in which the defendant is an integral part which makes it fair and reasonable for other parties to be joined as defendants will be relevant to deciding on fair costs orders." [8] 148 In the circumstances of this case, I am of the opinion that the plaintiff should have the benefit of a Bullock order in respect of the first defendant's costs. This is because the conduct of the case by the second defendant left the plaintiff with no choice but to continue the proceedings against the first defendant. If there were any doubt as to the position adopted by the second defendant, this is resolved by the unsuccessful application made by him on the first day of the trial, i.e. that the proceedings against him be dismissed. 149 In the particular circumstances of this case, the plaintiff was always going to succeed against one of the defendants but it was necessary for him to join and proceed against both of them. The matter was vigorously defended by both defendants. In those circumstances it seems to me that the principle in Bullock has been engaged and that the plaintiff should have the benefit of a Bullock order in respect of the costs of the first defendant.

Conclusion 150 The orders which I make are as follows:

(1) There will be a verdict in favour of the plaintiff against the second defendant, with damages to be assessed.

(2) There will be a verdict in favour of the first defendant.

(3) The plaintiff is to pay the costs of the first defendant.

(4) The second defendant is to pay the plaintiff's costs of these proceedings, such costs to include the costs of the first defendant, which the plaintiff has been ordered to pay pursuant to Order (3) hereof.

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