Judgment date: 12 November 2009
Penrose v nominal defendant & Anor (2009) NSW SC 1187
Supreme Court of NSW1
- Circumstantial evidence can be sufficient to establish the involvement of an unidentified vehicle in a motor accident. To make that finding when the identity of the alleged vehicle is in dispute, the Court must be reasonably satisfied the circumstantial evidence raises a more probable inference that the alleged vehicle was involved in the accident.
On 25 January 2004 at approximately 4:40am, the plaintiff approached a taxi which was stationary in a taxi-rank in Wheat Road in Cockle Bay. The plaintiff unsuccessfully attempted to open the front passenger-side door of the taxi. Whilst the plaintiff made further attempts to open the door, the taxi began to pull away. The plaintiff then held on to the taxi as it continued to pull away. The taxi re-entered Wheat Road and steadily accelerated. The taxi travelled approximately 345 metres, or for 35 to 40 seconds, with the plaintiff attached to it when it drove over a third speed hump at 45km/h. This caused the plaintiff to become dislodged from the taxi and travel approximately 20 metres along the roadway before coming to rest. The taxi continued along Wheat Road, which ends a short distance later and becomes Shelley Street.
The plaintiff undertook due enquiry and search to establish the identity of the taxi but was unsuccessful. Proceedings were brought against the nominal defendant, who subsequently produced evidence that Taxi T7154 was the vehicle involved. The plaintiff then filed an Amended Statement of Claim, adding the second defendant to the proceedings.
The issues which were to be decided by Justice Hoeben were 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. This involved a critical analysis of circumstantial evidence and competing inferences the parties submitted should be drawn.
Circumstantial Evidence – Identity of Taxi
The circumstantial evidence consisted of footage captured by seven CCTV cameras, the GPS in Taxi T7154, a Logged Taxi Activity (LTA) database, records of the second defendant and three lists produced by the RTA.
This evidence was problematic for a number of reasons. Most notably, it was impossible to identify the number plate of the taxi involved. The LTA database, by reference to the GPS, only recorded snapshots, not a continuous record, of a taxi's movement. Lastly, there were 287 vehicles in the final list of taxis produced by the RTA which matched the description of the taxi which was captured by the CCTV footage. Not all of them, with the exception of Taxi T7154, could be excluded.
Based on this evidence it was agreed, or found, that the taxi in question was a white Ford Falcon station wagon, either an EL or EF model, carried the Taxi Combined Services (TCS) livery and markings and had a NSW "T" or "TC" prefixed taxi number plate.
Records of the Second Defendant
This evidence revealed that Taxi T7154 was driven by Mr Rana on 25 January 2004. Mr Rana gave evidence that he could not recall whether he drove, or the movements of, that vehicle on the date in question. Mr Rana accepted the accuracy of the records insofar as they revealed that he was the driver of Taxi T7154 on 25 January 2004 but expressly denied being involved in an incident similar to that which had seriously injured the plaintiff.
GPS & LTA on 25 January 2004
At 4.08am, Taxi T7154 signed on at Kogarah, where Mr Rana resided. Over the next thirty minutes Mr Rana had two short, paying fares and made four entries in the LTA. The last entry prior to the commencement of the incident was at 4.37am. At that time, Mr Rana generated an action described as "logged in rank (Darling Harbour – Convention Centre rank)" when in fact he was in Chippendale. The first entry following the conclusion of the incident was at 4.45am. At that time, Mr Rana generated two entries, the first being "log out manual (Darling Harbour – Convention Centre Rank)", followed by "log in vacant (Pyrmont)". Both entries showed the taxi was in Shelley Street, only 50 metres from the end of Wheat Road (where it becomes Shelley Street) and approximately 150 to 200 metres from where the plaintiff became detached from the taxi. Importantly, three subsequent entries were made. At 4.48am, the entry was "job offer reject (Pyrmont)" from King Street. At 4.54am, the entry was "cover offer rejected", showing the taxi was near the intersection of George and Park Streets. At 5.00am, another cover offer was rejected, showing the taxi to be in Harris Street in Ultimo.
RTA Lists & the "Process of Exclusion"
The first defendant attempted to exclude other white EL or EF Ford Falcon taxi wagons in TCS livery from being in Wheat Road at the time of the incident. Whilst it accepted it could not entirely exclude all other vehicles of that kind, it submitted that it was able to eliminate all but a relatively small number of that kind of vehicle, and this would arguably produce two conclusions. Firstly, it significantly reduced the likelihood that one of the vehicles not excluded was the one involved in the incident. Secondly, it demonstrated that Taxi T7154 was precisely where one would expect it to be if it were the taxi involved. In undertaking this task, the first defendant relied on lists of taxis and information provided by the RTA and TCS. Attendances at the TCS premises were made by the first defendant to identify which of the 287 white taxi wagons in the final RTA list were part of the TCS fleet at the time of the accident and, where that was confirmed, to identify where that taxi wagon was at the time of the incident.
Circumstantial Evidence – Standard of Proof
Justice Hoeben accepted 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 Briginshaw2. The test is whether the circumstantial evidence before the Court raises conflicting inferences with differing or equal degrees of probability so that the choice between them is not merely a matter of conjecture or surmise. The consequence of rejecting Mr Rana's evidence would obviously lead to a finding of serious misconduct on his part.
Justice Hoeben acknowledged the inadequacies of the "process of exclusion" but was prepared to be guided by the final list of 287 taxis as the number of vehicles likely to have been missed, and not included, was likely to be small. His Honour removed all but 16 taxis by reference to their make and model, whether the taxi was a country taxi unlikely to be operating in the Darling Harbour area when the incident occurred, situations in which the LTA showed a driver signed off and then on at the same location, situations in which the LTA showed a taxi became engaged at one location and then vacant at another during the time the incident occurred and the two locations were away from the Darling Harbour area, and the requirement for some taxis to display two number plates, noting the CCTV footage showed the unidentified taxi had one.
Justice Hoeben was satisfied that Taxi T7154 was involved in the incident for these reasons:
- Mr Rana's evidence – he was eager to explain why he would not have driven into Wheat Road on the morning of the accident. He was aware this is where a serious accident involving a taxi wagon similar to the one he was driving had occurred. His evidence was intended to exculpate him for any responsibility for the accident.
- The likely route Mr Rana took to arrive at Shelley Street – he was aware, and the CCTV footage showed, persons wanting to take a taxi were located at the taxi rank and other locations along Wheat Road. He was also aware there were often persons seeking taxis in Shelley Street. There was nothing to stop Mr Rana driving down Wheat Road (approximately 400m) into Shelley Street. This would produce the advantage of Mr Rana collecting fares in Wheat Road, and if he was unsuccessful there, in Shelley Street. Why Mr Rana, having been on the road for over 30 minutes, and having had fares for no more than 6 or 7 minutes, would have preferred to drive down Harbour Street (parallel to Wheat Road) instead of Wheat Road was difficult to understand.
- The presence of Taxi T7154 in Shelley Street at 4.45am – this placed it precisely where the taxi involved in the incident would have been at that time. The attempts by Mr Rana to place himself in Harbour Street, noting a number of persons were seeking a taxi in Wheat Road, and his lack of fares until that time, were not persuasive.
- The conduct of Mr Rana between 4.45am and 5.00am – Mr Rana refused three offers of fares. His taxi had been on the road for over 50 minutes and had only had two short fares. In view of the number of persons wanting taxis in Wheat Road, it was surprising that Mr Rana would abandon a fertile area for obtaining fares and travel to Pyrmont. An inference was drawn that something unusual or untoward had occurred which caused Mr Rana to avoid entering Wheat Road and which also upset him sufficiently that he was not prepared to accept a fare until after 5.00am.
- The exclusion process – it established there were comparatively few vehicles of the necessary type whose location at the time of the accident was unaccounted for. The prospect that one of that small number was on Wheat Road at about 4.45am is low.
- The established facts – the possibility a phantom taxi or a taxi operating contrary to the regulations being involved was weighed against the presence of Taxi 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, as well as the significant identifying features possessed by Taxi T7154 and the taxi depicted in the CCTV footage. The submission that if Taxi T7154 was the relevant taxi, Mr Rana was unlikely to have notified his presence in Shelley Street, did not significantly weigh in that conclusion.
Justice Hoeben found 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. His Honour held the plaintiff was moderately affected by alcohol which, by itself, did not constitute contributory negligence. That being the case, the only basis for a finding of contributory negligence was that he attached himself to the taxi and remained attached to it until he was dislodged. In relation to the latter aspect, the evidence made it clear that, after 3 to 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 injuries. Accordingly, the question of whether contributory negligence should be found against the plaintiff related to his initial attachment to the taxi and then remaining attached to it for the first 3 to 4 seconds.
His Honour found the plaintiff grabbing hold of the taxi involved a readily foreseeable risk of injury and, therefore, a failure to take reasonable care for his own safety. The plaintiff's level of contributory negligence was assessed at 10%, noting he was attached to the taxi for between 35 and 40 seconds and, during that time, the taxi covered approximately 320 metres and was continuously accelerating. As each second passed, it must have been increasingly obvious to the taxi driver that the plaintiff would be seriously injured, yet he did nothing to slow down. Most of that time, the plaintiff had no choice but to hang on to the taxi as best as he could.
A plaintiff and/or nominal defendant, when relying on circumstantial evidence to submit an unidentified vehicle was involved in an accident, can employ a methodology which is imperfect or inherently inaccurate and still be successful. Even if there are conflicting inferences which can be drawn from the evidence, as long as the allegation of fact can be established on the balance of probabilities, the unidentified vehicle will be found to have been involved.1. Hoeben J 2. (1938) 60 CLR 336
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