NSW Caselaw
New South Wales Supreme Court
CITATION : Penrose v Nominal Defendant & Anor [2009] NSWSC 1187
HEARING DATE(S) : 11/05/09, 12/05/09, 13/05/09, 14/05/09, 18/05/09, 19/05/09, 20/05/09, 07/07/09, 08/07/09
JUDGMENT DATE : 12 November 2009
JUDGMENT OF : Hoeben J
Verdict in favour of the plaintiff against the second defendant, with damages to be assessed. DECISION : Verdict in favour of the first defendant. Plaintiff is to pay the costs of the first defendant. Second defendant is to pay the plaintiff's costs of these proceedings, such costs to include the costs of the first defendant, which the plaintiff has been ordered to pay pursuant to Order (3) hereof.
CATCHWORDS : TORT - motor accident - serious injuries suffered by plaintiff attached to taxi - identity of taxi disputed - contest between Nominal Defendant and purported owner of taxi - circumstantial evidence - GPS showing position of taxi at various times - evidence excluding other taxis from location of accident at time of accident - EVIDENCE - standard of proof in civil case where serious allegations made - Briginshaw v Briginshaw - approach in civil case in determining whether circumstantial evidence leads to finding of serious misconduct on part of taxi driver - CONTRIBUTORY NEGLIGENCE - plaintiff becoming attached to taxi - plaintiff remaining attached to taxi - objective test - COSTS - Bullock order - unsuccessful defendant to pay whole of plaintiff's costs.
LEGISLATION CITED : Motor Accidents Compensation Act 1999
CATEGORY : Principal judgment
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
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