Asim v Penrose & Anor [2010] NSWCA 366

New South Wales Court of Appeal

CITATION: Asim v Penrose & Anor [2010] NSWCA 366

HEARING DATE(S): 27 October 2010 28 October 2010

JUDGMENT DATE: 21 December 2010

JUDGMENT OF: Tobias JA at 1; Macfarlan JA at 214; Young JA at 215

(a) Appeal allowed. (b) The First Respondent's cross-appeal allowed in part. (c) Set aside Orders 1 to 4 made by Hoeben J on 12 November 2009. (d) There be a verdict in favour of the Cross Appellant against the Second Cross Respondent with damages to be assessed. DECISION: (e) There be a verdict in favour of the Appellant against the First Respondent. (f) The First Respondent to pay the costs of the Appellant at first instance. (g) The Second Respondent to pay costs of the First Respondent at first instance, such costs to include the costs of the Appellant which the First Respondent has been ordered to pay pursuant to Order (f) hereof. (h) The Second Respondent to pay the costs of the Appellant of the appeal. (i) The Cross-Appellant to pay the costs of the First and Second Cross-Respondent with respect to the cross appeal. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: APPEAL – civil – evidence – whether conclusion supported by evidence - APPEAL – civil – fact finding – competing evidence – lay opinion – how plaintiff became attached to culpable taxi – situation at taxi rank immediately before incident - EVIDENCE – proof – circumstantial evidence – competing inferences – whether driver most likely to have proceeded to taxi rank rather than by-passed it – each inference of equal probability - EVIDENCE – proof – onus – onus on Nominal Defendant to establish taxi was culpable taxi - EVIDENCE – proof – standard of proof – civil – application of Briginshaw standard - TORTS – negligence – contributory negligence – motor accident - TORTS – negligence – liability – motor accident – whether taxi was culpable taxi