Asim v Penrose & Anor (2010)NSWCA366

On Tuesday 21 December 2010 the Court of Appeal handed down its decision in the matter of Asim v Penrose & Anor. The Appellant, insured by CTP insurer Zurich Australian Insurance Ltd (“Zurich”) and represented by Vardanega Roberts, Solicitors, succeeded on appeal against the judgment of Justice Hoeben.

The decision of the Court of Appeal means that the Nominal Defendant and not Zurich will respond to the claim by Laurence Penrose (First Respondent/Plaintiff) for what will be significant damages arising as a result of catastrophic injury.

In tragic circumstances, in the early hours of the morning on 25 January 2004 in Wheat Road at Darling Harbour, Sydney, Laurence Penrose became attached to the exterior of an unidentified taxi and ultimately became detached, falling to the roadway and sustaining significant injury including irreversible brain damage and tetraplegia.

Enquiries on behalf of the Plaintiff to identify the owner and driver of the culpable taxi were unsuccessful and the Plaintiff commenced proceedings against the Nominal Defendant pursuant to s.34 of the Motor Accidents Compensation Act 1999 (the MAC Act).

The Plaintiff later filed an Amended Statement of Claim adding the driver of taxi T7154 to the proceedings, being a cab owned by Mohamad Asim, driven by Ravinder Rana and insured by Zurich. The Plaintiff relied on evidence provided by the Nominal Defendant to supposedly identify the culpable taxi. Mr Rana denied any involvement in the accident.

In the court below, the Nominal Defendant succeeded in arguing that on the balance of probabilities the culpable taxi could be identified as taxi T7514 (and therefore Zurich as its CTP insurer would respond to the Plaintiff’s claim).

On appeal, Zurich challenged a number of the factual findings made at first instance and the exclusionary process applied by the Nominal Defendant in identifying taxi T7154.

Zurich was successful in arguing that the Nominal Defendant had failed to prove on the balance of probabilities that the culpable taxi was in fact taxi T7154.

A full analysis of this important case will be provided in our case and legislation database shortly.