It was also apparent from his evidence that there were "big" barricades "in the front" and "some other different barricades on the side where there was tiling".
76 It appeared from the cross-examination of the appellant that the barricades which appeared in the photographs the appellant was shown in his evidence-in-chief (which were reproduced in the Combined Appeal Book in black and white) were black and yellow. The appellant could not recall whether there were also red and white barricades in or around the Centre, but it appears from Ms Kain's note of her conversation with Mr Hasan in May 2006 that that was the colour of the barricade he recalled. If that was the case it might give some force to Donny's recollection that the "barricades used were builders/road barricades", being the large, apparently PVC, barricades used to separate pedestrians and traffic from road works.
77 This account of the competing evidence as to the possible configuration of any barricade which might have been used underlines, in my view, the uncertain state of the evidence concerning what, if any, object may have struck the appellant. That uncertainty meant that Dr Adams' opinion that a barricade of the sort he tested was capable of being moved by high winds was of no evidentiary weight.
78 The appellant could not establish the second proposition (the barricade was likely to be capable of being moved by the high winds) absent evidence of the probable configuration of the barricade, its position prior to it allegedly hitting the appellant (an issue complicated by the appellant's confusing evidence about where he fell), evidence of how the barricade was secured prior to the fall and evidence of the likely direction and speed of the wind at the time relative to the position of the barricade. As to the last point, I note that even Dr Adams was not prepared to extrapolate from the Bureau of Meteorology records the velocity (let alone, it might be assumed, the direction) of the wind at the probable site and time of the appellant's fall.
79 Although the primary judge did not refer to Dr Adams' report in his ex tempore judgment, it is tolerably plain, in my view, having regard to his Honour's succinct reasons, that he concluded there was no factual substratum on which Dr Adams' opinions could be founded. In particular, it might be noted, that even assuming Dr Adams' opinions were expressed in respect of a barricade which did strike the appellant, as I have said, there was no evidence as to what, if any, steps had been taken to secure any such barricade, or precisely where it was prior to it apparently falling, which would establish that it fell because of the wind. The evidence did not rise above the level of conjecture in this respect. The absence of evidence of that nature made good, in my view, the objections both respondents took to Dr Adams's report.
80 In the absence of evidence which would enable a finding to be made as to the configuration of the physical object which might have caused the appellant to fall and how it came to fall, it was not possible, in my view, for the Court to draw an inference, that either respondent had failed to take reasonable care to avoid a foreseeable risk of injury to the appellant. In particular, the appellant failed to establish that either respondent did, or did not do, something in relation to a barricade on the day in question which would support a finding that they failed to respond to a foreseeable risk.
81 In considering Mr Seton's submission that an inference of negligence can be drawn against Clycut, it is relevant to note that counsel for the appellant at trial did not put any proposition to Clycut's witnesses which went to the discharge of Clycut's duty of care. This was of particular significance when, as I have said, Mr Seton accepted that Ms Carr, who Clycut called, was effectively Clycut's representative at the Centre on the day of the incident.
82 Mr Seton sought to argue that, on the assumption Clycut owed a duty of care to the appellant independently of any delegation of its obligations to Jones Lang, Ms Carr's evidence was, in substance, irrelevant where Jones Lang was not a party. However, in my view, Mr Seton's submission that Clycut had effectively absented itself could not be sustained when no case was established at trial that Jones Lang had not properly discharged its duties as managing agent or raised the issue at least as to whether or not Jones Lang had effectively discharged its duties under its agreement with Clycut. Where Clycut had called Ms Carr as its representative at the Centre at the time it was, in my view, incumbent upon the appellant to demonstrate, in the first instance, that Jones Lang had for some reason not effectively discharged its duties under its agreement in relation to the safety of the premises before a conclusion could be drawn that Clycut had some residual obligations to the appellant which it had breached: cf Wynn Tresidder (at [61]).
83 I also note that counsel for the appellant at trial did not challenge Mr Hee's evidence that he had not had cause to repair a window along the Centre passageway in the first few months he operated the store - a period which clearly included 23 March 2005 when the appellant said he was injured. Mr Hee's evidence cast doubt on the proposition that there was any need for a barricade in the passageway outside his shop on the day in question. On his evidence, supported by Ms Kain's file note of her conversation with Donny, the only problem with a window of the shop around the relevant time was with a window on the Anzac parade frontage. This evidence was not inherently improbable, and in the absence of cross-examination, could have supported an inference that any incident did not occur in the passageway at all: see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. However as the respondents' counsel did not challenge the appellant's evidence as to the location of his fall, it is unnecessary to take it further.
84 The appellant complains that the primary judge erred in drawing an inference adverse to him from the fact Mr Hasan was not called. It is not clear how, if at all, his Honour's statement that he would draw the inference that Mr Hasan's evidence would not have assisted the parties worked adversely to the appellant. However it should be borne in mind that the rule in Jones v Dunkel (at 308, 312 and 320 - 321) that failure, to call a witness, if established, leads to the inference that the witness' evidence would not have assisted that party, only applies where a party is required to explain or contradict something, a question which turns on the issues in the case: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 (at [51]). Unexplained failure by a party to call witnesses can also cause an inference arising from the evidence of the opposing party to be more confidently drawn: Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 (at [72]) per Ipp JA (Giles and McColl JJA agreeing) referring to HML v R [2008] HCA 16; (2008) 235 CLR 334 (at [303]) per Heydon J; Portelli v Tabriska Pty Ltd & Ors [2009] NSWCA 17 (at [53] - [55]) per Allsop P (Hodgson and Macfarlan JJA agreeing); Manly Council v Byrne [2004] NSWCA 123 (at [44] ff) per Campbell J (Beazley JA and Pearlman AJA agreeing).
85 The primary judge did not explain why, having regard to the issues, he thought any of the parties should have called Mr Hasan, let alone specify why an adverse inference should be drawn against any particular party. This was an essential pre-requisite to drawing any adverse Jones v Dunkel inference: Manly Council v Byrne (at [54]). An adverse inference drawn against all parties, which appears to be the effect of his Honour's statement does little, with respect, to assist the forensic process.
86 A Jones v Dunkel inference against the appellant would not have impacted adversely if his case had otherwise been accepted: Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 (at [100]) per Giles JA (Beazley and Campbell JJA agreeing). And an inference against either respondent only arose if either had been required to explain or contradict something, a point it is clear from his Honour's reasons, with which I agree, was never reached.
87 In my view, however, it was open to the primary judge, and to this Court, to draw an adverse Jones v Dunkel inference against the appellant. He bore the legal onus of establishing either or both respondents had not acted in accordance with reasonable care. He had little material to which he could point to explain why a barricade knocked him over. Mr Hasan's absence was more adverse to the appellant's case than the respondents'. The appellant contended Mr Hasan was virtually on the scene when he fell, an assertion belied to some extent by the file note the appellant also tendered stating Mr Hasan was not an eyewitness. If the appellant wished to rely on the Incident Report to support the proposition, contrary to Ms Kain's file note, that Mr Hasan was recording his own observation of what happened, it would be expected he would call him: see Payne v Parker [1976] 1 NSWLR 191 (at 201 - 202) per Glass JA.
88 The appellant gave no explanation for not calling Mr Hasan whose telephone contact details appeared to be on the file note he tendered. In my view the appellant's failure to call Mr Hasan supports the inference arising from the respondents' evidence that the cause of the appellant's fall was unknown.
89 Finally I note that the appellant did not address the "no reasons" ground of appeal in either his written or oral submissions. It is unnecessary to rehearse the principles relating to the judicial obligation to give reasons. They were addressed recently in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [56] ff). There might some room for argument that the primary judge's reasons were spare, although, at least, insofar as breach was concerned, that is explicable by reason of his conclusion that the appellant's evidence was insufficient to establish that either defendant had breached whatever duty of care it may have owed the respondent. The appellant did not contend that if this ground was made good the issue of liability should be remitted for a new trial. This was a sensible approach, having regard to the fact that the appeal was by way of re-hearing and it was necessary for the Court to consider the evidence and reach its own conclusion: see also Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11 (at [310] - [316]) per Basten JA.
90 I note that there were various issues raised in the appellant's amended notice of appeal which relate primarily to the correctness of the primary judge's reasons. As I have approached the matter on the basis of considering the evidence pursuant to the Court's rehearing function, it is unnecessary to deal with those criticisms of his Honour.
91 I would note that the appellant's submissions did not address the particular of negligence which related to failure to warn of the presence of barricades, as to which I would only observe that the notion that there should be a warning about an object which is itself a warning and precautionary measure and which, taking the appellant's evidence at its highest, was clearly visible, would grossly offend the notion of the concept of reasonable care.
92 In my view the appellant's evidence did not enable the Court to conclude, as a matter of probability, that either respondent breached its duty of care to the appellant.