Ground 1: Did the trial judge err in his analysis of the probability relating to the identity of the person who caused the appellant's fall?
51That leaves for consideration the issue raised in ground 1. The appellant was required to satisfy the tribunal of fact, on the balance of probabilities, that the other person on the stairs was a member of Redeland's catering staff: Evidence Act 1995, s 140(1). It was not suggested that there was anything about the claim that required the Court to have regard to the factors specified in s 140(2), or to use the language of the common law, this was not a case to which the Briginshaw standard applied: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.
52The appellant submitted however that the trial judge's approach, in examining alternative possibilities to exclude the probability which was most likely, was erroneous. In support of this submission the appellant referred the Court to Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182 where the plurality stated at [34]:
"Woolworths' submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths' negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited. The point was illustrated by Hayne JA (as he then was) in Kocis v SE Dickens Pty Ltd. His Honour posited a case in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff's fall. As Hayne JA observed, a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities." (citations omitted) (emphasis added)
53In Jones v Dunkel [1959] HCA 8; 101 CLR 298 Dixon CJ, at 304, observed:
"In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind."
54A finding on the balance of probabilities involves a finding of a probability greater than 50 per cent. Whether or not a court is so satisfied will depend upon the whole of the evidence. Relevantly, a plaintiff bears the onus of satisfying a tribunal of fact, on the balance of probabilities, that a defendant was negligent. The evidence may give rise to more than one possibility, but in that circumstance, the principle is the same. For the plaintiff to succeed, the tribunal of fact must be satisfied on the balance of probabilities of facts that will establish liability in the defendant.
55This was explained in Bradshaw v McEwans (1951) 217 ALR 1 at 5, in a passage quoted, inter alia, by Dixon CJ in Jones v Dunkel as follows:
"Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise ..." (citations omitted)
56However, in Jones v Dunkel, at 305, Dixon CJ observed:
"But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."
57In a related submission, the appellant submitted he had adduced significant evidence of the negligence of the respondent and that the factual onus shifted to the respondent to prove that the other person was not their employee or agent. The appellant referred to Strong v Woolworths at [47]-[60]. The appellant submitted that this onus required Redeland to lead reliable evidence that the other person on the stairs could have been someone other than a member of the catering staff. The appellant submitted the respondent "failed to discharge this burden", so that his own evidence remained more persuasive.
58This submission either failed to adequately grasp the principles that govern the requirements of proof in a particular case: see Strong v Woolworths at [47]-[60] per Heydon J, or alternatively, reflected a belief in the strength of the appellant's evidence, unmitigated by a consideration of the strength of Redeland's evidence. There may well have been aspects of both of these matters involved in the submission. This was not a case where material evidence was peculiarly within the defendant's knowledge: Strong v Woolworths at [65]. In a case of that type, a plaintiff may succeed by adducing slight evidence. The defendant then faces a tactical decision as to whether to adduce evidence to explain the plaintiff's evidence: De Gioia v Darling Island Stevedoring & Lighterage Company Ltd (1941) 42 SR (NSW) 1 at 4; Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at 970; Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367. Rather, this was a case where both the appellant and Redeland adduced evidence of the likelihood of a person on the stairs being a member of the catering staff.
59As I have said, the appellant was required to adduce evidence sufficient to satisfy the trial judge that the other person on the stairs was a member of the catering staff. Had the appellant's evidence in chief been the only evidence, it would have been open to his Honour to have been satisfied he had established the identity of the person as a member of the catering staff. However, there was an attack upon the appellant's evidence in cross-examination, particularly as to his recollection of what the person on the stairs was wearing. His clear recollection was of a white shirt. He later said the person was wearing an apron. The challenge to the evidence as to the person wearing an apron was based upon the appellant having looked at Redeland's website. In this regard, the appellant submitted that it was not open to his Honour to have regard to the "notorious ... effect of a recent visual depiction" on memory: see judgment at [53], at least without the benefit of expert evidence that that was the case. However, his Honour did not make this observation unassisted by principle. Rather, at [54], he drew upon the observations in criminal cases relating to identification evidence: see Ward v R [2012] NSWCCA 21, where McClellan CJ at CL reviewed the relevant authorities.
60In Alexander v The Queen [1981] HCA 17; 145 CLR 395 at 400, Gibbs CJ, in relation to identification of an accused person by a witness, said:
"... it would be unfair and improper to show to a witness, before the identification parade was held, a single photograph of a person who was said to be the suspect, and it would be unsafe to act on evidence of identification given in those circumstances: R v Russell [1977] 2 NZLR 20 at 27."
61Stephen J at 409 in Alexander said:
"Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace the original memory. Any subsequent identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting."
62In R v Blick [2000] NSWCCA 61; 111 A Crim R 326 at [28], Sheller JA held (James J and Dowd J agreeing):
"... unfortunately, to show Mr Smail a group of photographs in which only one was of a man with a goatee beard, when that was an identifying factor in Mr Smail's mind, is, in my opinion, little better than showing him only one photograph, the photograph of the appellant. The prejudice to the appellant was both unfair and very considerable because it placed firmly in the mind of Mr Smail the photographic image when he came to make his statement and to give evidence at the trial."
63This phenomenon has been described in the authorities as the "displacement effect" and evidence given following such viewing to be "worthless": see Alexander at 414 per Stephen J. See also Mason J in Alexander at 426. There are numerous authorities of the New South Wales Court of Criminal Appeal to the same effect: see R v Carusi (1997) 92 A Crim R 52 at 55 per Hunt CJ at CL (Newman J and Ireland J agreeing); R v Skaf [2004] NSWCCA 37 at [80]; Aslett v R [2009] NSWCCA 188 at [55]-[56] per Kirby J (Beazley JA and Johnson J agreeing). See also R v Agkul [2002] VSCA 222 at [26]-[27]; [2002] 5 VR 537. In Skaf, at [80], the Court of Criminal Appeal described the displacement effect in the following terms:
"The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person."
64The cases to which I have referred related to the question whether a warning should be given to the jury in respect of identification evidence, or whether, in a criminal trial, the prejudicial value of the identification evidence outweighed its probative value. Those questions did not arise in in this case. Nonetheless, these decisions do represent a long line of authority that recognises the shortcomings of identification evidence and the risk that such evidence can be affected by a person's viewing of photographic evidence. Whilst this line of authority comes from the criminal law, identification evidence can be an issue in criminal or civil proceedings. In my opinion, the notion of the displacement effect can be relevant in either, although there will be differences in application, having regard to different standards of proof and the particular issue to which the identification will relate.
65In my opinion, his Honour was not in error in concluding, at [55]:
"... the effect of visiting the website shortly before giving evidence affected [the appellant's] 'memory' of the person involved ..."
66In any event, this finding was consistent with the appellant's own evidence. The appellant accepted that he had always recollected that the other person was wearing a white shirt. Although he denied that he only remembered the person was wearing an apron because of what he had seen on the website, he did admit that "it came to [him]" and that when he saw the man in the picture, "it was straight away". As I understand the evidence, this meant that having seen the website, he immediately remembered the person on the stairs was wearing an apron. Under further cross-examination, he accepted that it was checking the website that led him to recall that the person was wearing an apron. The same can be said about the appellant's identification of the person as being of Islander appearance and as carrying a black tub.
67Accordingly, the appellant's cross-examination significantly undermined his identification of the person as a member of the catering staff. In addition, there was a substantial body of evidence that supported the probability that the person was not a member of the catering staff. Or, to put the matter in the converse way, there was a substantial body of evidence that negatived the probability that the person was a member of the catering staff.
68That evidence was as follows. First, whilst Mr Sun and Mr Lambert were wearing aprons, they each gave evidence that they were not the person on the stairs. Secondly, the evidence was the wait staff wore black trousers or skirts and a white shirt and, it would seem, black vests. No one gave evidence that, on this occasion, the wait staff wore aprons. Thirdly, on the evidence, it was highly unlikely that the catering staff would have used the stairs upon which the appellant fell, because the catering van was located near a different set of stairs. Fourthly, there was no reason for the catering staff to be carrying anything up the stairs. At the time the accident happened, the catering staff were packing up and, accordingly, things were being carried down to the catering van. Fifthly, Redeland stopped supplying alcohol at 3 pm. Sixthly, Redeland had its own alcohol supplier and, therefore, would not have purchased additional supplies from a nearby outlet. Accordingly, it was improbable that a member of the catering staff would have been using the stairs for bringing alcohol or other goods into the function at the time of the accident. It perhaps should be noted that it was not suggested that the catering staff were bringing more food to the function at that time. Next, as a matter of its business practice, the chefs were required to record if additional alcohol was required at a function. There was no record of that additional alcohol had been brought in. Finally, Mr Lambert gave evidence that he saw attendees bringing alcohol into the function.
69It needs to be noted that the only other evidence that supported the appellant's case that it was a member of the catering staff who bumped him was the evidence of Mr Sun that the builders labourers who attended the function were dressed in a distinctly different way from the catering staff. However, that evidence did not support an inference that 250 or so persons at the function were, or were dressed as, builders labourers. In particular, there was evidence that there were other service personnel present, being those who were setting up the marquee and who were involved in the provision of the entertainment. A description of a person wearing a white shirt is a very general description, particularly in the absence of any identification of the trousers the person was wearing. Given the appellant's evidence that he could not remember the colour of the trousers the person was wearing, the appellant's brother's evidence that the waiters were wearing white shirts and black trousers did not strengthen the probability that it was a member of the catering staff on the stairs.
70In my opinion, the evidence adduced by Redeland compellingly pointed to the person on the stairs not being a member of the catering staff. In those circumstances, it was open to his Honour to find the appellant had not established, on the balance of probabilities, that it was. Indeed, the weight of the evidence was such that I am of the opinion that this was the conclusion at which his Honour, on proper evaluation of the evidence, should have arrived.
71For that reason, the challenge to his Honour's reasoning at [58]-[61] is strictly academic. But in any event, I do not consider that his Honour was in error in his reasoning process in those passages, although, for the reasons already given, I do not agree that on all of the evidence, the strongest possibility was that the person who bumped the appellant was a member of the catering staff. Leaving that to one side, however, as his Honour stated, there was more than one possibility as to who the person might have been. Opinions as to the strength of each of the possibilities could vary as between different fact finders. His Honour took a particular view. I have disagreed with one aspect of that view. However, the essential finding of his Honour was that he was not satisfied on the balance of probabilities that the person was a member of the catering staff. There was no error in that conclusion. Accordingly, I would reject ground 1.