Absence of witnesses
40 His Honour noted that it was "at the forefront of the final submissions of counsel for the plaintiff that the plaintiff should succeed on liability because counsel for the defendant did not call any witnesses": Judgment, p25. His Honour noted that the submission was based on the principle stated in Jones v Dunkel (1959) 101 CLR 298 that an inference favourable to the plaintiff for which there was support in the evidence might more confidently be drawn when a person who might have given evidence to the contrary and whom one might expect the defendant to call, was not called, without explanation for his or her absence. Clearly the submission, as recorded, went far beyond that principle.
41 The plaintiff, on the appeal, did not complain of the statement of principle set out in his Honour's judgment (at pp25-28) but rather the failure to apply the principle in the assessment of the plaintiff's credit. It was contended that where there is doubt as to the accuracy or truthfulness of the plaintiff's evidence, those doubts may more readily be resolved in his favour where no witness is called to rebut his assertions. In particular, it was argued that, if, as was suggested in cross-examination, the step was not loose and the plaintiff never suggested to Mr Pierce (the mechanic) that it was, it would have been open to the defendant to call Mr Pierce to contradict the plaintiff. Similarly, Mr Craig could have been called to rebut the suggestion that the plaintiff told him that he slipped when the step moved.
42 The trial judge relied on the reasoning of Gleeson CJ and McHugh J in Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121 at [51]-[53] for the proposition that the principle does not apply to allow an inference to be drawn in the absence of supporting evidence. That proposition may be accepted: to draw an inference in favour of the plaintiff in circumstances where the plaintiff has failed to prove sufficient facts to demonstrate negligence, is in effect to reverse the onus of proof and place on the defendant the obligation of proving that it took reasonable care in the circumstances. It is significant that in Schellenberg, the other doctrine discussed was that of res ipsa loquitur, namely that negligence can be inferred from the fact of an accident because the occurrence, unexplained, is nevertheless of a kind which normally does not occur without negligence. Indeed, other members of the Court did not address Jones v Dunkel and the case was not one which was concerned with the credibility of the plaintiff.
43 In my view there is some substance in the plaintiff's complaint with respect to the manner in which the trial judge dealt with the suggested reliance on Jones v Dunkel. On the other hand, to the extent that error is revealed, it was not a material error in the circumstances of the trial.
44 There is a danger, which is less likely to arise in the case of a jury trial, that a judge giving reasons for his or her conclusion will analyse the evidence in a manner which separates it into compartments. The danger is that some evidence will be considered in isolation and rejected as improbable, rather than being given some (albeit limited) weight, and placed into the balance prior to reaching a conclusion in relation to a critical fact. Accordingly, there may be cases where a trial judge will be in error in rejecting a plaintiff's testimony as implausible or incredible and then concluding that there is "no evidence" from which the necessary inference can be drawn and therefore no consideration need be given to the failure of the defendant to call a witness in its camp, who might have contradicted the plaintiff. Thus, in the present case there was evidence of a defect in the vehicle; the question was whether the plaintiff's evidence to that effect should be accepted. Given that he claimed to have reported the defect to the mechanic, if the defendant and the mechanic had come to Court together and were sitting in the courtroom, yet neither was called to give evidence, that fact could reasonably have influenced the judge's decision as to whether or not to accept the description of the defect given by the plaintiff.
45 However, the hypothetical example indicates why the issue was not critical in the present case. First, it appears to have been known that both parties sought to subpoena the defendant himself, but were unsuccessful in bringing him to Court: Judgment, p9. Reference to the failure of attempts to find Mr Collins also appear at Tcpt, p103. Further, the plaintiff was asked in re-examination whether he had seen Mr Craig, Mr Pierce or Mr Collins at the Court and said that he had not: Tcpt, p90. However, it was not clear that Mr Collins could have given evidence of direct relevance, because the plaintiff did not say he had spoken to Mr Collins at any stage about the defect: indeed, he denied that he had. The witnesses of more direct relevance were the mechanic, Mr Pierce, and the office co-ordinator, Mr Craig. They were fellow workers, at the time of the accident and, if they had been available, there is no suggestion that they might not have been called by the plaintiff, who was, apparently, prepared to subpoena Mr Collins. Indeed, there was an absence of evidence as to whether they still worked for the defendant or his business or company. No explanation was given as to their absence, either by the plaintiff or the defendant. If it could be inferred that they were still in the employ of the defendant, an inference might have been drawn from the failure of the defendant to call them, but in all the circumstances little weight could be attached to such an inference.