Kidman v Corstorphan

[1999] VSCA 28

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Evidence
2. › Failure to call witnesses
3. › Jones v Dunkel principle
4. › Failure by plaintiff without explanation to call available witness
5. › Whether trial judge properly applied principle
6. › Evaluative aspect of principle — resolution of doubts and ambiguities
7. › Whether failure to apply principle justified new trial
1. Negligence
2. › Medical negligence
3. › Breach of duty by surgeon
4. › Pre-operative assessment and preparation
5. › Whether umbilicus infected at time of operation
6. › Sufficiency of evidence to support finding
1. Appeal
2. › New trial
3. › Misdirection by trial judge
4. › Failure to advert to and properly apply evidentiary principle
5. › Whether misdirection could have had no effect on result

Quick Take

The Jones v Dunkel principle has two distinct aspects: first, an inference that uncalled evidence would not have helped the party who failed to call it; and second, an evaluative aspect by which the failure may be used to resolve doubts, ambiguities and conflicts in the evidence actually given. A trial judge sitting alone who fails to advert to and apply the evaluative aspect commits a misdirection that may warrant a new trial. There is also an overriding obligation to weigh evidence according to the respective powers of the parties to produce it.