Gaskell v Denkas Building Services Pty Limited

[2008] NSWCA 35

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Jones v Dunkel inference
3. › Failure to call witness
4. › Whether trial judge obliged to draw adverse inference
5. › Whether inference available where other evidence contradicts plaintiff's account
1. Practice and Procedure
2. › Delay in delivering judgment
3. › Reserved judgment
4. › Whether delay of 11 months vitiated findings
5. › Whether reliance on demeanour
6. › Whether reasons demonstrate adequate grasp of evidence
1. Occupiers Liability
2. › Common areas of office building
3. › Tenant injured in slip and fall in toilet
4. › Whether occupier knew or ought to have known of recurring hazard
5. › Foreseeability of risk
6. › Standard of care

Quick Take

A trial judge is not compelled to draw a Jones v Dunkel adverse inference from a party's failure to call a witness, even where the inference is available, if the party seeking the inference has presented evidence so unsatisfactory and unreliable that the inference cannot overcome the deficiencies. An 11-month delay in delivering judgment does not vitiate findings where the judgment is meticulous, does not rely on demeanour, and demonstrates a thorough grasp of the evidence.