Gaskell v Denkas Building Services Pty Limited (2008) NSWCA35

Court of Appeal NSW

Hodgson JA, Basten JA and Bryson AJA

In Brief

  • The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called, there must be a basis elsewhere in evidence to support that inference.
  • The rule in Jones v Dunkel (1959) 101 CLR 298 relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case.


  • On 10 September 1998 the plaintiff, Mr Gaskell, was injured when he slipped on the floor of the men's toilet in an office building at Railway Parade Engadine. Mr Gaskell's company was the tenant of an office suite owned by Denkas Building Services Pty Limited, the first defendant, and Durrusi Holdings Pty Limited, the second defendant. Proceedings were later discontinued against the second defendant as the company was deregistered.
  • The men's toilet in the office building was one of the common areas for use by the plaintiff and other tenants and persons associated with them. The lessors were the occupiers of the common areas including the toilet.
  • The managing agent, Harding Rogers & Associates Pty Limited ("HRA"), the third defendant, had responsibility for managing the common areas including cleaning.
  • The major question for resolution was whether the plaintiff had observed pooling of water on the floor of the men's toilet on occasions prior to 10 September 1998 and, if so, whether he had ever complained to representatives of Denkas or HRA about this matter.
  • The plaintiff alleged he complained to Mr Kasunic, the principal of Denkas, before the accident that there was cooling of water in the men's toilet.
  • To establish negligence it was necessary for the plaintiff to prove that the occupier or the managing agent, or both, knew or ought reasonably to have known of the danger of slipping on the tiles in the toilet. This would show reasonable forseeability of danger of slips and falls, and consideration would move to the standard of care: to the reasonable response of the occupier to the foreseeable risks.

District Court

  • The trial judge, Johnson J., did not consider the plaintiff to be a credible witness, finding that the plaintiff had not complained to the defendants about pooling of water. Bearing in mind the plaintiff's propensity for written complaint, in respect of these matters, Johnson J found it difficult to understand that the plaintiff did not refer to his prior complaints of pooling in the bathroom prior to 10 September 1998 or when writing to the defendants following the incident.
  • The trial judge found the absence of such contemporaneous written complaint after the fall was a telling factor against the plaintiff's account of events allegedly preceding the fall.
  • The plaintiff's position was further compounded by the matters which were alleged, and not alleged, by way of further and better particulars provided before the hearing, in the plaintiff's counsel's opening address and in the plaintiff's own evidence in chief on the first day of the trial. No mention was made of the plaintiff's experiences with water pooling on the bathroom floor and subsequent complaints before his accident on 10 September 1998 until the sudden andsomewhat dramatic change in the plaintiff's evidence on the second day of the trial when it was alleged the plaintiff had earlier observed water pooling and alerted the representatives of Denkas and HRH to that fact. The trial judge found this difficult to accept.
  • The plaintiff's position was worsened further by the sworn evidence of Mr Rogers and Mr Harding that no such complaint was ever made to them. The trial judge considered this fortified his conclusion that the plaintiff's evidence did not establish, on the balance of probabilities, that some prior complaint was made.
  • His Honour disposed of the case against HRA by finding it had not been established that HRA was ever informed of any alleged pooling problem in the toilet and therefore the plaintiff had not demonstrated any negligence on HRA's part.
  • In disposing of the case against Denkas his Honour found in circumstances where Denkas was unaware of any alleged pooling problem in the men's toilet and a system of cleaning was in place with respect to that facility, no basis had been demonstrated by the plaintiff for a verdict under the claim in contract. There had been an accident-free history in the men's toilet for several years prior to 10 September 198. The first slip and fall accident was that involving the plaintiff. The premises were reasonably fit and safe for ordinary use as a men's toilet to be used by adult males in conjunction with commercial office premises: cf Jones v Bartlett at 178-180 per Gleeson CJ.

Court of Appeal Decision

  • Bryson AJA delivered the unanimous judgment (Hodgson JA and Basten JA agreed), dismissing the appeal.
  • His Honour held that the trial judge's rejection of the plaintiff's evidence of prior complaint was a sufficient basis for the verdict for the defendants because, on the evidence, the plaintiff's prior complaints were the only basis on which it could have been found that the defendants knew or ought to have known of the recurring presence of pooled water.
  • Bryson AJA considered prior knowledge of water pooling on the floor was a significant issue as the trial judge said; unless the occupier and managing agent knew, or reasonably ought to have known that pooling of water on the tiles happened recurringly there was no basis for deciding there was a reasonably foreseeable risk of slips and falls caused by interaction of the tiles and water on them. His Honour indicated the standard of care and reasonable response are later considerations.
  • His Honour considered the trial judge's disposition on the issue of the plaintiff's credibility was not based on an observation or view about his demeanour while giving evidence, but rather was founded upon careful reference to the evidence; of matters and circumstances which led the trial judge not to rely on the plaintiff's evidence.
  • Such evidence caused the trial judge to defer from drawing an adverse inference upon Denkas for failing to call its director Mr Kasunic, who was the person the plaintiff alleged he directed his complaints to. The trial judge referred to thepassage in the judgment of Campbell J in Manly Council v Byrne (2004) NSWCA123 at 51:

" Thus, if a witness is not called two different type of results might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. "

Even though a jury should be directed without the availability of the inferences which are recognised by Jones v. Dunkel, it is entirely a matter for the jury whether it actually draws one or both of those inferences: Café v Australian Portland Cement Co Pty Limited(1965) 83WN (NSW) (Pt 1) 280. Applying this principle to this situation of a trial judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences."

  • The trial judge did not draw an adverse inference in relation to Denkas's failure to call Mr Kasunic because of his view concerning the facts which could be found on the evidence of the plaintiff, that the trial judge considered to be unsatisfactory. Bryson AJA considered the trial judge's reasoning to be "orthodox and correct" and dismissed the plaintiff's appeal.


  • The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. Such an inference is available only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support the inference.

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