ADAMS v HAKOAH CLUB LTD [1997] NSWCA 8

ADAMS v HAKOAH CLUB LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY and STEIN JJA 4 September 1997, 4 September 1997

[1997] NSWCA 8

Negligence — Occupiers duty of care — Appellant injured in fall at respondents premises — Causation — Whether no evidence that appellant had slipped on something — Rule in Hampton Court v Crooks — "Slight evidence" — Jones v Dunkel — Preconditions for Jones v Dunkel submission.

Evidence — Admission of statement as business record — Discretion to exclude — Unavailability of witness — Evidence Act 1995 (NSW) s69, s135.

Beazley JA This is a plaintiff's appeal from a decision of Newton ADCJ whereby verdict was entered for the respondent/defendant on her claim for damages for injury sustained in a fall at the respondent's premises.

Issues on Appeal

Three or possibly four points were raised on the appeal:

(i) that the statement of a witness was wrongly admitted;

(ii) that his Honour failed to have regard to the elementary principle that where relevant evidence is peculiarly within the knowledge of the defendant, slight evidence may be enough for the plaintiff to discharge the onus which at all times remains upon the party bringing the case: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371.

(iii) that his Honour failed to correctly apply the principle in Jones v Dunkel (1959) 101 CLR 298.

(iv) that his Honour wrongly concluded that there was no evidence that the appellant had slipped on anything. It was submitted that this error was relevant to the Jones v Dunkel ground, in that had his Honour correctly understood the evidence that the appellant had slipped on something, he ought, in this case, to have drawn an appropriate inference either giving weight to the plaintiff's case that she had slipped or, alternatively, drawing an inference that witnesses who were not called would not have given evidence to assist the respondent's case.