[This headnote is not to be read as part of the judgment]
The appellant was injured when he fell down approximately 15-20 stairs leaving a social work function whilst in the employ of the second respondent. The appellant alleged that he was bumped by a person coming up the stairs who was employed by, or under the direction or control of, the first respondent (a member of the catering staff).
The trial judge dismissed the claim against the first respondent because he was not satisfied that the person who bumped the appellant was a member of the catering staff.
On appeal to this Court, four issues arose for determination:
(1)Whether the trial judge failed to have regard to relevant evidence, including evidence which would have affected his analysis of the probabilities relating to the identity of the person who caused the appellant’s fall;
(2)Whether the trial judge’s failure to have regard to the relevant evidence was affected by a delay of 9 months in giving judgment;
(3)Whether the trial judge erred in his analysis of the probability relating to the identity of the person who had caused the appellant’s fall; and
(4)Whether the person who bumped the appellant was negligent.
The Court dismissed the appeal and the cross appeal with costs.
 That leaves for consideration the issue raised in ground 1. The appellant was required to satisfy the tribunal of fact, on the balance of probabilities, that the other person on the stairs was a member of Redeland’s catering staff: Evidence Act 1995, s 140(1). It was not suggested that there was anything about the claim that required the Court to have regard to the factors specified in s 140(2), or to use the language of the common law, this was not a case to which the Briginshaw standard applied: Briginshaw v Briginshaw  HCA 34; 60 CLR 336.
 The appellant submitted however that the trial judge’s approach, in examining alternative possibilities to exclude the probability which was most likely, was erroneous. In support of this submission the appellant referred the Court to Strong v Woolworths Limited  HCA 5; 246 CLR 182 where the plurality stated at :
“Woolworths’ submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths’ negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited. The point was illustrated by Hayne JA (as he then was) in Kocis v SE Dickens Pty Ltd. His Honour posited a case in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff’s fall. As Hayne JA observed, a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities.” (citations omitted) (emphasis added)
 In Jones v Dunkel  HCA 8; 101 CLR 298 Dixon CJ, at 304, observed:
“In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.”
 A finding on the balance of probabilities involves a finding of a probability greater than 50 per cent. Whether or not a court is so satisfied will depend upon the whole of the evidence. Relevantly, a plaintiff bears the onus of satisfying a tribunal of fact, on the balance of probabilities, that a defendant was negligent. The evidence may give rise to more than one possibility, but in that circumstance, the principle is the same. For the plaintiff to succeed, the tribunal of fact must be satisfied on the balance of probabilities of facts that will establish liability in the defendant.
 This was explained in Bradshaw v McEwans (1951) 217 ALR 1 at 5, in a passage quoted, inter alia, by Dixon CJ in Jones v Dunkel as follows:
“Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise …” (citations omitted)
 However, in Jones v Dunkel, at 305, Dixon CJ observed:
“But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”
 In a related submission, the appellant submitted he had adduced significant evidence of the negligence of the respondent and that the factual onus shifted to the respondent to prove that the other person was not their employee or agent. The appellant referred to Strong v Woolworths at -. The appellant submitted that this onus required Redeland to lead reliable evidence that the other person on the stairs could have been someone other than a member of the catering staff. The appellant submitted the respondent “failed to discharge this burden“, so that his own evidence remained more persuasive.
 This submission either failed to adequately grasp the principles that govern the requirements of proof in a particular case: see Strong v Woolworths at - per Heydon J, or alternatively, reflected a belief in the strength of the appellant’s evidence, unmitigated by a consideration of the strength of Redeland’s evidence. There may well have been aspects of both of these matters involved in the submission. This was not a case where material evidence was peculiarly within the defendant’s knowledge: Strong v Woolworths at . In a case of that type, a plaintiff may succeed by adducing slight evidence. The defendant then faces a tactical decision as to whether to adduce evidence to explain the plaintiff’s evidence: De Gioia v Darling Island Stevedoring & Lighterage Company Ltd (1941) 42 SR (NSW) 1 at 4; Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at 970; Hampton Court Ltd v Crooks  HCA 28; 97 CLR 367. Rather, this was a case where both the appellant and Redeland adduced evidence of the likelihood of a person on the stairs being a member of the catering staff.
 As I have said, the appellant was required to adduce evidence sufficient to satisfy the trial judge that the other person on the stairs was a member of the catering staff. Had the appellant’s evidence in chief been the only evidence, it would have been open to his Honour to have been satisfied he had established the identity of the person as a member of the catering staff. However, there was an attack upon the appellant’s evidence in cross-examination, particularly as to his recollection of what the person on the stairs was wearing. His clear recollection was of a white shirt. He later said the person was wearing an apron. The challenge to the evidence as to the person wearing an apron was based upon the appellant having looked at Redeland’s website. In this regard, the appellant submitted that it was not open to his Honour to have regard to the “notorious … effect of a recent visual depiction” on memory: see judgment at , at least without the benefit of expert evidence that that was the case. However, his Honour did not make this observation unassisted by principle. Rather, at , he drew upon the observations in criminal cases relating to identification evidence: see Ward v R  NSWCCA 21, where McClellan CJ at CL reviewed the relevant authorities.
Brisbane Barrister – David Cormack