The Jones v Dunkel Adverse Inference in Motor Accident Claims

Written by Kaitlyn Willers

The outcome of motor vehicle disputes that proceed to litigation largely come down to which parties’ evidence the Court accepts. Sometimes, the most important evidence is not necessarily what is said, but rather whether a witness is called to give evidence at all. The High Court’s decision in Jones v Dunkel (1959) 101 CLR 298 is the leading authority for the principle that a Court may draw an adverse inference where there is an unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party.¹

In Jones v Dunkel, the case involved a fatal truck accident where the driver, Dunkel, was not called to give evidence. The Court held that failing to produce a material witness “serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that … [the witness], if brought, would have exposed facts unfavourable to the party”.² This means, if a driver, passenger or other key witness is not called without a reasonable explanation, then the Court may infer that their evidence would not assist that party. The inference is discretionary and always depends on the context of the evidence overall, but it can be a powerful evidentiary tool when used properly.

Limitations of the Jones v Dunkel Inference

There are several limitations to the Jones v Dunkel rule. Firstly, it is an inference only and it cannot be applied to create or invent evidence that has not been presented, and it cannot be used to fill evidentiary gaps. As Croft J observed in Primrose Meadows Pty Ltd v River View Pty Ltd (2019), “the rule in Jones v Dunkel does not provide a means for a party to fill in the facts of its case before the threshold of the operation of the rule is reached and nor is it a rule which operates to require a party to give cumulative evidence”.³ Therefore, the party seeking to apply the Jones v Dunkel rule, must have already led some evidence on the issue for an inference to be drawn from an absent witness. The inference cannot replace or create facts that are otherwise not supported.

Secondly, the rule can only arise if certain conditions are met. These are that the absent witness must be one that would be expected to be called by one party than the other, their evidence would clarify a matter in dispute, and the absence is unexplained.⁴ For example, if the party can show the witness was genuinely unavailable due to illness or travel, or if both parties had equal access to the witness, then an adverse inference is not available. Further, the absent witness must have been able to shed light on a contested issue and not merely repeat evidence already given. It is up to the party seeking an adverse inference to establish that these elements are met.

Thirdly, the Jones v Dunkel rule is discretionary. The Court will consider whether the inference would substantially alter the balance of evidence. As the High Court stated, any such inference is subject to “explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure”.⁵ Even if the above elements are met, the Court is not required to draw the inference. If the party with the absent witness has already given a persuasive case, the Court may find the inference is unnecessary.

Conversely, if the absent witness would assist in settling a material issue in dispute such as which lane a vehicle was travelling in then the witness may tip the scales making the Court more inclined to draw an adverse inference.

Application in Motor Vehicle Claims

The Jones v Dunkel rule frequently arises in motor vehicle claims which proceed to litigation as disputes in liability often arise from conflicting versions of how a collision occurred. Common scenarios include a passenger not giving evidence or failure to call an expert. When such a witness is unaccounted for, a party may seek that the Court make an adverse inference. There have been recent cases that demonstrate both sides of the application of the Jones v Dunkel rule in the context of motor vehicle claims.

In Macri v Mckinlay [2020] ACTMC 11, a car passenger commenced litigation after injury in a rear-end collision. The passenger failed to call their driver to give evidence. The Court agreed that the elements were satisfied and drew an adverse inference that the driver’s uncalled evidence “would not have assisted” the passenger’s case. That inference proved decisive with the Court accepting the opposing party’s experts that the collision was minor and not the cause of injury, noting he did so “with greater confidence because Ms Pettit was not called” by the Plaintiff.⁶

Conversely, in Lim v Cho [2018] NSWCA 145, a husband (car passenger) commenced proceedings against his wife (the driver) after sustaining injury after leaping from the moving vehicle. In the primary judgement delivered by the New South Wales District Court in 2017, the Court refused to draw an adverse inference on the basis that the defendant had substantially adopted the plaintiff’s version of events. On appeal, the New South Wales Court of Appeal affirmed the decision of the District Court and the limitations of the Jones v Dunkel rule. The Court emphasised that the rule “allows an inference that evidence not called by a party would not have assisted that party, but not that the evidence would have been adverse to that party. Nor does the rule enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called.”⁷

The Court pushed back on any assumption that the Jones v Dunkel rule allows courts to infer that uncalled evidence would have been unfavourable. In actuality, the rule only allows a limited inference that the evidence would not have helped the party who could have adduced it. It cannot be used in a speculative manner to suggest that uncalled evidence would have actively supported the opposing party, or to reconstruct or give meaning to missing parts of a case. It was settled that “until the plaintiff proves facts from which an inference of negligence can be drawn, the defendant is not called upon to say anything.”⁸ Further, in general, “no inference can be drawn unless evidence is given of facts requiring an answer.”⁹ These statements serve to clarify that a defendant cannot be expected to provide evidence in response to the plaintiff until a sufficient factual basis to infer negligence has been established. This ensures that defendants are only required to adduce evidence once the plaintiff has established a prima facie case.

Conclusion

These cases demonstrate how the Jones v Dunkel inference can be double edged in the context of motor vehicle claims. A defendant may seek an adverse inference where a plaintiff fails to call a passenger or witness. Equally, having established a prima facie case, a plaintiff may try to do so when a witness from the defendant’s case is absent. The application of an adverse inference rests upon the Court’s determination provided the elements discussed above are met.

Guidance for Claims Handlers

Claims handlers and insurers should be proactive about the Jones v Dunkel rule, using it to their advantage and guarding against it when it works against their case.

Key strategies include:

1. Identify key witnesses early. In every motor accident file, make a list of all persons present: drivers, passengers, pedestrians, and any independent witnesses (e.g. other motorists, CCTV, taxi drivers, etc.).
2. Ensure critical witnesses are available. If your insured or any critical witness has evidence that favours your case, ensure they attend the hearing. Use subpoenas or witness summonses well before the hearing. If a witness is ill or genuinely unavailable, formally notify the court and give evidence of attempts to secure their attendance.
3. Document good reasons for any absence. Whenever you cannot call a witness, an explanation must be provided. If a witness cannot attend, consider tendering their prior statement or seeking a hearsay exemption for an unavailable witness. Courts are less likely to draw an inference if a party has given a credible excuse for a witness’s absence.

Should you wish to discuss any of the above, please contact Brooke Caulfield on 03 9947 4511 or any member of the Ligeti Partners team on 03 9947 4500.

1. Judicial Commission of New South Wales, Civil Trials Bench Book (Judicial Commission of New South
   Wales) https://www.judcom.nsw.gov.au/bench-books-resources/bench-books-handbooks/civil-trials-bench-book [4-1910]. ↩︎
2. Jones v Dunkel (1959) CLR 298, 321. ↩︎
3. Primrose Meadows Pty Ltd v River View Pty Ltd [2019] VSC 263, [19]. ↩︎
4. Payne v Parker [1976] 1 NSWLR 191, 201. ↩︎
5. Jones v Dunkel (1959) CLR 298, 321. ↩︎
6. Macri v Mckinlay [2020] ACTMC 11, 12 [69]. ↩︎
7. Lim v Cho [2018] NSWCA 145 at [41]. ↩︎
8. Ibid. ↩︎
9. Ibid. ↩︎