Adverse inferences are means by which at least an evidential burden can be placed on the Defendant’s side of the litigation fence. They can be drawn where there is a failure to call witnesses that are available or to adduce documents that should be available. In the personal injury arena, there have been efforts to enlarge the scope to which such inferences can and should be drawn. The limits of such arguments reached the Court of Appeal last November, being tested in Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWCA Civ 2110.

Authorities on adverse inferences before Mackenzie

The judgment of Dingemans LJ (now Vice-President of the Queen’s Bench Division) contains a detailed review of the law relating to the inferences a court can properly draw in the absence of evidence. In chronological order, the following were considered:

(i) In BRB v Herrington [1972] AC 877, the House of Lords confronted a situation where the defendant did not call any evidence about a fence separating the railway from the meadow which had been in a poor state of repair for several months. Noting that not calling evidence was a legitimate tactical move in the adversarial system of litigation, Lord Diplock nonetheless said:

but a defendant who adopts it cannot complaint if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold.

(ii) In Wiszniewski v Central Manchester Health Authority [1998] PIQR P324, the Court of Appeal held that the silence or absence of a witness might justify drawing an inference adverse to the party, but there must be some evidence which raised a case to answer before an inference could be drawn, and if an explanation for the absence was given, even if it was not wholly satisfactory, the potentially detrimental inference may be reduced or nullified.

(iii) In Keefe v Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683, another deafness case, the Court of Appeal endorsed the view that where a defendant, by reason of a breach of duty, makes it difficult or impossible for a claimant to adduce relevant evidence going to proof of other breaches of duty, the defendant risks adverse findings of fact against them.

(iv) In Shawe-Lincoln v Neelakandan [2012] EWHC 1150 (QB), Lloyd Jones J distinguished Keefe, saying at [81]-[82] that:

“Keefe is concerned with the weight which is to be attached to evidence and the circumstances in which the court may draw inferences. This is how Longmore LJ explained it… Whether it is appropriate to draw an inference at all and, if so, the precise nature and extent of such an inference will depend on the particular circumstances of each case. Relevant considerations will include the proximity between a breach of duty and the non-available evidence, the effect of the other evidence before the court and what other evidence might have been available but which is not before the court.

(v) In Garner v Salford City Council [2013] EWHC 1573 (QB), Keith J stated at [28]:

“The case is unlike Keefe v The Isle of Man Steam Packet Co Ltd [2010] EWCA 683 (Civ), in which the Court of Appeal held that the defendant could not assert that it had not been proved that the noise levels on its boats were excessive when in breach of duty it had failed to measure those levels. There was no duty on the company in 1978 to check the lagging for asbestos, only guidance …

(vi) Lastly, in Petrodel Resources Ltd v Prest [2013] 2 AC 415, Lord Sumption commented on BRB v Herrington at [44], noting that the Courts had recoiled from parts of the statement in Herrington recording they might “convert open-ended speculation into fact”. He noted that there must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it. He allowed that silence of one party in the face of the other party’s evidence may convert that evidence into proof in relation to matters likely to be within the knowledge of the silent party.

The findings in Mackenzie

Having carried out this digest, Dingemans LJ derived two key propositions:

“First whether it is appropriate to draw an inference, and if it is appropriate to draw an inference the nature and extent of the inference, will depend on the facts of the particular case, see Shawe-Lincoln at paragraphs 81-82.

Secondly silence or a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for the absence of the witness or document, see Herrington at page 970G, Keefe at paragraph 19 and Petrodel at paragraph 44.

What are the main practitioner points to take home from Mackenzie?

  1. The Court of Appeal was clear that there should be no risk that the adverse inference being drawn in Keefe should be elevated to a rule of law to be applied; rather, Keefe should stand simply as an example of a proper approach to finding facts in a particular case.
  2. In the future, it was recommended that in cases where it is relevant to determine whether a survey was undertaken, both parties should address the existence of documents in either questions pre-trial or in the evidence at trial to avoid the trial judge having to make a factual finding based solely on submissions.
  3. Of itself, absence of evidence cannot be interpreted as evidence of its absence. In Mackenzie the determination made by the trial judge (HHJ Vosper QC) and upheld was that, whilst there were no documents showing that a noise survey had been carried out and Mr Mackenzie had not seen a noise survey carried out, he was not prepared to find that no noise survey had in fact been carried out.