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[Judgment edited and names removed][The full transcript can be found on LexisNexis]

In applying the principles Jay J said the following:

Findings Of Fact: Adverse Inferences

[57] Upon the completion of the evidence I invited Counsel to identify the findings of fact each of them wished me to make. Mr Walker did not take up my invitation although during the course of his written and oral arguments he did refer in general terms to the circumstances of the instant case which in his submission were critical to his contention that no relevant duty of care was generated.

[58] … there is a preliminary issue which I need to resolve, namely whether I should be drawing inferences against the Defendant on the ground that a tactical decision was made by Mr Walker not to call two potentially important witnesses from whom witness statements had been obtained, namely [Mr X] and [Mr Y]. I indicated to Mr Walker during the course of the trial that I was unhappy with his client’s approach, and at one stage was contemplating the reception of these witness statements under CPR r 32.5(5), making such use of them as I saw fit. However, it was Mr Soole who advised me that such an approach would not be consistent with Court of Appeal authority, and there the matter rested. But the question of drawing adverse inferences is very much a live issue.

[59] (The judged reviewed Wisniewski v Central Manchester HA  [1998] PIQR P 324, [1998] (CA))

[60] The Claimant’s main ambition is to invite me to draw an adverse inference against the Defendant… namely that at the initial meeting…(it was) agreed …that there would be no repetition of the potentially dangerous behaviour which occurred in 2008. Mr Soole did not submit that I could or should draw the inference that at the initial meeting there was indeed a discussion and agreement reached along these lines: that would be expressly to contradict his own case, which was flatly to deny that there was any such discussion. Rather, it would be appropriate to infer that (the missing witness) must have been under the apprehension (as opposed to the misapprehension) that it was his responsibility to ensure that health and safety matters were being properly addressed by the Defendant.

[61] The final piece of the jigsaw of Mr Soole’s ingenious and sophisticated submission is that his client’s supplementary witness statement does provide evidence of the very discussion the existence of which Mr Z strongly denies. The Claimant after all refers, as he is entitled to do, to the witness statement of(the missing witness) if only to repudiate its contents. Accordingly, the submission is that the court has some evidence on a relevant issue on which to found the drawing of the adverse inference, that issue being the acceptance of responsibility by (the missing witness) for health and safety matters at this Events Day.

[62]…I accept Mr Walker’s riposte that a close reading of CPR rr 32.4, 32.5 and 32.5(5) does not permit the “other party”, here the Claimant, to deploy the Defendant’s witness statements in this way, either directly or through the back door. Mr [Z’s] supplementary statement has no free-standing evidential status: its role was, and is, to comment on the Defendant’s anticipated evidence but it could only become admissible, and relevant, if that evidence was in fact given. As it happens, the evidence was not adduced by the Defendant, and there is no longer any need for the Claimant to deny the existence of discussions about which no admissible evidence has been given. The Claimant’s supplementary witness statement therefore ceases to have any evidential value. Secondly, the fact that [the missing witness] may have agreed with the Ball Team that there should be no repetition of the potentially dangerous behaviour perpetrated in 2008 does not assist me one way or another in deciding whether the Defendant assumed any relevant responsibility to secure the health and safety of anyone. In my judgment, the existence of such an agreement is equally consistent with [the missing witness) leaving it entirely to the [team] to implement.

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