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In Herrington v British Railways Board [1972] AC 877 there was evidence that a chainlink fence which ran along  a railway line equipped with live electric rail had been trampled by children and that this had been the case for some time boefroe the accident.

Lord Diplock said at pages 930F-931B:

“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain 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.

 A court may take judicial notice that railway lines are regularly patrolled by linesmen and gangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”

Note that Lord Diplock is making the point that failure to call rebuttal evidence may strengthen the hand of the party who has called evidence.

This decision was applied in Wisniewski and, on the question of evidence of quantum in Hughes v Pendragon Sabre Ltd [2016] EWCA Civ 18.

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