Case: Holloway v McFeeters [1956] HCA 25 ; (1956) 94 CLR 470 , 
Outcome: applied
Krueger's case was thus based on inferences, which it said should be drawn from established facts. The principles to be applied in such a case are well established. They were described by Dixon CJ in Holloway v McFeeters [1956] HCA 25 ; (1956) 94 CLR 470 at 477, and by Williams, Webb and Taylor JJ at 480 and 481 (in the context of litigation arising from a vehicle collision) by comparing and contrasting the hypotheses that could be adopted to explain proved facts and the drawing of an inference from those facts. Dixon CJ said at 477: The state of facts reached by inferences is itself compatible with a number of hypotheses, some of them implying fault on one side, some on the other, some on both sides. Hypotheses of this kind are not inferences. What is required is a basis for some positive inference involving negligence on the part of the driver as a cause of the deceased's death. The inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them. It need not be an inference as to how precisely the accident occurred, but it must be a reasonable conclusion that the accident in one way or another occurred through the lack of due care on the part of the driver and not otherwise. 11 These principles were restated by Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at 304-305, again by comparing and contrasting hypotheses or conjecture on the one hand, and the drawing of inference on the other. He said: [I]n any case, we are not concerned with a choice between rival conjectures. 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 . It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture." These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd . [(Unreported, delivered 27th April 1951)], which is referred to in Holloway v. McFeeters [1956] HCA 25 ; [(1956) 94 CLR 470] , by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." [1956] HCA 25 ; [(1956) 94 CLR 470 , at 480-481] 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 . (Emphasis added)