Twynam Agricultural Group Pty Ltd v Williams - [2012] NSWCA 326

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326
Hearing dates: 5 September 2012
Decision date: 10 October 2012
Before: Allsop P at [1]
Beazley JA at [2]
Campbell JA at [3]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
EVIDENCE - witnesses - credibility - plaintiff employed by contractor on cotton farm - plaintiff driving vehicle on farm which collided with culvert and overturned - primary judge made a factual finding that the owner and operator of farm had breached its duty of care by failing to mark the culvert as a hazard - factual dispute as to presence of warning flags - appellant argued primary judge had been in error in preferring the evidence of witnesses who stated that there were no flags against evidence of other witnesses who said that flags were present - no error demonstrated - primary judge's reasoning based on demeanour in cross examination, objective indicia and expert evidence - appeal dismissed
EVIDENCE - photographs - limitations on use of photographs in fact finding - photographs used to evaluate explanations given by various witnesses - permissible use
Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; 168 ALR 407
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098
Category: Principal judgment
Parties: Twynam Agricultural Group Pty Ltd (Appellant)
Rodney John Williams (First Respondent)
Inland Watering Pty Limited (Second Respondent)
Representation: Counsel:
GM Watson SC; CM Lee (Appellant)
S Norton SC; PN Khandhar (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Lee & Lyons Lawyers (Appellant)
Stacks/The Law Firm, Taree (First Respondent)
Moray & Agnew (Second Respondent)

File Number(s): 2009/297953
Decision under appeal

Citation:

Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098

Date of Decision:

2011-09-30 00:00:00

Before:

Hoeben J

File Number(s):

2009/297953

Judgment

ALLSOP P: I agree with Campbell JA.

BEAZLEY JA: I agree with Campbell JA.

CAMPBELL JA:

Nature of the Case

The Appellant is the occupier of a property known as Collymongle Farms, located at Collarenebri. That property comprises 35,000 hectares. Part of it is irrigated, and used for the growing of cotton.

The First Respondent, Mr Rodney Williams, was seriously injured on the property…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Twynam Agricultural Group Pty Ltd v Williams and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWCA 326
Decision Date: 10 October 2012

CaseChat Overview and Summary

The appeal concerned a collision where the plaintiff, an employee of a contractor on a cotton farm operated by the appellant, Twynam Agricultural Group Pty Ltd, was injured when the vehicle he was driving overturned after hitting a culvert. The primary judge had found that the appellant breached its duty of care by failing to mark the culvert as a hazard. The central dispute on appeal was whether the primary judge erred in preferring the evidence of witnesses who stated that warning flags were absent at the time of the accident over the evidence of witnesses who claimed flags were present.

The legal issues before the appellate court were whether the primary judge had made an error in assessing the credibility of witnesses, particularly in preferring certain testimony regarding the presence or absence of warning flags. The court was also required to consider the limitations and permissible use of photographs as evidence in evaluating witness explanations and factual findings.

The appellate court dismissed the appeal, finding no error in the primary judge's assessment of witness credibility. The primary judge's reasoning was based on a combination of factors, including the demeanour of witnesses during cross-examination, objective indicia, and expert evidence. The court noted that the primary judge had observed inconsistencies in the evidence of certain witnesses, particularly concerning their qualifications and concessions made under cross-examination, which provided a basis for regarding their testimony with suspicion. Furthermore, the court found that photographs, when used to evaluate witness explanations, were permissibly used by the primary judge. One photograph, in particular, showed the culvert outlet unmarked by a flag, and a witness conceded that a flag should have been present but was missing, with no explanation offered. The court affirmed that the primary judge was entitled to rely on such concessions and objective evidence in reaching his findings.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Similarly, McHugh J, sitting as a single judge of the High Court, in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; 168 ALR 407 at [67] said: In the present case, when the primary judge gave some examples of the matters that led to his regarding Mr Farr as more reliable than Mr Goldsmith he was doing all that was required. Mr McGrath gave evidence that the flags were in place when he arrived, and that he did not see anyone carrying flagpoles around and putting them into the ground. The primary judge was also unimpressed by Mr McGrath as a witness. He found Mr McGrath: He gave two examples of that tendency that he had observed in Mr McGrath. One of those examples related to his evidence in chief that: Another example related to Mr McGrath's evidence in chief: When that evidence was explored in cross-examination, Mr McGrath accepted that on some occasions he told people who were doing more than the speed limit that they should not. His evidence in cross-examination on that topic included: Mr Watson submitted that these matters were "not a strong basis for a criticism" of Mr McGrath: (AWS [51]). I do not accept that that provides a basis for concluding that the judge's assessment of Mr McGrath was wrong. Sometimes, when a witness makes significant qualifications in cross-examination to evidence that he or she has given in chief, it is no more than a reflection of the witness being honest and the questioning in chief being imprecise or not exhaustive. At other times it provides cause for regarding the witness' evidence with suspicion. It is very much a matter of the impression of the trial judge which of those conclusions should be drawn concerning the evidence. The judge relied on other indicia to assist him in concluding that the flags were not present at the time of the accident. Three of these indicia provided different bases for concluding that it was at least a realistic possibility that there might not have been flags in the vicinity of the drop box at the time of the accident. The first of those is that one of the photographs, Exhibit 1D(2), showed a view looking across the irrigation channel from the accident site. The culvert outlet adjacent to the levee road on the other side of the irrigation channel is not marked by any orange flag. Mr McGrath accepted that there was no orange flag there. He accepted that that particular outlet should have been marked with a flag, and had no explanation as to why the flag was missing. Mr Watson endeavoured to minimise the significance of that evidence by pointing to some transcript, at 157-158, where the judge expressed some doubt about whether Mr McGrath's cross-examination on that topic was proceeding on a basis that drew incorrect inferences from the photographs. However, Ms Norton showed us a later passage of transcript, at 280-281, where the judge accepted that he had been wrong in that respect. The judge was entitled to rely in his judgment upon Mr McGrath's concession.

Medium Neutral Citation:	Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326
Hearing dates:	5 September 2012
Decision date:	10 October 2012
Before:	Allsop P at [1] Beazley JA at [2] Campbell JA at [3]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	EVIDENCE - witnesses - credibility - plaintiff employed by contractor on cotton farm - plaintiff driving vehicle on farm which collided with culvert and overturned - primary judge made a factual finding that the owner and operator of farm had breached its duty of care by failing to mark the culvert as a hazard - factual dispute as to presence of warning flags - appellant argued primary judge had been in error in preferring the evidence of witnesses who stated that there were no flags against evidence of other witnesses who said that flags were present - no error demonstrated - primary judge's reasoning based on demeanour in cross examination, objective indicia and expert evidence - appeal dismissed EVIDENCE - photographs - limitations on use of photographs in fact finding - photographs used to evaluate explanations given by various witnesses - permissible use
Cases Cited:	Blacktown City Council v Hocking [2008] NSWCA 144 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; 168 ALR 407 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098
Category:	Principal judgment
Parties:	Twynam Agricultural Group Pty Ltd (Appellant) Rodney John Williams (First Respondent) Inland Watering Pty Limited (Second Respondent)
Representation:	Counsel: GM Watson SC; CM Lee (Appellant) S Norton SC; PN Khandhar (First Respondent) Submitting Appearance (Second Respondent) Solicitors: Lee & Lyons Lawyers (Appellant) Stacks/The Law Firm, Taree (First Respondent) Moray & Agnew (Second Respondent)
File Number(s):	2009/297953
Decision under appeal	Citation: Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098 Date of Decision: 2011-09-30 00:00:00 Before: Hoeben J File Number(s): 2009/297953