Australia: Whose Evidence Should be Accepted?
Curwoods Case Note

Twynam Agricultural Group Pty Limited v Williams [2012] NSWCA 326

Judgment date: 10 October 2012

Jurisdiction: NSW Court of Appeal ¹

In Brief

• The court does not need to provide extensive reasons as to why one witness's evidence will be accepted in preference to the evidence of other(s), and the court can choose to accept only some parts of a witness's evidence.
• Legal representatives need to prepare witnesses properly before they give evidence. This extends to ensuring that the evidence is based on the witness's actual recollection of events rather than a reconstruction of what the witness believed occurred.

Background

The Plaintiff, Mr Rodney John Williams (Williams), was employed as a labourer by Inland Watering Pty Limited (Inland). Inland were engaged by Twynam Agricultural Group Pty Limited (Twynam), the appellant in the Appeal, to provide labourers to work on a cotton farm known as Collymongle Farm in Collarenebri which was occupied by Twynam.

Williams had worked at Collymongle Farm as a cotton picker in the mid 1990s for 2 seasons. At the time of his accident on 29 November 2006, Williams had been employed by Inland for approximately 8 weeks. During the course of his employment at Collymongle Farm, Williams was required to drive on dirt roads within the property. Williams was driving along a road which had a cotton farm field on one side and an irrigation channel on the other side. The road was not perfectly straight and Williams was driving along a stretch of road which was described as having a "reverse curve to the left and then right to be offset from its original alignment". The road also dipped slightly before a junction separating 2 cotton fields. A drop box, a concrete structure with vertical sides which allowed the flow of water out of the cotton fields, was located at the side of the road and sunk into an embankment and hidden from view.

There were at various locations throughout Collymongle Farm flags warning of dangerous areas such as the reverse curve and the drop box. The warning flags were described as being an orange canvass-like material which were attached to a wire spring which was pressed into the ground.

On 29 November 2006, Williams was driving along the road with 2 other workers in a vehicle when he collided into the drop box, sustaining injury.

A number of witnesses employed by both Twynam and Inland, together with experts qualified by Williams and Twynam, were called to give evidence. Williams gave evidence that as he was driving along the road there was a culvert in front of him and he had no time to brake. He gave evidence that there were no warning flags in and around the area of the reverse curve and drop box at the time of his accident.

Mr Shannon Farr, a friend of Williams and an employee of Inland, was called to give evidence. He attended the scene of Williams's accident upon receiving a UHF communication advising of the accident. Mr Farr gave evidence that he had driven along the section of road about one hour before Williams and had not noticed any orange warning flags at the time. When he attended after Williams's accident he did not observe any warning flags in and around the area. He was shown a number of photographs which were taken on the day of Williams's accident which showed there were 4 warning flags around the reverse curve and drop box. Mr Farr denied they had been in place based on his recollection.

Mr Bryan Goldsmith, the farm manager, and Mr Richard McGrath, the assistant manager, were both called to give evidence on behalf of Twynam. Mr Goldsmith and Mr McGrath both gave evidence that the warning flags were in situ when they arrived at the site shortly after Williams's accident. Mr Goldsmith denied replacing any of the flags after Williams's accident. Mr McGrath gave evidence that he did not carry any replacement warning flags in his truck, but this was found to be less than truthful in cross examination. Mr Goldsmith gave evidence that 4-6 times per year Twynam arranged for safety consultants to attend Collymongle Farm to perform a safety audit. None of the reports consequent to those safety audits, either pre-dating or post-dating Williams's accident, were tendered in the primary proceedings.

Supreme Court Decision

Williams brought proceedings in the Supreme Court of New South Wales alleging Twynam and Inland were negligent.

The primary judge, Hoeben J, found that the evidence of Mr Farr in respect of the absence of warning flags was to be preferred over the evidence given by Mr Goldsmith and Mr McGrath. He found that Mr Goldsmith and Mr McGrath both gave evidence which sought to exculpate or favour Twynam. The primary judge also found that Mr Goldsmith had a tendency to reconstruct what occurred on the day of Williams's accident rather than give evidence based on his recollection of what he saw or was told on that day. There were also inconsistencies between Mr Goldsmith's oral evidence given in August 2011 and a Statement prepared in September 2009. In cross-examination Mr McGrath accepted that a number of his initial responses to questions were not correct.

The primary judge found that there were no warning flags present at the time of Williams's accident and that there was a poor system of replacing flags on Collymongle Farm despite there being a tendency for flags to fade, become shredded or be dislodged from the ground. He accepted the evidence of Mr Stuart-Smith, an expert called by Williams, that based on the tyre marks evidenced in photographs one of the flags which was later shown to be in a photograph tendered in the matter would have been gouged out of the ground rather than spring back after Williams's vehicle passed over it. This was further indicia that the flags had been placed in the ground after Williams's accident.

The primary judge found that Twynam and Inland were both negligent. In determining liability, the primary judge apportioned 75% to Twynam and 25% to Inland.

The primary judge assessed Williams's damages at $969,145 pursuant to the Civil Liability Act (CLA) and $493,403 pursuant to the Workers Compensation Act (WCA).

Court of Appeal

Twynam appealed the findings of the primary judge. The primary basis of the appeal was that the primary judge had erred in finding that certain warning flags which were shown in the photographs taken soon after Williams's accident had not been in place at the time of Williams's accident. There was no dispute that warning flags were required and that the absence of any warning flags caused Williams's accident.

In the Court of Appeal, Campbell JA delivered the unanimous judgment of the court. Campbell JA noted the primary judge's findings that Williams was, on balance, a credible witness although there were some aspects of this evidence which were not accepted. He also found that the primary judge's comments in relation to the evidence of Mr Farr, Mr Goldsmith and Mr McGrath were supported by sufficient examples. In this regard, he noted that there "are limits to the extent to which it is possible for a judge to give reasons why one witness strikes him as creditworthy, and another does not". Campbell JA was guided by the decision of McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited ² where he stated:

Campbell JA found that the primary judge was entitled to draw conclusions based on his impression of the oral evidence of the witnesses. He also noted that the primary judge had relied on other indicia, including: photographs; expert evidence; evidence about the inadequate system of replacing the warning flags; and the absence of any safety reports, in finding that there were no warning flags in situ.

Campbell JA noted that the primary judge had been referred to the decision of Blacktown City Council v Hocking ³ in respect of the limitations in using photographs to make findings of fact. He noted that the use of photographs had not been the sole determinant of how the primary judge reached his conclusions.

Finally, Campbell JA found that the primary judge had not overlooked any relevant evidence in reaching his conclusions. Nor had he been in error in making his decision by his impressions of the witnesses. The conduct of the primary judge was not contrary to the principles set out in Fox v Percy ⁴ where it was held that a finding of fact would only be set aside where "incontrovertible facts or uncontested testimony demonstrate that the primary judge's conclusion are erroneous". There were no such errors in this matter and the Court of Appeal dismissed the Appeal with costs.

Implications

The case demonstrates that a primary judge does not need to provide extensive reasons as to why the evidence of one witness is to be preferred over that of another. The primary judge can also choose to accept parts of a witness's evidence. The failure to accept all of the witness's evidence does not mean that the witness is not credible.

The case also demonstrates how important it is to prepare witnesses properly before they give evidence. If it appears witnesses are reconstructing events or appear to be protecting the party for whom they are called rather than giving evidence based on their actual recollection, the court will give less weight to that evidence.

Footnotes

¹ Allsop P, Beazley and Campbell JJA

² (1987) 10 NSWLR 247 at 280

³ [2008] NSWCA 144

⁴ [2003] HCA 22

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.