Australia: Whose Evidence Should be Accepted?

Curwoods Case Note
Last Updated: 28 October 2012
Article by Emma Sheehan

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.


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:

"Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour'". Connell v Auckland City Council [1977] 1 NZLR 630 at 632-633 per Chilwell J..."

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.


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.


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.