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

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

The appeal failed because the Appellant did not demonstrate error in the primary judge's finding that the orange warning flags were absent at the time of the accident. The finding was supported by the primary judge's credibility assessment of Mr Farr, the weaknesses identified in the evidence of Mr Goldsmith and Mr McGrath, objective indicia concerning missing or poorly maintained flags, and expert evidence that a flag at the headwall would likely have been dislodged. There was no incontrovertible evidence requiring rejection of Mr Farr's evidence, and the primary judge did not fail to consider material evidence or impermissibly use photographs.

Jurisdiction
Australia
Judgment Date
10 October 2012
Procedural Posture
Negligence Personal Injury Appeal / Appeal From Williams V Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098; Primary Judge Found Negligence and Apportioned Damages Between the Appellant and Second Respondent
Outcome
Appeal dismissed with costs.
Legal Topics
['negligence' "occupier's Duty of Care" 'breach of Duty' 'witness Credibility' 'appellate Review of Factual Findings' 'photographic Evidence']
['torts' 'evidence' 'civil Procedure'] ['negligence' "occupier's Duty of Care" 'breach of Duty' 'witness Credibility' 'appellate Review of Factual Findings' 'photographic Evidence']

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Procedural Posture

Negligence Personal Injury Appeal / Appeal From Williams V Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098; Primary Judge Found Negligence and Apportioned Damages Between the Appellant and Second Respondent

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that orange warning flags were not present at the accident site at the time of the accident.' 'Whether the primary judge erred in preferring evidence from witnesses who said that no flags were present over evidence from witnesses who said that flags were present.' 'Whether the primary judge failed to consider relevant evidence or failed to answer necessary questions in assessing the presence of the flags.' 'Whether the primary judge permissibly used photographs as an aid in evaluating witness accounts.']

Ratio Decidendi

The appeal failed because the Appellant did not demonstrate error in the primary judge's finding that the orange warning flags were absent at the time of the accident. The finding was supported by the primary judge's credibility assessment of Mr Farr, the weaknesses identified in the evidence of Mr Goldsmith and Mr McGrath, objective indicia concerning missing or poorly maintained flags, and expert evidence that a flag at the headwall would likely have been dislodged. There was no incontrovertible evidence requiring rejection of Mr Farr's evidence, and the primary judge did not fail to consider material evidence or impermissibly use photographs.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']