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