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 1ALLSOP P: I agree with Campbell JA. 2BEAZLEY JA: I agree with Campbell JA. 3CAMPBELL JA: Nature of the Case 4The 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. 5The First Respondent, Mr Rodney Williams, was seriously injured on the property on 29 November 2006 when a motor vehicle that he was driving on an internal road in the property overturned. The accident occurred between midday and 2:00pm, in fine weather. 6At the time Mr Williams was employed by the Second Respondent, Inland Watering Pty Ltd ("Inland"). It supplied labour, including Mr Williams, to perform irrigation work on the property. 7Mr GM Watson SC appeared with Ms Lee for the Appellant. Ms S Norton SC appeared with Mr Khandhar for Mr Williams. Inland has filed an appearance in which it submits to any order of the Court save as to costs. It has taken no part in the argument concerning the appeal. 8It was admitted on the pleadings that the Appellant owed a duty of care to Mr Williams by virtue of being the occupier of the property. As well, the judge noted another source of the duty of care, in the Appellant conducting a business on the property that involved activities of and interactions between, employees of the Appellant and employees of contractors such as Inland. That duty on the Appellant arose in the manner described by Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31. There is no dispute on this appeal about the Appellant owing a duty of care. 9The primary judge found that Mr Williams' accident arose from the negligence of both the Appellant and Inland, and awarded damages against both of them: Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098. He apportioned the damages seventy-five percent to the Appellant, and twenty-five percent to Inland. 10An important element in the judge's finding of negligence was his finding that certain orange flags that were intended to provide a warning of a danger near the road, and that could be seen in some photographs taken soon after the accident, had not been in position at the time of the accident. The central issue on the appeal is whether the judge was in error in making that finding. There is no dispute that reasonable care required, at the least, the presence of such a warning flag. There is no dispute that, if the flags were absent, their absence caused Mr Williams' injuries. There is no dispute concerning quantum of damages, if the primary judge's finding of liability was correct. 11I have concluded that the judge's finding concerning the flags has not been shown to be erroneous. The Accident Site 12The road on which Mr Williams was driving at the time of the accident ran in an approximate west to east direction. As Mr Williams travelled along it in an easterly direction he had cotton fields on his right hand side immediately adjacent to the road, and an irrigation channel on his left hand side. The first cotton field that he passed was known as field 120. It was separated from the next field, field 121, by a levee bank, on top of which a road was located. That road was referred to as the "separation road". 13The accident occurred quite close to the spot where the separation road formed a junction with the road along which Mr Williams was driving. Subject to one qualification, the junction was T-shaped. The road on which Mr Williams was driving was "... located on the top of a built up levee bank and had a carriageway width of about 5 metres. The top of the bank was about 1.5 metres above the level of the surrounding topography approaching the junction and was about 1.2 metres above the ground level beyond the junction. The embankments on the sides of the levee were graded at about one vertical to 2 horizontal." 14The primary judge found: "In an easterly direction, as travelled by the plaintiff, the road was generally straight and level for about 5 km until it passed field 120. The road continued straight and level for another kilometre until it reached field 121. At the junction with the separation road, the road passed through a reverse curve to the left and then right to be offset from its original alignment by about 5 metres as it passed field 121. The road also dipped slightly just before the junction." It is that reverse curve at the junction which provides the qualification to the junction being T-shaped. 15To assist in the flow of water between an irrigation channel and a cotton field, culverts connecting the channel with the field were constructed under the road at intervals. The inlets to these culverts on the cotton field side were structures that were rectangular in plan, and were known as "drop boxes". Mr Bryan Goldsmith, the Farm Manager of Collymongle Farms, gave evidence that a drop box provides "the exit of the water out of the field". Drop boxes were constructed of concrete, and had vertical sides. Such a drop box was located immediately after the junction of the connecting road and the road along which Mr Williams was travelling. It was located at the side of the road, sunk into the embankment. It enabled water to get out of field 121, at the corner formed by the connecting road and the road along which Mr Williams was travelling. Because the road along which Mr Williams was travelling swerved to the left at the connecting road, the drop box lay in the path of his vehicle. Mr Goldsmith said that, "in a long view it wouldn't have protruded above the ground". 16The drop box was constructed so that its highest wall, sometimes referred to as the headwall, ran roughly parallel to the road along which Mr Williams was travelling. As originally constructed, its sidewalls sloped down at about 45o from the headwall. The judge found that the top sections of the sidewalls of the drop box at the site of the accident had been broken. He found that that did not occur in the accident, but as the result of an earlier collision or collisions between a piece of plant and the drop box. 17A concrete structure somewhat similar to, although larger than, a drop box was constructed at the irrigation channel end of the culvert to allow water drained from the field egress to the channel. 18Mr Williams had worked at Collymongle Farm in the mid-1990s for two seasons as a cotton picker. It was not suggested that he had acquired, on those occasions, any knowledge about the configuration of the roads and drop box that were involved in his later accident. He had obtained employment with Inland about eight weeks before the accident. The judge found, and it is not disputed, that Mr Williams was not familiar with the internal road system at Collymongle, and in particular was not familiar with the junction where the accident occurred: [31]. Furthermore, the judge found that "the deviation to the left at this junction was a somewhat unusual one and that there was nothing similar to it at Collymongle": [34]. The Judge's Finding on Breach of Duty 19Two elements of the topography are relevant to how the accident happened. They are the curve to the left and then to the right in the road along which Mr Williams was driving, and the slight dip in the road just before its junction with the connecting road. The accident occurred when the rear right wheel of Mr Williams' vehicle came in contact with the drop box, which caused the vehicle to overturn. Mr Williams' account of the accident, that the judge largely accepted, was: "... I was watching where I was going to a certain extent, having a quick glance out the side, and you come over the top of a levy thing, a little rise in the road, and there was a culvert straight in front of me. Before I even knew it I couldn't do anything about it at the last minute, no chance to dodge it or nothing, couldn't brake." 20The judge accepted that Mr Williams was a witness deserving of credit who was doing the best he could to assist the court, but that his evidence about not braking was incorrect. The judge rejected that element of Mr Williams' evidence because skid marks were shown in the photographs, and two experts who were called both agreed that those skid marks had been made by Mr Williams' vehicle. 21It is appropriate at this stage to identify various people all of whom came to be at the scene of Mr Williams' accident fairly soon after it happened. Mr Goldsmith, previously mentioned, was one. Mr Adam Kent was an agronomist, who assisted Mr Goldsmith. Mr Richard McGrath was the Assistant Manager of the property. Mr David Walker was a foreman in charge of the employees of Inland who worked at the property. Mr Shannon Farr was an employee of Inland, who had been instrumental in Mr Williams obtaining his job at the property. Mr Brian Milstead was another man who worked for the Appellant. 22As well, Mr Williams had as passengers in his vehicle at the time of the accident two workers who were sometimes referred to as backpackers. It appears that they spoke little or no English. They were not injured in the accident. Mr Farr had another backpacker in his vehicle. 23Mr Goldsmith received a message on a two-way radio that the accident had occurred, and drove to the site. He said that the drive took him "probably five minutes at the most". Mr Goldsmith's evidence was that he was at the scene of the accident for "less than an hour by the time the ambulance had turned up and everybody had left." Mr Kent drove there in a separate vehicle, and arrived soon after Mr Goldsmith arrived. Mr McGrath arrived around that time as well. Mr Goldsmith was "pretty sure Richard was there when I got there". Mr McGrath was of the view that Mr Goldsmith had arrived first. The judge did not find it necessary to resolve which of them had arrived first. Mr Farr received a call on the UHF from Mr Williams, in which Mr Williams said he had hurt himself, and Mr Farr drove about five kilometres to go to his aid. Mr Farr stayed there "probably about five minutes to see if Rodney was right, and there was that many people there I just went and done my job." He left when "the ambulance was on his way". Mr Williams remained in the vehicle he had been driving for the entire time from when the accident occurred until he was released from the vehicle by ambulance workers. 24Of the people who were at the accident site soon after the accident, there was evidence from the plaintiff, Mr Goldsmith, Mr Farr, and Mr McGrath. There was no evidence from Mr Kent, Mr Milstead, Mr Walker or any of the three backpackers. 25The practice on Collymongle Farm was for potentially hazardous sites to be marked by pennant flags. Mr Farr, who the judge found to be impressive and completely honest, described those flags as being made of a canvas-like material, orange-coloured, and attached to "a wire spring" that "goes into the ground probably about 3 foot and what's sticking out of the ground probably 4 foot". Mr Goldsmith gave evidence that "we just pushed them into the ground, normally a good foot". The judge did not specifically resolve that conflict in the evidence. 26A total of ten different photographs that were taken at the scene of the accident, on the day of the accident, were in evidence. Between them, the photographs show four orange flags. Two flags are on the lip of the embankment at the junction between field 120 and the connecting road. A single flag is immediately adjacent to the headwall of the drop box with which Mr Williams collided. The fourth is on the other side of the road along which Mr Williams was driving, roughly opposite the drop box in question, where the culvert outlet on the irrigation channel side of the road would be. An important part, but by no means the only part, of the judge's conclusion that the Appellant had breached its duty of care was his finding that those four orange flags, as depicted in the photographs, were not present at the time of the accident. He concluded that there were no orange flags at the accident site: [85]. Mr Farr's Evidence 27Mr Farr gave evidence in chief that when he got to the scene of the accident there were no flags, and when he left the scene there were no flags. 28In part of his evidence in chief, Mr Farr was shown Exhibit B, the photograph which depicts most clearly the drop box in question, with a flag planted immediately adjacent to its headwall. His evidence was: "Q. Was that there when you arrived? A. No. Because I was standing there where that flag was. Q. Well, what were you looking at? A. I was looking at his wheel tracks, mate, where he hit the concrete culvert." 29Mr Farr gave evidence that some photographs were taken while he was at the site, but the evidence did not identify which photographs were taken during that time. Some of the photographs in evidence depict areas other than those that are shown, in other photographs, as having flags planted in them. Thus there is no inconsistency between Mr Farr's evidence that he saw photographs being taken, and his evidence that no flags were present. 30In cross-examination, having examined all the photographs, he said that the vehicle in which he drove to and from the accident was not depicted in them. It is not suggested that there is any photograph that depicts both Mr Farr, and a flag. Thus, no photograph demonstrates the incorrectness of Mr Farr's evidence that no flags were present when he was at the site. 31Mr Farr's evidence in cross-examination included: "Q. Sir, you had driven along this road before, hadn't you? A. I have, yeah. Q. And you had driven along that road a week previously, is that right? A. I drove along that road five, 10, probably an hour before Rodney drove along that road, mate. ... Q. ... One hour before the accident you drove along the road which you understand Mr Williams was driving on when he had his crash. Isn't that right? A. Yeah. Q. Is that right? A. That's right, yeah. Q. As you drove along that straight road you passed orange flags on the left and the right, didn't you? A. No, I did not. Q. Are you saying there were no orange flags? A. Yes, I am." 32He identified with precision, on a map, the route along which he had driven an hour before Mr Williams' accident. Thus, according to him, he had observed no flags at the site of the accident about an hour before the accident happened, and no flags there soon after the accident. 33Mr Farr also said, in cross-examination: "Q. Sir, whether it was the morning of the accident or whether it was the day before, you did not need yourself orange pennants in order to get safely through that place, did you? A. No, because there was-- Q. I beg your pardon? A. Because there was flags there before and then they were missing, you know what I mean. You know? There's been flags prior to the years and then this particular day there was no flags left. Maybe because the wind blew them away. You know what I mean? Q. Have you ever had a close look at the way those flags are fixed into the dirt at that culvert? A. Yes. Q. And what is your observation? A. It's a bit flat. A bit of nylon plastic, or not plastic, but canvas, the actual orange bit and it's a wire spring and it goes into the ground probably about 3 foot and what's sticking out of the ground probably 4 foot. Q. And so you would understand by your last answer that a flag fixed in that way was unlikely to be blown away by the wind; correct? A. Well they do perish and blow off. Q. You mean the pennant itself? A. That's right, yeah." 34His evidence included: "Q. And when you arrived there at the scene on that day did you keep an eye out for the flags or the pennant - I will use the pennants, right, the orange part - did you keep an eye out for them as you travelled towards the intersection where you had heard the plaintiff had had a crash? A. Did I keep an eye out? Yeah. There was no flags there. Q. You didn't need them? A. I didn't need them, no. Q. No? A. But it's not my job to put flags out mate because I'm only a contractor. It's Twynam's place to put flags out. It's their farm. Q. And sir when you arrived did you notice that there were less flags at that intersection than you had seen before or no flags? A. There was no flags there, mate." 35Later in his cross-examination he repeated, on several occasions, that there were no flags at the scene of the accident on the day of the accident, during the time he was there. 36The primary judge set out this evidence from Mr Farr, and more to similar effect. He found, at [75]: "I found Mr Farr to be an impressive witness and completely honest. He had no motivation for telling anything other than the truth. While he was a friend of the plaintiff, it was clear that they were not close. There was a robust commonsense about many of Mr Farr's answers which persuaded me that his evidence was also reliable. If I were basing my decision solely upon the demeanour of witnesses, I would accept the evidence of Mr Farr in preference to that of Messrs Goldsmith and McGrath." Mr Williams' Evidence About Flags 37Mr Williams had also given evidence that none of the four flags shown in the photographs was present at the time of the accident. The judge referred to that evidence, at [38], but did not say explicitly that he relied upon it. There were matters that would cast doubt on the reliability of Mr Williams' recollection concerning events immediately after the accident. For example, he could not recollect talking to Mr Goldsmith, but Mr Goldsmith's evidence, confirmed by the photographs, is that there was such a conversation. As well, Mr Williams was in a lot of pain after the accident. Further, even concerning the period before the accident the judge had found that Mr Williams had applied his brakes, notwithstanding Mr Williams' evidence to the contrary. His Honour's apparent failure to regard as sufficient Mr Williams' evidence concerning the absence of flags is, in these circumstances, unremarkable. Mr Goldsmith's Evidence 38At the trial there was an issue about whether the accident arose from Mr Williams' contributory negligence. The contention was that he had failed to keep a proper look out, had driven too fast, and was not wearing a seatbelt. The primary judge declined to find that Mr Williams' injuries had been caused by any contributory negligence on his part. An appeal from that aspect of his Honour's finding was not pressed. However, some aspects of the evidence given concerning contributory negligence had a role to play in the primary judge's evaluation of Mr Goldsmith's evidence concerning the presence of flags. 39On the day of the accident Mr Goldsmith completed a Workplace Incident Report which described the accident in the following terms: "A contractor was driving from along the side of a cotton field when he failed to negotiate a slight bend in the road hitting a drop box and rolling the vehicle. The driver had been distracted looking at the cotton in the field and was not looking where he was going. The driver has stated that the speed of the vehicle was around 60 kph. ... The drop box and channels were all marked with safety flags." 40There was some cross-examination of Mr Goldsmith concerning what Mr Williams had told him when Mr Goldsmith came to the scene of the accident, about the circumstances in which the accident had occurred. Mr Goldsmith had made a statement relating to that conversation in September 2009. He was cross-examined about what the cross-examiner suggested to be discrepancies between that statement, and his evidence in the witness box concerning his conversation with Mr Williams. The judge said, concerning that: "I have concluded that Mr Goldsmith's evidence concerning the conversation is unreliable, except where it accords with the Workplace Incident Report, exhibit 1D(12) and with the plaintiff's evidence. It is clear from Mr Goldsmith's answers under cross-examination that he has a tendency to reconstruct matters rather than be accurate as to exactly what he was told. By way of illustration, it is clear that Mr Goldsmith concluded from his examination of the photographic evidence that the vehicle had skidded before overturning. That conclusion was converted into evidence that the plaintiff told him following the accident that the vehicle had skidded. It is also likely that having been told by the plaintiff that he was looking at the cotton fields, Mr Goldsmith concluded that the plaintiff had been distracted and was not looking where he was going as is set out in the Workplace Incident Report. By the time Mr Goldsmith made his 2009 statement, this conclusion had been converted into evidence that the plaintiff said that he had become distracted and was not looking where he was going. I accept that the plaintiff may well have told Mr Goldsmith that as he was driving he was looking at the cotton fields. This is in accord with his recollection and his evidence at trial. It is inherently unlikely that he would have gone on to say that he was distracted and was not looking where he was going. Because of the clear tendency on the part of Mr Goldsmith to reconstruct matters, rather than rely upon his actual recollection, it may be that these discrepancies in his recollection of what the plaintiff told him were not deliberate. What clearly emerged under cross-examination, however, is that at the time of trial, Mr Goldsmith had little, if any, actual recollection of what he was told by the plaintiff." 41In Mr Goldsmith's examination in chief he stated that he himself did not place any of the four flags that were near the scene of the accident, and did not see anyone else place the flags there. In cross-examination he gave evidence that "the flags were there when I got there and I did not replace any flags anywhere at that site." He rejected a suggestion that he either replaced the flags himself, or saw that the flags were replaced. 42The judge commented at [67], concerning Mr Goldsmith, that one part of his evidence was unreliable (evidently his evidence concerning the conversation with Mr Williams in the car). The judge then observed: "Generally speaking, I found him to be somewhat partisan in giving his evidence and to be protective of Twynam." 43He gave an example of this. In the Incident Report the location of the accident was described as "a slight bend in the road". The judge observed: "That is certainly not how I would described the deviation at the junction, but it is indicative of his tendency to minimise any culpability on the part of Twynam." 44Mr Watson was critical of this basis for rejecting Mr Goldsmith's evidence. He referred to some evidence in which Mr Farr had said that one would be able to negotiate that bend "by veering slightly to the left". Apart from anything else, veering slightly to the left is indicative of the extent to which one must turn the steering wheel, which is not necessarily the same as the extent to which the road itself bends. 45As well, the judge had observed, at [66], that "Mr Goldsmith's evidence about the taking of the photographs at trial was slightly different to the statement which he made in 2009." The difference related to the order in which he and Mr Kent had acted as the photographer on that day. In the 2009 statement he said: "23 ... I did an assessment of the area and took some photographs and handed the camera to one of my employees who took the rest of the photographs." At trial Mr Goldsmith said: "Q. Did you yourself take any photos? A. I think I've taken the last couple of photos. Certainly there is one photo with Richard's vehicle disappearing into the distance, I'm pretty sure I took that. But effectively the bulk of the photos would have been taken by Adam." (T.94.38)" 46Mr Watson submitted that these matters provide "a most tenuous basis" for the primary judge's finding of unreliability. I do not accept that that provides a reason for rejecting the conclusion at which the primary judge arrived concerning Mr Goldsmith's reliability. 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. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, McHugh JA said: "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. The position will usually be different if other evidence and probabilities are involved." 47Similarly, 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 addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were 'utterly implausible'. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence." 48In 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's Evidence 49Mr 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. 50The primary judge was also unimpressed by Mr McGrath as a witness. He found Mr McGrath: "... to be protective of Twynam in his evidence. He had a tendency to agree to broad propositions which he believed favoured Twynam, but under cross-examination would significantly resile from them." 51He gave two examples of that tendency that he had observed in Mr McGrath. One of those examples related to his evidence in chief that: "Q. Did you have any flag poles with you in your truck? A. No, not that I can recall. (T.144.8)" On exploration of that topic in cross-examination, Mr McGrath accepted that a lot of the time he would have flags in his vehicle to enable him to replace ones that were missing or damaged, and that he probably had flags with him on the occasion in question. 52Another example related to Mr McGrath's evidence in chief: Q. Were you, before the plaintiff's accident, aware of person on the Collymongle Station exceeding the speed limit? A. Not that I am aware of. (T.147.27)" 53When 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: "Q. So are we back to you have never seen anyone doing more than 60 kilometres an hour on the property? A. Well, I would probably have to rephrase that and say yes, there's probably people who have been going more than 60, yes, yes. Q. When you have seen that, would it be sometimes they were doing a lot more than 60? A. Well, I would say yes, yes. Q. When Mr Gracie asked you whether you had ever seen anyone speeding, why didn't you tell him that then? A. Well, I just didn't - well, I didn't - just didn't realise - I suppose, yeah, I just forgot my train of thought, I suppose, on the speeding." (T.150.4) 54Mr 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. Other Indicia of Absence of Flags 55The 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. First Reason Why Possible No Flags Present - Nearby Example of Absent Flag 56The 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. 57Mr 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. Second Reason Why Possible No Flag Present - Poor System for Replacement 58The other matter upon which the judge relied in this respect was what he called the "ad hoc nature of the system of replacing flags". He found: "... flags were regularly dislodged by the movement of vehicles and machinery on internal roads. It is also clear from the evidence that after two or three months, the flags became so faded that they had to be replaced or they became shredded by the wind so that only the metal rod remained. There was no systematic method for replacing such missing or damaged flags. It depended entirely upon someone noticing and reporting that either a flag was missing or damaged, and then for someone to respond to that report by arranging for the flag to be replaced. To the extent that there was any systematic attempt to check on flags being correctly positioned and in good condition, this occurred no more frequently than every three months, and only when there was someone available to perform the activity. In those circumstances, it is not surprising that dangerous locations at Collymongle remained unmarked for considerable periods of time. 59Related to this topic, his Honour also said: "Another cause for concern on that same issue was the reference by Mr Goldsmith to the outside consultants who attended between four and six times a year and who performed an external safety audit for Twynam. No report from those consultants was provided to the Court for any year and particularly the year 2006. The reports predating the accident and post dating the accident from such consultants would have been of importance. No explanation was forthcoming for the absence of those reports. I have concluded that the contents of those reports, had they been provided, would not have assisted Twynam's case." 60Mr Watson submitted that there was a measure of unfairness in the judge drawing this inference. He pointed to the circumstances in which Mr Goldsmith had given evidence about the outside consultants. It arose from evidence that Mr Goldsmith gave in chief, on 9 August 2011: "Q. Did you have in place from 1993 onwards a system of replacing the flags and metal posts from time to time? A. Yes. Q. Did you use consultants involved in that process? A. We had outside consultants between four and six times a year come through the farm, come through the whole property to do an outside safety audit effectively, which was our way, the company's way of ensuring that the properties were maintaining an OH&S standard that was reasonable and not falling into people believing that they were doing the right thing when possibly they weren't. So the outside consultant's job was to come through and give a report denoting anything that they felt was substandard. Q. And to your knowledge did you and the company you work for act upon those recommendations? A. Yes. Q. As and when they were made? A. Yes. HIS HONOUR: Before we leave that topic again may I interrupt briefly? Q. Mr Goldsmith, you said you had a system of replacing the flags. What was that system? A. Effectively we would always have flags in stock in the warehouse. We used to, rainy day jobs for staff was to sit there and make them so we would always have a stock of them. And effectively, the majority of the problem with the majority of them is they fade so every, you know, couple of months when you had somebody free you would say take some safety flags, lap around the farm and replace anything that has faded or missing or frayed. Q. What would happen if a wide piece of farm machinery dislodged a flag? What was the system to A, identify that that had happened and B, replace it? A. Effectively the operators were always told if they took a flag out that they were to stop and replace it. If anybody was driving around and they saw that a flag had been pulled out they would stop and replace it. So the likes of myself or Richard, if they were driving around and we saw that something had been dislodged and effectively it was then either, if, if it was not, not noticed for some reason it would have been picked up in the replacement programme. Q. Apart from what you have told me was there any system in place whereby somebody would regularly go around and check that all the flags were in position? A. Only, not a, not a paper audit or anything. Only the, the farm staff lapping around the farm in the course of their duties would say there's flags missing there or, geez, there is no flag left on that drop box, and send somebody out to put them back in." 61Mr Goldsmith was cross-examined on that topic later the same hearing day: "Q. You were asked something about safety audits from time to time by Mr Gracie. Remember that? A. Yes. Q. Have you brought them along? A. I'm sorry? Q. Have you brought anybody along? A. I didn't bring anybody, anything. I brought myself. Q. So the position is you know there are safety audits from time to time, correct? A. Yes. Q. And your understanding is that the company tries to comply with recommendations in the safety audits, correct? A. Mm-hm Q. Is that right? A. Yes. Q. But that is the entire amount of evidence you can give on that topic, is that right? A. I didn't realise I was required to bring them. Q. I'm not being critical? A. That is all I can tell you at this point in time." 62Even though the trial ran until 12 August 2011, and Mr Lidden SC, counsel for Mr Williams at the trial, relied upon the absence of the safety assessments in his closing submissions, the assessments were not produced on the 10th, the 11th or the 12th. 63I would accept that the nature of the cross-examination concerning the safety audits did not make a big issue of their non-production. Nor did it challenge Mr Goldsmith's evidence that the Appellant had acted upon the recommendations. The cross-examiner stated that he was not being critical of Mr Goldsmith for having not brought the assessments with him on the day he gave evidence. However, he said nothing about whether they should be tendered later. That left the evidence in a situation where Mr Goldsmith was asserting that there were regular safety audits, that had some imprecisely defined connection with a system for replacing the flags and metal posts from time to time, and that the Appellant complied with the recommendations (whatever they might have been), but the Appellant did not seek to remove the haze of imprecision in that evidence by production of the reports. The inference that the judge drew from their absence, that they would not have helped the Appellant's case, is a modest one. His Honour did not draw the stronger inference that can sometimes be drawn as a result from the absence of evidence that it is within a party's power to produce, namely that an inference otherwise available should be drawn more strongly. I see no error in his Honour's reasoning in this respect. Third Reason Why Possible No Flag Present - Likelihood That Any Flag Present Would Be Gouged Out 64The judge accepted an opinion given by Mr Stuart-Smith, an expert called by Mr Williams, that arose from his consideration of one of the photographs with which he was supplied. Mr Stuart-Smith's view was that if a tyre mark leading to the top of the headwall had been made by Mr Williams' utility (as Mr Stuart-Smith thought likely), any flag at the head of the drop box would most likely have been knocked over by the front of the utility as it passed over the drop box. Mr Stuart-Smith gave oral evidence that he thought it was more likely that the flag would have been gouged out, rather than to have sprung back after the utility passed over it. The judge preferred Mr Stuart-Smith's opinion on that issue to that of Professor Yandell, that the flag would probably have sprung back up again. The judge reached that conclusion bearing in mind the broken nature of the earth in which the flag is positioned in the photograph. 65The finding that, if there was a flag, it was dislodged, has the consequence that a person would have had to return the flag to its original position before the photographs were taken. On the Appellant's case, the orange flags were in place when Mr Goldsmith and Mr McGrath each arrived, and no-one put flags in place after the collision. That could not be the case if there had been a flag at the headwall, but it had been gouged out. 66The judge had been reminded in submissions about the limitations on the use of photographs in fact finding, as discussed in Blacktown City Council v Hocking [2008] NSWCA 144 (see particularly at [7]-[13], [167]-[173], [240]). Mr Watson did not submit that this use of photographs was inherently impermissible. Indeed, his Honour was not using the photograph as a sole source from which a primary fact is to be inferred. Rather, he was using it as an aid in determining which of the accounts given by witnesses (Mr Farr, or Mr Goldsmith and Mr McGrath) was to be preferred. 67Mr Watson submitted that the decision below involved errors of the type identified in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130]. There, Hayne J (with whom McHugh and Gummow JJ agreed) referred to a trial judge's obligation "to examine all of the material relevant to the particular issue". 68Mr Watson submits that there was some evidence that the judge did not take into account in accepting Mr Stuart-Smith's opinion that it was more likely that the flag would have been gouged out. There was evidence from Mr Goldsmith that when machinery used on the property that was thirteen metres wide came in contact with a flag "the steel spring is good enough to allow something to knock it. If something knocks it it will stay in place and stay upright." Another passage of evidence from Mr Goldsmith was: "Q. Well, from time to time they become dislodged; correct? A. Yes, occasionally. Q. Because they are just a small cross-section of metal stuck in the earth, aren't they? A. Yes. Q. There's nothing that retains them firmly there; correct? A. It's high vertisol clay so it sets. So if you stick it in there and the steel actually starts to rust, they are actually fairly had to pull out. Q. But you know they are dislodged from time to time, including being dislodged by the equipment, don't you? A. Yes." 69Another was evidence of Mr McGrath that the steel rods are flexible, and when hit by a wide piece of machinery will spring back up again. 70However, Mr McGrath's evidence was not that the flags always survived contact with a vehicle. He accepted that: "If you have a number of them around in one particular spot, chances are if a machine goes over maybe one will be dislodged but more will remain, correct?" 71I do not accept that the judge overlooked the substance of that evidence. It provides the basis for a question that the primary judge asked Mr Stuart-Smith, in a passage that he records at [79] of the judgment: "HIS HONOUR: If you assume that the evidence is that the flag is on a flexible steel rod about a foot into the earth, 30 centimetres into the earth and it is designed and apparently has this effect, if it is bumped or knocked it springs back. Would that be an explanation for the flag remaining in situ? STUART-SMITH: It could be an explanation, your Honour. I would have thought it more likely, since the wheel appears to have gone roughly where the flag is, that it would still have gouged the flag. I would have thought it unlikely it would have sprung back but it is a little bit hard to tell with the photographs we have exactly where the wheel was, but I think it is unlikely to have come back." 72It is in the very next paragraph of the judgment that the judge's expresses the view that Mr Stuart-Smith's opinion is to be preferred to that of Professor Yandell. Failure to Answer Relevant Questions? 73Mr Watson submits that there is another way in which the judge failed to comply with Fitzgibbon: "If the primary judge is right, someone must have put the flags in place during the period Mr Goldsmith was at the scene. If it was Mr Goldsmith, then this was most serious misconduct, and he committed perjury. If it was Mr McGrath, he committed most serious misconduct, and he also committed perjury. Or perhaps Mr Goldsmith and Mr McGrath committed perjury together. Otherwise, whoever planted the flags was able to do it without it being seen by Mr Goldsmith, Mr McGrath, Mr Farr and Mr Williams. Does this mean it was done by stealth? And what was the motive for doing so?" He submits that the primary judge "had to address and resolve these issues", if he was to comply with the duty identified in Fitzgibbon. 74I do not accept that submission. The issue that the judge had to decide was whether the flags were in place at the time the accident occurred. He decided that issue by preferring the evidence of Mr Farr to that of Mr Goldsmith and Mr McGrath, supported by the other indicia that he identified. If there was some material item of evidence that the judge overlooked, in the course of addressing whether the flags were in place at the time the accident occurred, there might have been a breach of the duty identified in Fitzgibbon. However, performance of that duty does not require the judge to answer questions of the type that Mr Watson poses. Conclusions 75The decision of the primary judge was one that was influenced to a significant extent by his impressions of the witnesses. It should be overturned if this court is persuaded that, bearing in mind the advantages that a trial judge has, the finding was erroneous. The passages in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[31] set out the relevant principles. They have been cited so often that I will not repeat them here. Mr Farr's evidence about the absence of flags both before and after the accident was clear. Furthermore, his evidence of having stood at the very spot where the flag was shown in a photograph and found no flag there ([28] above) has a degree of precision that none of the other observation evidence has. 76There is no incontrovertible evidence that shows that Mr Farr's evidence should not have been accepted. While there is no doubt that the ten photographs that were in evidence were taken on the day of the accident, there is no evidence about the time at which they were taken. Apart from it being likely that a photograph that shows Mr McGrath's vehicle driving off was the last photograph taken, it is not established, and not open to inference, in what order they were taken. It is likely that flags were available at the site of the accident, as Mr McGrath usually carried them in his vehicle. If it had been the case that the accident had occurred at a site where flags needed replacing, it would not be in the least unusual for any of the employees of the Appellant to replace the flags, rather than leave the site in a condition where it might be a danger to someone else. It was in accordance with the usual procedures, as explained by Mr Goldsmith, that "if anybody was driving around and they saw that a flag had been pulled out they would stop and replace it". There were people at the accident site who might have planted them, and from whom no evidence has been heard. They include Mr Kent, Mr Milstead, and Mr Walker, as well as the backpackers. There was only a partial explanation for the absence of Mr Kent, in that Mr Goldsmith said that he no longer works for Twynam and is "somewhere around Bundaberg but I don't know where". Likewise, there is only a partial explanation for the absence of Mr Milstead, in that he no longer works for the Appellant. As well, the evidence does not exhaustively identify everyone who was at the scene in the period after the accident. At the hearing of the appeal the following exchange occurred: "CAMPBELL JA: In the photograph that's at 369, right at the extreme right-hand edge, there's a man who's wearing a shirt that's got a blue background and some white patterns on it who doesn't seem to be in any of the other photos. Do we know who he is? WATSON: It's so frustrating, your Honour; nobody asked who that was. You'll see him right on the right-hand edge." (T 17) Mr McGrath accepted that that man was not Mr Goldsmith, Mr McGrath, or the backpackers, but he was not otherwise identified. 77In all these circumstances, I am not persuaded that the judge's finding about the absence of flags was incorrect. 78The primary judge did not base his conclusion of negligence solely on the absence of the flags. As well, he found that installation of a uni-directional hazard indicator, of a type described by Mr Stuart-Smith, was a reasonable precaution that should have been taken. He did not accept that the need to move very large items of machinery around the farm would make the installation of such a sign impracticable. In circumstances where it is not shown that his Honour's finding that the flags were absent is erroneous, it is unnecessary to consider this further basis upon which the primary judge held that negligence was made out. 79I propose that the appeal be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2012