In Issue

  • Whether the trial judge erred in adopting the reasoning of expert opinions which were inconsistent with other findings

The Background

CGU insured a 323 hectare crop of red lentils grown by T&T on a property near Forbes in New South Wales. The policy insured against the loss of potential yield of seed from that crop due to the “impact of hailstones upon plant parts”. T&T made a claim on the policy on the basis that the whole of the crop was flattened and unharvestable due to a hailstorm which occurred on 19 December 2010. That claim was rejected by CGU.

The Decision at Trial

The trial judge, in finding for CGU, accepted CGU’s expert evidence that the loss was caused in large part by heavy rain. The trial judge found that there was hailstone impact on the lentil crop on 19 December 2010 and that a loss of 20% of the potential yield was caused by that impact. It was common ground that there was a 100% loss of the crop by 27 December and the court found that what was left of the crop after the hailstorm was “finished off by the resulting rain”.

This was despite the acceptance of the evidence of Mr Hughes, who was contracted to harvest the crop, that when he inspected the crop on 17 December it was in “good condition” and when he next visited the crop on about 20 December, he described it as having been “flattened”.

The trial judge also accepted independent witness evidence that there was a heavy hailstorm over the crop, whereas one of CGU’s expert reports, also accepted by the trial judge, proceeded on the basis that there was only light hail.

The Issues on Appeal

The significant issue raised by the appeal was whether the trial judge’s reliance on the opinions of CGU’s expert witnesses in justifying her Honour’s conclusion as to the percentage loss of yield, involved error because the factual assumptions and reasoning were inconsistent with other findings and conclusions of the trial judge.

The Decision on Appeal

The Court of Appeal found that the trial judge erred in adopting the reasoning of CGU’s experts as to the percentage loss of yield, and in making assumptions about the likely causes of the loss which were inconsistent with other evidence which her Honour accepted; namely that there was a heavy hailstorm, that immediately before the hailstorm the crop was in good condition and immediately after the hailstorm the crop was flattened. These findings were only consistent with the cause of the loss being the hailstorm.


While the weight to be afforded to expert evidence is a matter for the trial judge, an appeal may succeed where the reasoning of the expert evidence relied upon by the trial judge is inconsistent with other findings of fact made by the court.

T&T Investments Australia Pty Limited v CGU Insurance Limited [2016] NSWCA 227

Nathan Buck