Lindsay v Neil Earthmoving Pty Ltd

[2019] NSWDC 612

District Court

New South Wales

Medium Neutral Citation:	Lindsay v Neil Earthmoving Pty Ltd [2019] NSWDC 612
Hearing dates:	14 and 15 October 2019
Date of orders:	01 November 2019
Decision date:	01 November 2019
Jurisdiction:	Civil
Before:	Smith SC, DCJ
Decision:	1. Verdict for the plaintiffs 2. Judgment for the plaintiffs in the sum of $108,602.28
Catchwords:	TORTS – Negligence – motor vehicle accident – access track through property – road train – tractor and plough cultivating – dust clouds – contributory negligence of parties
Legislation Cited:	Civil Liability Act 2002,ss 5B, 5C and 5R
Cases Cited:	Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320; 91 NSWLR 752 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Category:	Principal judgment
Parties:	John Robert Lindsay & Leonard Bruce Lindsay as joint executors & trustees of the estate of the late Robert Arthur Lindsay, First Plaintiffs Pauline Joy Lindsay, Second Plaintiff Leonard Bruce Lindsay, Third Plaintiff John Robert Lindsay, Fourth Plaintiff   Neil Earthmoving Pty Ltd – First Defendant Dale Thomas Collins – Second Defendant
Representation:	Counsel: Mr P Regattieri – Plaintiffs Mr G Carolan - Defendants   Solicitors: Duffy Elliott Lawyers - Plaintiffs Chamberlains Law Firm – Defendants
File Number(s):	2017/275347
Publication restriction:	Nil

Judgment

Introduction

1. On 7 April 2017 Troy Lindsay was cultivating a paddock on land at Tottenham, approximately 140 kilometres due west of Dubbo. At the same time, Dale Collins was transporting gravel in a truck along a road on the eastern border of the same paddock. The ground was dry and a breeze carried dust from the cultivation work which obstructed the vision of both Collins and Lindsay. As Lindsay approached the roadway he turned his tractor in order to continue the cultivation but was struck by Collins’ truck. The collision caused extensive damage to the tractor. It is agreed between the parties that the damage caused by the collision amounted to $217,204.55. The issues are whether that damage was caused by the negligence of Collins and secondly, whether the damage was contributed to by the negligence of Lindsay.

Facts

2. The paddock on which the collision occurred was part of a property known as “Moira Vale” which was one of a number of properties run in partnership by the plaintiffs, Robert Arthur Lindsay [1] , Pauline Joy Lindsay, Leonard Bruce Lindsay and John Robert Lindsay. The third and fourth plaintiffs are brothers. The partnership farms and grazes all of its properties.

   1. Deceased on 12 August 2018. By amended statement of claim filed on 15 February 2019, the first plaintiff was amended to John Robert Lindsay and Leonard Bruce Lindsay as joint executors and trustees of the estate of the late Robert Arthur Lindsay.

3. In order to prepare a paddock for sowing of crops it must first be cultivated. The paddock is levelled by ploughing which removes any weeds and mulches any dry matter. Ploughing is performed by pulling an implement called a plough offset behind a tractor. In this case the tractor was a John Deere 9410 tractor which was one of two main tractors used by the plaintiffs for their cropping operations.

4. When crops are sown, they are sown in a long straight line along the paddock. When a paddock is prepared for sowing, it is cultivated at an angle to the runs in which the crops are to be sown in order to prevent compaction and unevenness in the paddock when sown.

5. The tractor in question had an auto-steer program run with the use of GPS. This is instigated by starting the tractor at one corner of the paddock and pressing the GPS button which marks the point as Point A. The tractor is then driven diagonally across the paddock to the far corner where the button is pressed again and designated as Point B. The auto-steer then directs the tractor in lines parallel to the diagonal path between Points A and B and sets off an alarm close to the end of each run to enable the tractor to be turned and then to resume a parallel run in the opposite direction.

6. In order to turn, the implement is first lifted by hydraulics, the tractor is decelerated by means of a pedal and the tractor turned by the driver. After the tractor turns, the implement is lowered and the tractor continues the path set by the GPS.

7. The paddock where the collision took place is rectangular with the inner side being about 1.4 kilometres along the boundary. The adjoining property to the east of the paddock is called the “Medcalf” property. There is a track running along the boundary fence between the paddock and the adjoining property known as the Medcalf property. This track is single vehicle width and is graded without any gutters. There is a double gate in the corner of the paddock to allow access to the track to and from Moira Vale Road and a single gate at the other end of the track to allow access to the adjoining paddock.

8. The plaintiffs had an informal arrangement with the local Shire Council, whereby the Council could, after permission was granted, enter the Moira Vale property with trucks in order to gain access to a gravel pit which is situated on the Medcalf property. In order to access the gravel pit the Council trucks came through the double entry gates on the paddock from the Moira Vale Road, drove along the track at the edge of the property through the single gate at the end of the track into the adjoining paddock and then into the Medcalf property to where the gravel pit was located.

9. Dale Collins was employed at the relevant time by the first defendant as a machine operator. He held a New South Wales multi-combo class driver’s licence. On 7 April 2017 he arrived at work at approximately 6:00am in Nyngan for the morning toolbox meeting. He was allocated to work transporting gravel from the quarry on the Medcalf property to a nearby road repair site. He was instructed at the toolbox meeting to drive an Iveco Power Star prime mover towing two trailers (road train). The road train had an 18-speed Roadranger gearbox with which Mr Collins was familiar as he had been driving similar sized trucks for 15 years.

10. Collins was driven to the quarry in a road train by another of the first defendant’s employees and arrived at Moira Vale at approximately 8:30am. At that time, the third plaintiff, Bruce Lindsay, had started working on the paddock using the tractor and the implement. He set up the tractor to run at an auto-steer on the angle diagonally from corner to corner of the paddock and set it up so that the alarm went off as close as possible to the track. His evidence was that this meant that he would only have to do one run parallel to the track in order to work up the area of the paddock missed when the implement was lifted upon turning.

11. As Collins and his work colleague entered the property they saw Bruce Lindsay and they waved at each other. Collins and his colleague drove along the dirt road and went to the quarry.

12. It was a dry, windy day.

13. When they arrived at the quarry, there were already two other road trains – the road train that Collins was to drive and another which was being driven by another of the first defendant’s employees.

14. After Bruce Lindsay had set up the tractor and the auto-steer he called his son, Troy, to come down to drive the tractor so that he could go to another property to feed the sheep there.

15. Troy was about 21 years at the time and, although he was then an apprentice electrician with Newcrest Mining, he had worked on the partnership’s properties since he was a boy and had driven the plant and equipment on it including the tractor.

16. When Troy arrived at the paddock he had a quick discussion with his father about which end he wanted to plough and he got into the tractor and began to drive it. In his evidence he explained that generally the driver of a tractor uses the GPS to stay straight while ploughing, however he or she also needs to be aware of the external environment at the same time to avoid trees, rocks and stumps and in turning at the end of each row. Troy said that the routine he was using to plough the paddock was that he was driving with the tractor from corner to corner of the paddock in straight lines in approximately 45 degree angles to the track. He would commence at a starting point on the road, being Point A on the GPS at one end of the row of the track and said he would drive for about five or 10 minutes in a straight line, do a U-turn at Point B on the GPS at the other end of the row and then drive back to the track. Troy said that this was a continuous routine and each time he returned to the track at about a 45 degree angle he would again make a U-turn to commence his next straight line.

17. At the time of returning to the track, he lifted the ploughing implement clear of the ground so as not to damage it when turning or damaging the track. He explained in his evidence that the tractor was travelling at about 8 kilometres per hour on the straight run and that he would operate the decelerator in order to turn after the warning alarm had been activated by the GPS system.

18. Troy Lindsay said that on the morning it was a clear blue sky day and there were no issues until about 12:30pm and he had been driving the tractor continuously up until that time. At around 12:30pm, as he was in the process of making a U-turn at the track, he was approximately three-quarters of the way through a full left lock turn when there was a massive impact to the tractor which occurred suddenly and without warning.

19. On impact his head hit the windscreen and dust was filling up the cab and alarms were going off inside the tractor. He said that he realised then that the tractor had been hit by a truck. He had not seen the truck because the ploughing he was doing was creating a significant amount of dust, blowing over his left hand shoulder. This meant that, while he had unobscured vision out of the right-hand side of the cabin of the tractor, his vision was completely obscured to the left.

20. He said that while he had clear vision of any trucks going along the track towards the gravel pit, he could not see any trucks which were coming back from the gravel pit, that is, from his left. He said that while he had been ploughing on the day of the accident he had seen around three trucks driving along the track heading towards the gravel pit and then coming back from the gravel pit so that he was mindful that they were operating on the property on that particular day.

21. Dale Collins said that by midday he had completed two or three trips to the road site and at around midday he returned to the Moira Vale property and entered through the gate. As he drove along the dirt road he observed the tractor with its plough on the paddock to his left and recalled that the tractor was travelling towards him and could see that it was now being driven by a young man. He waved at that young man and the young man waved back.

22. He arrived at the quarry, loaded the trailers and got back on the dirt road travelling back towards the gate on the main road, the fence between the Medcalf property and the paddock was now on his left. As Collins travelled along the dirt road he had a clear view of the gate due to the dirt road being almost flat and there were no obstructions to his view. He said that he was halfway down the dirt road and had travelled about 200 or 300 metres from where he crossed the fence line when he saw the tractor travelling along a slight diagonal towards Moira Vale Road to the right of the gate. In his statement, Collins said that, at that point, the tractor was approximately 20 metres to his right just ahead of the road train. He said that it did not appear to him at all that the tractor was travelling towards the dirt road. Collins continued to travel along the dirt road towards the gate and he estimated his speed was around 20 to 25 kilometres per hour.

23. When he was just over 200 metres from the gate, he stopped using the accelerator and began to roll down the dirt road in anticipation of stopping at the gate before entering Moira Vale Road. The road train at that point was at the low end of the gearbox.

24. In cross-examination, Collins accepted that his evidence of time and distance were estimates and may not have been accurate.

25. Collins continued to travel along the dirt road for a few metres when a cloud of dust shrouded the cabin of the road train and his vision of the road was obstructed. He said that he continued to slow down using the engine brakes.

26. Collins’ evidence was that the dust made it difficult to see beyond the front of the truck but that he did not bring the road train to a halt as he was travelling slowly on a straight dirt road and there was nothing approaching the road train on the dirt road and he anticipated that the dust would clear quickly. He also did not stop immediately due to the heavy weight of the road train that he was hauling and knowing that the force of stopping abruptly could be dangerous.

27. Collins said that suddenly he saw the tractor’s wheels on the dirt road only about two to three metres away driving straight towards the road train. He then braked hard. He saw the tractor collide with the front right corner of the road train and his whole body jolted forward until the seat belt grabbed hold of him. His head hit either the steering wheel or the windscreen.

28. The collision was so hard it pushed the road train to the left, towards the fence catching one of the tractors wheels. The tractor collided with the right side of the road train’s lead trailer ripping open the fuel tank before coming to a stop. Collins said that the collision occurred so suddenly that he did not have a chance to sound his horn or to swerve to avoid it. The road train came to a stop with the prime mover and part of the lead trailer on the paddock and the rest still on the dirt road.

29. The plaintiffs relied on the report of Alan Joy, a traffic engineering consultant. In his report, Mr Joy made a number of comments about the evidence of each of the parties and in particular that of Mr Collins.

30. Mr Joy calculated that if, as Mr Collins said, the tractor was approximately 20 metres to his right just ahead of the road train when he entered into the paddock there would have been no collision. Assuming, on the basis of Mr Collins’ evidence, that the road train was travelling at 20km/h (5.6 metres per second) it would have travelled 101 metres in 18 seconds or, at 25km/h (6.9 metres per second) it would have travelled 124 metres. Assuming, and it was not contested, that the road train was no longer than 36.5 metres in length, the rear of the second trailer would have been at least 30 metres past the tractor when it reached the track.

31. Mr Joy also made a calculation of the actual speed of the road train based upon the measurement of the skid marks being 12 metres long. Mr Joy explained that the pre-braking speed is equal to the square root of twice the deceleration rate (metres per second/per second) multiplied by the skid distance (metres). He said that, assuming the brakes of the road train just met national heavy vehicle minimum roadworthiness requirements for braking performance which require deceleration equivalent to at least 0.29G (equal to 2.8 metres per second/per second), the pre-skidding speed of the road train was not less than 30km/h.

32. Mr Joy gave his opinion that Mr Collins was approaching the tractor and implement from behind and was in a position to reduce speed and allow the dust to disperse so that he could then see to proceed safely.

33. A few mathematical calculations corroborate Mr Joy’s opinion. The three known factors pertinent to the calculation are first, that the truck travelled 500 metres from the point of entry to the paddock to the point of collision; secondly, that the tractor was travelling at a diagonal to the track at an angle of 30 degrees [2] ; and thirdly that the tractor was travelling at 8km/h along that route and that it decelerated to approximately 5km/h in order to make the turn only moments before reaching the track. On that basis, travelling at 30km/h the road train would have taken 60 seconds to reach the point of collision. In that time, the tractor would have travelled 132 metres. Without descending into trigonometry, it is established from this that, at the point of entry of the road transport into the paddock, the tractor was well ahead of the truck and to its right.

    2. This is established from the drone images which were in evidence.

Consideration

34. The first issue is whether Mr Collins breached his duty of care. The answer to that question will also determine the liability of the first defendant as Mr Collins was employed by the first defendant. There is no issue that the first defendant was vicariously liable for any negligence of Mr Collins.

35. The question of whether there has been a breach of duty is determined by reference to ss 5B and 5C of the Civil Liability Act2002. They provide as follows.

5B   General principles

(1)   A person is not negligent in failing to take precautions against a risk of harm unless:

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)   the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.

5C   Other principles

In proceedings relating to liability for negligence:

(a)   the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)   the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)   the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

(Emphasis in original)

36. The structure of these provisions makes it essential to determine the relevant “risk of harm”. It is only once that is identified that it is possible to consider what precautions should be taken by a reasonable person in the defendant’s position: Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320; 91 NSWLR 752 at [106].

37. The risk of harm here was the risk of a collision occurring between a truck using the track to go to and from the quarry on the Medcalf property and the tractor which was cultivating the paddock.

38. The issue is what precautions a reasonable person in the position of the defendant would have taken against the risk of harm. The question is to be answered in a prospective way: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] (Hayne J). It must also be answered by reference to each of the matters in s 5B(2).

39. The angle of approach of the tractor to the track and the need for it to make a U-turn in order to continue cultivating the paddock meant that it was reasonably foreseeable that the tractor might at some point come onto the track at least to some extent. This is fortified by the fact that the tractor had double tyres on both the front and back and the implement it was towing was 10.4 m wide. These factors mean that it would not take much variation in each step of the turning process for some part of the tractor or implement to go onto the track.

36. As the track was single width there was little or no room for both the tractor and a truck the size of the road train to be on the track at the same time.

37. That being the case, it was also reasonably foreseeable that there might be a collision between the tractor and the road train.

38. The size of each of the vehicles and the weight of the loaded road train (approximately 70 tonnes) meant that any collision was likely to cause considerable damage to either or both of the vehicles.

39. The steps that could have been taken by Mr Collins to avoid the risk of a collision included him either coming to a complete stop when he saw the tractor ahead of him travelling towards the track or decreasing his speed to well below 20 kilometres per hour. These steps would have taken little time and almost no effort.

40. On his own evidence, Mr Collins did not take either of those steps. In failing to do so, he breached his duty of care. That breach of duty was a necessary condition of the occurrence of the harm suffered as a result of the collision. Simply put, had the truck not been where it was, and in motion, the tractor would not have hit it and would not have been damaged. The truck was where it was only because Mr Collins failed to take reasonable care to avoid any collision.

41. The plaintiffs asserted several other particulars of negligence including the failure to sound the horn on the road train. While it is strictly unnecessary to deal with this, I would reject it because there was no evidence of how loud the horn is, or that Troy Lindsay would have heard it had it been used. He was in a cabin operating a large piece of machinery dragging other machinery along a dry paddock on a windy day.

42. The remaining issue is whether the plaintiffs were contributorily negligent and ought to bear some portion of responsibility for the damages suffered by them. There was no issue between the parties that the relevant actor was Troy Lindsay and the question is whether he failed to take reasonable care. The same principles in s 5B of the CLA that are applicable to determining whether a person has been negligent also apply to this issue: s 5R; Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [14] – [16].

43. The tractor was a different vehicle to the truck and was performing different work. However, the risk of harm relevant to the inquiry for the tractor is the same risk of harm that existed in respect of the truck, namely, a collision between the two vehicles. Thus, the precautions that ought to have been taken by Troy Lindsay were broadly similar, though not identical to those that ought to have been taken by Mr Collins.

44. In my view, Troy Lindsay did fail to take reasonable care in the conduct of the cultivation and the plaintiffs ought to bear a considerable proportion of responsibility for their loss.

45. First, on his own evidence, Troy Lindsay was aware that trucks were passing back and forward on the track during the course of the morning. These were very large trucks weighed down by a significant amount of gravel. It was reasonably foreseeable in those circumstances that, at some point, a truck travelling on the track might come at least close to where he was cultivating the land and in particular, at a point when he was travelling towards the track. It was also reasonably foreseeable that, if that occurred, there may be a collision and such a collision would cause considerable damage to either or both of the truck and the tractor.

46. Secondly, I accept that, at the point of the cultivation where the tractor was travelling towards the track, dust was travelling across Mr Lindsay’s left shoulder so that he had little, if any, visibility of the track itself. However, the GPS system had two features which enabled Mr Lindsay to avoid any possible collision with a truck travelling along the track. First, the GPS allowed him to see the position of the tractor in the paddock of the screen. In other words, to see how far away the tractor was from the track; and secondly, it sounds a warning at a point when the tractor should turn. Armed with at least the first of these facilities, Troy Lindsay could have slowed down well in advance of the track either to check visibility once the dust had passed or to allow him time to turn before reaching the track.

47. In his evidence, Troy Lindsay said that slowing down to any greater degree would be inconvenient; however, in face of the considerable risk and amount of damage that would occur in a collision, that inconvenience did not make the measure of slowing down any less reasonable.

48. For that reason, I consider that Troy Lindsay, as an operator of large machinery on a paddock where there was a reasonably foreseeable risk of collision with other large machinery, ought to have slowed down sufficiently before each turn in order to determine whether there was a truck on the track at that time and whether it was safe for him to turn. He failed to do that and turned the tractor without any real regard for the risk of collision.

49. In my view, the responsibility of each party was largely identical. While Mr Collins could see the tractor, he paid it insufficient regard and it is likely that he miscalculated its trajectory, thinking that it was travelling at a more oblique angle than it actually was. I do not accept his evidence that he was travelling at 20–25 km/h as that is inconsistent with the skid mark left by the tyres once he applied the brakes. I also do not accept that he was not using the accelerator at all because, as he accepted in cross-examination, he would have done that only 200 metres or so from the double gates that led to Moira Vale Road and the collision occurred some 700 metres before the gates.

50. On the other hand, Mr Lindsay turned the tractor to his left without being able to see anything at all on that side. He knew that there were heavy trucks using the road but acted as though they were not there and he was cultivating an empty paddock.

51. For those reasons, I assess the plaintiffs’ contributory negligence at 50%.

Orders

56. I make the following orders:

1. Verdict for the plaintiffs.

2. Judgment for the plaintiffs in the sum of $108,602.28.

3. I direct the parties to file within 14 days:

1. short minutes of order reflecting the appropriate amount of pre-judgment interest on the judgment amount and any agreed order as to costs; or

2. failing agreement on either or both of those matters, written submissions as to the appropriate orders in respect of the disputed issue or issues which will be determined on the papers.

4. The parties have liberty to apply in respect of order 3 on three days’ notice.

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Endnotes

Decision last updated: 01 November 2019