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

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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Lindsay v Neil Earthmoving Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWDC 612
Decision Date: 01 November 2019

CaseChat Overview and Summary

The case before the court involved a dispute between Lindsay, the plaintiff, and Neil Earthmoving Pty Ltd, the defendant, regarding a motor vehicle accident that occurred on an access track through the defendant's property. The plaintiff, Lindsay, was driving a road train when it collided with a tractor and plough belonging to the defendant. The collision resulted in significant damage to both vehicles and personal injuries to Lindsay. The incident occurred due to dust clouds created by the plough's operation, which obscured Lindsay's vision. The plaintiff sought damages for the injuries and vehicle damage, while the defendant argued that Lindsay's contributory negligence contributed to the accident. The court was tasked with determining liability for the accident and apportioning damages between the parties.

The court identified the primary legal issues as whether the defendant's operation of the plough created a foreseeable risk of harm, and if so, whether the plaintiff's actions contributed to the accident. The court considered the foreseeability of the dust clouds and the steps that could have been taken to mitigate the risk. Additionally, the court assessed the extent to which the plaintiff's actions contributed to the accident, particularly in relation to his speed and response to the dust clouds. The court examined whether Lindsay exercised reasonable care under the circumstances and whether he could have avoided the collision by taking appropriate precautions.

The court found that the defendant's operation of the plough created a foreseeable risk of harm due to the dust clouds, which were a known hazard. The court held that the defendant failed to take reasonable steps to mitigate this risk, such as warning Lindsay of the plough's operation or reducing the speed of the plough. The court also found that while Lindsay's actions contributed to the accident, the primary cause was the defendant's failure to manage the foreseeable risk. The court determined that Lindsay's contributory negligence reduced his entitlement to damages, but the defendant remained primarily liable for the accident. The court awarded damages to Lindsay, reflecting both his injuries and the damage to his vehicle, after accounting for his contributory negligence.

The court ordered that the verdict be in favour of the plaintiffs and that judgment be entered for the plaintiffs in the sum of $108,602.28, reflecting the total damages awarded after deducting the plaintiff's contributory negligence. The court's decision emphasised the importance of managing foreseeable risks associated with agricultural operations and the need for both parties to exercise reasonable care in such situations.

Orders

Orders of the court

1. Verdict for the plaintiffs

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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