Lee v Dow

Lee v Dow - [2017] NSWDC 220 - NSWDC 2017 case summary — Zoe

[7]

Evidence of Senior Constable Dalati

The plaintiff called Senior Constable Nassim Dalati to give evidence in her case. Constable Dalati was a Senior Constable at the Wagga Wagga Police Station. He attended the plaintiff's property on 20 April 2013 following a report of the injury. In Senior Constable Dalati's notebook he wrote out a statement which was signed by the defendant on 20 April 2013: Exhibit B.
This statement relevantly provides as follows: "I was driving a tractor reversing up to a post on Lake Albert Road, near the corner of Lakeside Drive. This was 3.40pm 20/4/13. During this time, the tractor reversed and went through the fence. I didn't intend to hit the fence. The fence collapsed and fell on my friend Honor Lee. The tractor went into the creek and I got out to help Honor Lee who was caught in the barbed wire of the fence. Q: Why do you think the accident happened? A: I don't know."
Senior Constable Dalati also completed a Police COPS Report relating to the accident. He gave evidence that this was based on his observations and what Mr Dow said to him. The relevant part of the COPS entry was as follows: "At the above time and date, Robert Dow was assisting Honor Lee with some work on her farm. During this time, Robert Dow was driving a tractor on Lee's private property and Lee was standing next to a nearby fence. Robert Dow reversed more than necessary in the tractor, causing him to collide with the fence on the property and drive down Marshalls Creek, a fairly steep embankment. Dow exited the vehicle and checked on the welfare of Lee. Due to the incident Lee became entangled in some barbed wire from the fence and sustained injury in the form of multiple lacerations and is missing the tip of one of her fingers. … The weather during this incident was fine and it occurred on grassland on a farm property. Dow insists he was not travelling at speed and his intention was not to hit the fence but to get close to it in order to tie a rope to it. Police collaborated [sic] the driver's version with the victim's version. Due to the incident occurring on private property, no legal action will be taken by police."
Senior Constable Dalati said that he did not take a statement from Ms Lee as she had been injured and taken to hospital by ambulance. Senior Constable Dalati could not recall whether an attachment was connected to the tractor at the time but later evidence made clear that a slasher for slashing grass was attached to the tractor at the time together with a steel wire cable.
Senior Constable Dalati confirmed that the version in his police notebook (Exhibit B) was what Mr Dow said to him on the day in question.
The impression I gained is that Senior Constable Dalati had no real independent recollection of the events in question other than what was in his police notebook and the COPS report, both of which were in evidence.

[8]

Evidence in chief

The plaintiff gave evidence that she was born in March 1952 making her 61 years old at the time of the 20 April 2013 accident. Ms Lee was born in America and came to Australia when she was 18 years old. She is a divorced lady with three adult children from a previous marriage. She lived xxxxx at the time of the accident and now.
Ms Lee gave evidence that at the time of the accident she owned a 60 acre property. This property fronted Lake Albert Road, was near to a built up residential area in Wagga Wagga and was used at the time for raising cattle.
Ms Lee gave evidence that on the day of the accident, 20 April 2013, Mr Dow was on her property to her knowledge and with her permission. She saw him first at about 2pm on that day. At the time Mr Dow had his tractor with him. Ms Lee gave evidence that there was a fence on the property parallel with the creek. This fence consisted of concrete posts interspersed with steel star picket posts. The fence had two strands of barbed wire at the top, three to four strands of plain wire at various stages on the fence and mesh at the bottom. As a result of flooding, parts of the fence had fallen over with the top of the posts facing towards the creek. What was being undertaken was a process of Mr Dow using his tractor with a cable attached to pull the fence so that it returned to an upright position with additional posts being rammed into the soil to hold the fence in place. Ms Lee gave evidence that the distance between the fence and the creek embankment was about two feet to a metre. She said there was grass on the edge of the bank of the creek at the time and it was about three to four metres from the fence to the bottom of the creek bed which was dry at the point of the ultimate accident.
Ms Lee said that she observed Mr Dow using his tractor with a cable attached to it to connect to the fence and then pull the fence upright. She also observed Mr Dow using a rammer to ram in star fence posts to secure the fence in place.
Ms Lee said that shortly before the accident she climbed through the fence from the paddock side to the creek side of the fence and was walking along the fence on the embankment towards Lake Albert with her back to the part of the fence which was collapsed. Ms Lee said that she saw the tractor earlier prior to walking away and she assessed the tractor as being about 30 feet away from the fence at the time that she observed it: T46.45. Ms Lee said that she was walking towards Lake Albert as she wished to walk away from the area where the tractor was situated and the cable was to be connected to the fence.
Ms Lee said that as she was walking towards Lake Albert she was hit on the left side by the fence and then fell into the creek bed: T21.14. There was no clear evidence as to how far she had walked away when she was struck by the fence. She said she put out her hand to attempt to stop the fall and was in due course enveloped by the wires of the fence and dragged down head first towards the creek. She said she called out a number of times and by this time the wire was wrapped around her head and throat and she had difficulties breathing. She said she believed that she was caught in the creek bed for between 15 and 20 minutes: T21.34.
Ms Lee said that using her feet she pushed herself so she could breathe and called out to Mr Dow words to the effect: "Get the wire cutters and cut me free". She did not know whether Mr Dow assisted in that process. She said that as far as she can recall she pulled her hair out where it was tangled up with the wire and eventually was able to pull herself free and climbed up to the paddock with the assistance of Mr Dow. She said she used her mobile phone to call the ambulance. Ms Lee said she was terrified and in pain. When she got to the top of the creek embankment to the paddock Ms Lee said that she did not look back at the creek and observe where the tractor was. Later in cross-examination Ms Lee said that when she was caught at the bottom of the creek she saw the tractor near her with the slasher attached to it. The tractor was also in the creek bed.
In due course, an ambulance came and she was taken to Wagga Wagga Base Hospital where she was admitted. Ms Lee said that she had surgery on her right hand on 21 April 2013. She said that she is right hand dominant: TT23.14. Ms Lee gave evidence that she was discharged on 23 April 2013 and had been under the care of Dr Angela Hatfield, a hand surgeon. Upon discharge she had treatment from a hand therapist and also from Dr Hatfield and later from another hand surgeon, Dr Masson. Ms Lee said that she had further surgery on 18 March 2016 to her right hand and thumb. Ms Lee said that she ceased having assistance from the hand therapist as it was too expensive and was transferred to an occupational therapist at Wagga Wagga Base Hospital. Ms Lee said that she also was receiving treatment from a psychologist who she was seeing either fortnightly or monthly.
Ms Lee gave evidence that when she was discharged from hospital her hand was bandaged and it remained bandaged for more than six weeks. In that period she was not able to drive and saw a physiotherapist and occupational therapist for hand exercises on nearly a weekly basis.
At the time of the accident she was working and in due course she was able to return to her job as a sales and administrative assistant at a timber yard/building supplies provider. She said that she used her right hand in her job prior to the accident for writing, making entries in the cash journal and answering the phone: T27.49. Ms Lee confirmed that she could write now without difficulty following adaptation to her injuries. She said she continued undertaking hand exercises on a regular basis: T28.39. She gave evidence that for some considerable time she had a hand brace on her hand to assist in its recovery: T28.43. She believed that her hand had recovered to the extent it would recover from the accident.
Ms Lee gave evidence in relation to her injuries and disabilities arising from the accident as follows: 1. She said she had chipped her front teeth and had a scar on her nose and lip. She said her teeth had been temporarily repaired and she still had the scar on her nose: T29.30; T30.2 2. She said she received bruising on both sides of her head arising from the accident;: T29.46 3. In relation to her left shoulder and neck, Ms Lee said that her left shoulder hurt "all the time" and disturbed her sleep: T30.12. She said that if she used her left arm a lot it gave rise to pain in her neck. Prior to the accident she did not have any problem with her sleep: T30.18. She said that the pain in her left shoulder woke her up on occasions: T30.26; 4. The plaintiff said that arising from the accident she had pain in her left pelvis and hip which gave rise to incontinence if she agitated her pelvis: T31.40; T32.4. In the last six months Ms Lee said that she had problems with incontinence on about an average of a fortnightly basis depending on activities. She gave evidence that she had been examined by Dr Marcus Carey, a Urogynaecologist in 2017. Dr Carey in his report (Exhibit A, page 121) noted some degree of uterine prolapse but said that Ms Lee had no prolapse symptoms. He recommended that Ms Lee undergo urodynamic studies and cystoscopy to assess her bladder symptoms; 5. Ms Lee said that on occasions the problem in her pelvis and hip caused her to tilt to the left and sometimes fall over. She said she had sometimes had difficulties with control of her legs with her legs parting unintentionally: T31.27; 6. Ms Lee said that she had pain in her left knee arising from the accident. The pain occurred if she twisted it or put pressure on it. She that this pain woke her up on occasions: T31.42; 7. In relation to her right hand Ms Lee gave the following evidence: 1. Her hand still gives rise to pain: T25.5; 2. She had numbness in her hand on the side of the right index finger spreading across the web to the thumb. She said this gave rise to a "tearing, drawing feeling": T25.43; 3. Ms Lee said that she had difficulty grabbing things properly and difficulty grasping things. She said that she used her teeth and left hand to assist her to compensate for her lack of grasping capacity: T25.6; T26.2, T26.23. 1. In relation to her emotional condition, Ms Lee said that she thought about the injury on a daily basis. She gave evidence that recollections of the injury sometimes arose involuntarily and her sleep was disturbed and she woke up. She said she felt depressed but was not on anti-depressive medication: T32.48. She said she was against taking anti-depressive medication due to an overdose of someone she knew: T33.4. Ms Lee gave evidence that she preferred to undertake counselling and assistance from her doctor. Ms Lee said that she got agitated in stressful situations: T33.48.
Ms Lee was then asked some questions about how her disabilities had affected her ability to undertake household tasks. She said she did not undertake a number of household tasks after the accident. She said she had difficulty cleaning the bath, scrubbing the tiles, vacuuming, cooking, washing and ironing. Ms Lee said she did not iron and obtained a lot of easy to prepare meals or ate out. She said she vacuumed very sparingly. Prior to the accident she was able to undertake all of these tasks without problem. Ms Lee gave evidence that if she received compensation as a result of the case she would want to get some help and pay for it in relation to household activities and maintenance: T37-8.
Ms Lee was asked some questions in chief about some diagrams prepared by a surveyor which were at Exhibit A, pages 249-250. Ms Lee said that these diagrams represented her best recollection as to what had occurred on 20 April 2013: T44-46 especially T44.39 and T46.1. She confirmed that at the time she was first struck on her left hand side she was walking away from the direction of the tractor as indicated in the diagram at Exhibit A, page 249: T45.44-46.23. Ms Lee confirmed that the location of the tractor on the right hand side of Exhibit A, page 249 was the location the tractor was in at the last time she saw it prior to the accident. Ms Lee said that she was standing with Mr Dow near the fence on the paddock side of the fence immediately in line with the tractor as shown on Exhibit A, page 249 on the right hand side of the page at the time Mr Dow told her that he needed to reverse the tractor back. Ms Lee confirmed that a cable was attached to the tractor prior to the accident. She said it was a metal rope.

[9]

Cross-examination of the plaintiff

In cross-examination, Ms Lee confirmed that she lived in a transportable home located on another person's property. She said it was a two bedroom home with a toilet, bathroom, living room, kitchen and office space. She said she had been living there since 2001, that it was a small home and xxxxxx: T51.
Ms Lee gave evidence that at the time of the accident she had received domestic assistance for two hours on three days per week for a period of six weeks. This had also occurred after her surgery in 2016.
In answer to the suggestion that she was able to keep her house tidy and clean since the accident, Ms Lee said that she was able to manage but in a compromised way: T52.13. It was put to Ms Lee that if a professional cleaner came to help her that she would only need assistance for one hour to do the various tasks that she had difficulty managing. Ms Lee denied that and said she had difficulty with dusting, washing, changing the sheets, cooking and undertaking repairs. These activities caused problems with her left shoulder and hand. After extensive questioning, Ms Lee gave evidence that she thought that she would need a professional cleaner for two hours per week to assist her with her tasks. In response to the suggestion that it appeared she had no physical difficulties in sitting in the witness box and giving her evidence, Ms Lee said that she had difficulties with her shoulder and hand but had recently had a cortisone injection to her shoulder.
In relation to her incontinence issues, Ms Lee said that she saw Dr Carey and was investigating her problems. She said that she had the incontinence problems from the time of the accident.
Ms Lee was asked numerous questions in relation to the events prior to and on the day of the accident.
She confirmed that Mr and Mrs Dow had been on her property a number of previous times and had assisted her with tasks from time to time: T52.45. They helped her plant trees, feed calves and Mr Dow had used his tractor to slash the grass on the property: T53.7.
Ms Lee confirmed that she had arranged with Mr Dow to assist her with her fencing the day before the accident. She agreed that Mr Dow was coming on her land with his tractor to help pull the fence upright which had fallen over, although still strained as a result of floods in 2012: T54.2. Ms Lee agreed that both Mr and Mrs Dow arrived there and they had a conversation together.
It was put to Ms Lee that Mrs Dow had said to her words to the effect: "You never stand near or behind a tractor when it is working because the wire can snap and spring": T54.23. Ms Lee denied this. Ms Lee additionally denied that the warning had been repeated to her by Mrs Dow and that she had confirmed that she had heard it and understood it: T54.33. She said it was not stated by either Mr Dow or Mrs Dow to her: T54.43.
She confirmed that Mrs Dow had left early to pick up her sister: T54.49.
Ms Lee could not confirm how many fence posts had been righted by the time she arrived as she does not recall being there initially. Ms Lee said she did recall Mr Dow ramming star picket fence posts to assist in supporting the fence which had been righted. She agreed that she had inferred from seeing Mr Dow doing this that he had raised the fence post and was supporting it with the star pickets.
Ms Lee said that she recalled soon after Mrs Dow leaving that she had a conversation with Mr Dow to the effect that he had to move the tractor: T55.40. She understood that he had to move the tractor to put it into position to raise upright the next part of the fence and the next fence post. At this time there was a still a small area of fencing leaning towards the creek. Ms Lee confirmed that although the fence was leaning over all the wires were still connected within the fence and it was "quite stable": T56.24.
Ms Lee denied that when the accident occurred and she was dragged into the creek that she ended up being very close to the tractor which also was in the creek bed. She specifically denied that the tractor was about one metre away from her: T57.27.
Ms Lee confirmed that the last time she saw the tractor before the accident was where it was located on the right hand side of the page on Exhibit A, page 249: T57.42. The next time she saw the tractor was when it was in the creek bed after the accident. She confirmed that she was aware that Mr Dow intended to use the tractor to repair the fence after their conversation near the fence and that she knew he needed to move the tractor to do so: T55.44; T58.6.
Ms Lee said that although high grass was shown on the creek bank in the photos which were part of Exhibit A, Mr Dow had slashed her paddocks in March/early April 2013 and the grass at the time of the accident was green and short: T58.21. She confirmed that there was nothing blocking her view of the tractor but as she was walking away from it she did not see it reversing.
It was put to Ms Lee that it would have been safer to have moved further into the paddock area away from the creek rather than climb through the fence on the other side of the fence and she denied that: T58.35. She agreed that the area where she was walking was two feet to one metre in width and that she was reasonably close to the fence and could have reached out to touch it. She denied that her actions were a disregard for her own safety: T59.7. She did not recall hearing the tractor getting louder or looking towards it to see what the tractor was doing. Ms Lee confirmed that as Mr Dow was walking back towards the tractor she climbed through the fence and walked away. She said she did not know whether Mr Dow was not able to see her climb through the fence: T59.39.
It was put to Ms Lee that Mr Dow came to her assistance in the creek bed but she said she did not recall this. It was also put to her that he had helped to untangle her and had called 000 but she denied this. She agreed that Mr Dow had assisted her back to the road.
When it was put to her that the accident had not affected her handwriting and that she had adapted, she agreed that she had adapted but it was a gradual process: T60.35. When it was suggested that she was able to make adjustments with her other disabilities she said that she could not do a lot of things that she was able to do before the accident: T60.43.
The plaintiff struck me as an honest witness who made every effort to tell the truth. Although sometimes a little vague, she made concessions where appropriate and readily admitted where she did not have a recollection of the matter. It is expected that the traumatic accident would have had some effect on the clarity of her recollection although it appeared to be good in her evidence and was assisted by the surveyor's drawings which are at pages 249-250 of Exhibit A.
I generally accept the plaintiff as a witness of truth. She did not appear to exaggerate in her evidence, particularly as to her domestic needs.
She also did not appear to exaggerate her continuing disabilities arising from the injury. If anything, she appeared to be fairly stoic and positive in relation to her disabilities.

[10]

Evidence in chief

The defendant, Mr Robert Dow, agreed that he lived on a nearby property with his wife Kath. He said he was a mental health clinician and was 66 years of age.
He confirmed that on 20 April 2013 he was driving a tractor on Ms Lee's property. He said he had known the plaintiff for about 12 months prior to the accident: T66.43. He said he had been on her property before as he had slashed grass on the whole property and had helped the plaintiff plant trees and feed calves: T67.2.
Mr Dow said that he had acquired the tractor about a month before and was familiar with the operation of the tractor: T67.11 and T14.50 (day 2).
On 20 April 2013 Mr Dow said he had attended Ms Lee's property with his wife. This had been arranged previously. They intended to help the plaintiff generally and decided to pull the fence up which had collapsed: T67.43. He confirmed that Ms Lee was present at the time and that he had used a wire cable which was connected to the tractor to connect to the concrete posts to pull them to an upright position: T68.24.
Mr Dow said that he had a conversation with Ms Lee in which he said words to the effect that he would back the tractor up, connect the wire rope to the post and move the tractor and pull the fence upright: T68.30; T69.2. He could not recall whether he had a further conversation with Ms Lee: T69.14. He did recall hearing his wife having a conversation with Ms Lee in which she said to her words to the effect "to make sure you steer clear of tractors and behind tractors" and then "don't go behind tractors": T69.22. He said that this was said on more than one occasion by his wife (T69.29) and Ms Lee said words to the effect that "I understand and have heard what you have said" T69.35.
He said his wife then left to pick up her sister at the airport (T69.50). Prior to her leaving he had proceeded to attach the cable which was connected to the back of the tractor to the first concrete post where the fence had fallen down and pull it to an upright position and then pack the soil around the post and secure the concrete post with star pickets: T70.8-70.17.
In relation to the first concrete post which was pulled upright using the tractor, Mr Dow said that his wife and Ms Lee were standing on the right hand side of the tractor in the paddock about five to six metres clear of the tractor in line with the back wheel. He was not entirely sure of this: T70.23-70.42.
After the first post was pulled upright his wife then left. In relation to the second post this was also pulled upright: T71.19.
He then backed the tractor up and moved the tractor from its position in line with the second post to be in line with the third post which had fallen over with the fence: T71.41. He does not recall having a conversation with Ms Lee at this time: T71.48. Mr Dow said that when he relocated the tractor he did not see Ms Lee before moving the tractor: 72.2. He said she did not say anything to him and he confirmed that there was no problem with any vegetation blocking his view: T72.4-.13.
He said he then relocated the tractor driving forwards and looking forwards: T72.24.
Mr Dow then said he began reversing the tractor to attach the cable to the third concrete post.
Mr Dow gave evidence that the tractor had both low and high range power. The low range was used for slow driving and where power was required for the tractor. The high range was used for faster driving. He said the tractor was in the low range at the time and he reversed slowly: T72.44; T76.34.
Mr Dow gave evidence that he started to reverse the tractor and looked around but did not see Ms Lee: T72.48. He said as he was reversing and looking around he did not see anything: T73.16.
Mr Dow said that the tractor continued to go back and that he attempted to put the clutch in and hit the brakes with his feet to slow it. He said that there was a brake pedal on both sides of the tractor and the pedal on the right also included a pedal for the clutch which could be hit at the same time as the right hand foot brake. Mr Dow said that despite putting his feet on the clutch and brakes there was no response from the tractor as he recalled and the tractor simply continued to go back until it hit the fence: T73.32-74.47. Mr Dow said he did not attempt to turn the engine off when the clutch and brakes did not respond: T76.40. He said the tractor went through the fence and continued to reverse until it was at the bottom of the creek bed where there was minimal water. He said that when the tractor stopped it was about one metre from Ms Lee who was on the right of the tractor: T75.39. He then said that he switched the tractor off and that Ms Lee called out to him "to get the wire cutters". He said that he also cut her hair out of the tangle of barbed wire: T76.2-.25.
Mr Dow said that when he was reversing on the third occasion he adopted the same procedure of applying his feet to the brakes as he had on the previous two occasions: T76.16.

[11]

Cross-examination of Mr Dow

Mr Dow was cross-examined in relation to the statement which he gave to police and which he signed on 20 April 2013 which was recorded in Senior Constable Dalati's notebook and which became Exhibit B in the proceedings. Mr Dow confirmed that he told police that he did not know how the accident happened: T5.17 (day 2). He said he had answered police questions truthfully and that his statement to police was complete: T5.49 (day 2)
Mr Dow was asked whether he made any enquiries as to why the tractor had kept going despite his claimed application of the brakes and he said he had not: T5.25 (day 2). No evidence was given by Mr Dow of him having the tractor checked out for any defect. No expert report was tendered by either party in the proceedings in relation to any defect in the tractor. This was despite the fact that this was a central issue in the proceedings.
Mr Dow was asked questions about the police COPS entry which Senior Constable Dalati said was based on his own observations and his conversation with Mr Dow. In particular Mr Dow was taken to that part of the entry which read "Robert Dow reversed more than necessary in the tractor, causing him to collide with a fence on the property …". Mr Dow could not recall telling Senior Constable Dalati that he had reversed more than necessary: T6.23 (day 2). Mr Dow was then taken to his signed statement in the police notebook (Exhibit B). He was asked why he did not tell the police that he had attempted to apply the brakes without success. Mr Dow could not answer this and said they did not ask him this question: T9.31-T10.4 (day 2). Overall, I formed the opinion that Mr Dow had a fairly poor recollection as to what he had told the police on 20 April 2013.
It was then put to Mr Dow that he had indicated that his foot had slipped off the clutch in the process of reversing when the accident occurred. Mr Dow said that "it may have done": T10.43 (day 2). He then added that he did not know whether his foot had slipped off the clutch at the time: T10.48 (day 2). He was asked whether before reversing he looked to see where the plaintiff was located. He said he looked over his shoulder, did not see the plaintiff and assumed that she had not moved from her existing position: T11.14-11.46 (day 2). Mr Dow said that he was satisfied she was not in a position of danger as he assumed she was in the same position as she had previously been: T11.39 (day 2).
It was put to him that it was open to him to turn the motor off on the tractor when it did not respond and he said that he did not do so as the incident happened very quickly. However, he conceded that the tractor was not reversing very fast at the time: T12.25 (day 2).
Mr Dow then gave some inconsistent evidence in relation to the length of the steel cable which was attached to the tractor. Mr Dow denied that the cable was 30 feet long but said it was more likely to be 12 to 15 feet long: T13.43 (day 2). He then said it was not quite as long as 10 metres: T14.17 (day 2). When it was put to him that the cable was about 10 metres in length he said that he agreed with that "give or take": T14.21 (day 2). Eventually he gave evidence in re-examination that the cable was three to four metres long at the most: T15.25 (day 2). After an adjournment the cable was viewed by counsel and it was an agreed fact that the cable which was attached to the tractor on the day was 10 metres in length: T25.46 (day 2). This raised further questions about the accuracy of Mr Dow's recollection of events on the day of the accident.
I formed the view that Mr Dow was a witness who was attempting in the main to give his evidence honestly. However, I also formed the view that he did not have a good recollection of events on the day of the accident, perhaps because the events had been traumatic. In my view in his evidence he reconstructed part of the events on the day before and during the accident based on what he thought must have happened. I consider that some caution should be exercised in accepting Mr Dow's evidence, except where it is supported by objective or independent evidence.

[12]

Evidence of Mrs Kathleen Dow

Oral evidence was given by Mrs Kathleen Dow who is the wife of the defendant, Mr Dow.
Mrs Dow indicated that on 20 April 2013 she and her husband, the defendant, travelled to the plaintiff's property to assist the plaintiff. Mrs Dow said they had been there a number of times before to help the plaintiff and that it was a fine day: T18.29 (day 2).
Mrs Dow said that she did not believe there was any understanding reached previously as to what work was to be undertaken on the plaintiff's property: T19.6 (day 2). She gave evidence that Mr Dow decided to pull up the fence posts which had been knocked down with the flood: T19.10 (day 2).
Mrs Dow gave evidence that she had a conversation with the plaintiff, Ms Lee, shortly before the first post was pulled up when the tractor was in position: T19.43 (day 2). She said that the plaintiff, Mr Dow and herself, were standing near each other at the side of the tractor: T19.43 (day 2). Mrs Dow said that she said to the plaintiff words to the effect "you never go near the tractor when it is working, you never go behind the tractor when it is working. The wire could snap and fly off and the tractor could slip and knock you over, if you are behind the tractor": T20.1 (day 2). Mrs Dow said that there was no response from the plaintiff to this statement and after Mr Dow went off to attach the wire to the post she repeated it to the plaintiff who again did not respond. She then repeated it on a third occasion and the plaintiff confirmed that she had heard and understood what was said: T20.26 (day 2).
Mrs Dow said that the first post was lifted up by Mr Dow using the tractor while she and the plaintiff were standing in the same position. Mrs Dow said she then left the location to pick up her sister from the airport: T20.48 (day 2). When she left Mr Dow was sitting on the tractor: T21.9. Mrs Dow said that she then said words to the following effect to the plaintiff when she left, "You stay where you are standing, do not move - do not move from here, do not go behind the tractor, you just stay here." It is noted that this last conversation was not put to the plaintiff by counsel for the defendant in cross-examination: T54.
In cross-examination Mrs Dow confirmed that she had given warnings to the plaintiff about going near a tractor, particularly behind the tractor, on four occasions on 20 April 2013: T21.35 (day 2). Mrs Dow confirmed in cross-examination that memory can diminish with the passage of time but she asserted that she remembered the warnings which she said she gave: T22.38 (day 2).
I was not impressed with the evidence given by Mrs Dow in relation to the warnings. I think it is highly unlikely that she gave such specific warnings to the plaintiff on four separate occasions. There was nothing in the plaintiff's actions or demeanour on the day on the evidence that would necessitate warnings of that nature being given. The warnings were in a form and delivered in a way which was unlikely where friendly neighbours were involved. I think it is unlikely that warnings of this nature were given.
Further, Ms Lee was actually complying with the warnings, if given, when the accident occurred. She was walking away from the tractor so she was not behind or near the tractor. She was not, it appears, in an area where she could likely be injured if the steel cable attached to the tractor snapped and flew off.

[29]

Report of Dr A Dwyer - 15 October 2016

Dr Dwyer is a consultant psychiatrist. A report from her was provided to the defendant's lawyers. After consultation with the plaintiff, Dr Dwyer diagnosed a major depressive disorder with anxious distress of a moderate severity. Dr Dwyer looked at the plaintiff's difficult relationship history concluding that she had a "predispositional vulnerability to [depression] due to past traumas" and opined that the accident had led to significant physical injuries and pain which had challenged the plaintiff's internal resources and precipitated a deterioration in her mood, ability to self-care and capacity to manage anxiety. Dr Dwyer expressed the opinion that the plaintiff had been significantly disabled by the accident both physically and due to the psychological effects.
However, Dr Dwyer expressed the opinion that the plaintiff's prognosis was reasonably positive as far as her psychological function was concerned and that she had successfully engaged in psychological therapy previously with positive results. Dr Dwyer indicated that the plaintiff should have appropriate psychiatric and psychological support and with this she could recover from her depressive illness and regain some pre-injury function with improved energy, motivation and memory/concentration. Dr Dwyer expressed the opinion that the plaintiff at the time of her report did not have a sustained capacity to carry out any work of a light and/or clerical nature due to her psychological injury.
Dr Dwyer disagreed that the plaintiff had received appropriate psychological treatment and indicated that she would advise weekly psychological therapy to manage her current symptoms for at least six months if not longer. Dr Dwyer also disagreed that the plaintiff did not require antidepressant medication.
Dr Dwyer was of the opinion that appropriate pharmacological therapy could improve the plaintiff significantly and that with it, it was possible that the plaintiff could gain an improved mental state with improved psychological symptoms which currently limit her activities.

[30]

Factual findings

Having regard to the evidence and the submissions made on behalf of the parties, I make the following factual findings in the matter: 1. At all relevant times the plaintiff owned a rural holding on the outskirts of the New South Wales town of Wagga Wagga of 60 acres in size. On the property she raised cattle. She did not live at the property. 2. The plaintiff's neighbours were Mr and Mrs Dow with whom the plaintiff was on good terms. 3. The plaintiff's property was bordered on one side by Marshall's Creek and on another side by a road which fronted Lake Albert. In 2012 Marshall's Creek had flooded causing damage to some of the plaintiff's fencing which was to the landward side of the creek. The fence consisted of concrete posts interspersed with three or four metal pickets. The fence also had two strands of barbed wire, three to four strands of plain wire and mesh at the bottom of the fence. The flooding had caused part of the fence to fall over such that the top of the concrete posts was pointing in the direction of the creek. Despite this, the fence was still strained and intact. 4. On 19 April 2013 Mr Dow had agreed with the plaintiff that Mr and Mrs Dow would provide assistance to her on her property the next day. On the afternoon of 20 April 2013 Mr and Mrs Dow came to the plaintiff's property. Mr Dow had his tractor which had a slasher implement attached to the back of it. Mr Dow also had a steel cable or rope attached to the tractor. It was decided that one of the tasks which would be undertaken would be to attach the steel rope to the concrete fence posts which had fallen over and to use the tractor to pull the concrete posts to an upright position so that the fence was in its correct position. The soil around the concrete posts would then be rammed and additional steel star pickets would be inserted by Mr Dow in the ground to provide additional support to the fence. 5. Using this procedure, the steel rope was attached to one of the concrete posts which was part of the fence which had fallen over and using the tractor it was pulled by Mr Dow to an upright position and then supported. Mrs Dow was present when this occurred. 6. Mrs Dow then left the location to pick her sister up from the airport. Mr Dow then undertook the same procedure using the tractor in relation to a second concrete post and the fence which was attached to it. 7. Evidence was given by Mr and Mrs Dow that warnings had been given to the plaintiff not to go near the tractor when it was working or behind the tractor when it was working primarily because the cable may snap or the tractor may slip. In my view this evidence should not be accepted and the plaintiff's evidence that no such warnings were given should be preferred. Mr Dow's evidence was general as to these alleged conversations and he had difficulties giving the substance of the alleged warnings. Mrs Dow's evidence as to the warnings was clear but it appeared to me to be unlikely. There did not appear to me to be the occasion to give warnings of the precise and fairly formal nature which Mrs Dow claims she gave. There is no evidence that the plaintiff gave any indication of moving in a dangerous area in relation to the tractor. Warnings of the nature stated would unlikely be given between friendly neighbours. Whilst Ms Lee did not give any evidence of experience with tractors whereas Mrs Dow was brought up in the country, they were both standing well clear of the tractor when the warnings were allegedly given. I was impressed by the plaintiff's evidence as to this matter and I prefer it. In any case, I do not think the warnings were relevant in the present case. No-one in the position of Ms Lee could have anticipated that the tractor would reverse in the way it did. The plaintiff was not close to the tractor and was walking away from it. There was no suggestion that the cable snapped and this caused the accident; 1. Mr Dow conceded in his evidence that on the third occasion when the tractor reversed and he claimed he could not stop it, that he looked over his shoulder and did not see the plaintiff before reversing. In my view, Mr Dow should not have started moving the tractor without having located the plaintiff and seen that she was not near the tractor's path. At the time, the evidence was that the plaintiff was walking on the other side of the fence. The vegetation at the time was limited as the grass had been recently slashed. If the location of the plaintiff was so significant in relation to the fence, Mr Dow should have required the plaintiff to come back on the other side of the fence and move well out of the way before reversing. 2. The crucial factual issue in the case is what caused the tractor to reverse into the fence and continue down into the creek bed. The defendant submits that the Court should accept Mr Dow's evidence that the tractor did not respond to him using the clutch and brakes for some unexplained reason and that what occurred was a "pure accident": final submissions paragraph 13. It is said that there are possibilities as to the cause of the accident which are consistent with negligence and possibilities consistent with a pure accident: final submissions paragraphs 25-29. It is submitted that the plaintiff has failed to prove breach on the balance of probabilities. 3. The plaintiff submits that it should be inferred Mr Dow negligently lost control of the tractor and that this caused the accident. The plaintiff also submitted that the possibility that what occurred was a "pure accident" should, as a matter of fairness, have been put to the plaintiff in cross-examination: Written submissions dated 1 August 2017 paragraphs 4-8. I reject this as on the evidence the plaintiff was walking away from the tractor and facing the opposite direction: T21.14. She therefore could not have seen what happened with the tractor when it reversed on the third occasion.
In her Amended Statement of Claim the plaintiff pleads res ipsa loquitor. As is well established by appellate authority, in Australia there is no shift in the legal onus of proof to the defendant to disprove the plaintiff's case if the plaintiff relies on res ipsa loquitor: Mummery v Irvings (1956) 96 CLR 99. That is the case even where, as here, the injury results from an alleged defect in a vehicle or machine exclusively in the control of the defendant: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at [87] and [108] and relevant footnotes 98, 130 and 136 cf Henderson v Henry E Jenkins & Sons [1970] AC 282.
The maxim res ipsa loquitor constitutes in substance a rule of evidence pursuant to which a breach of duty of care may be inferred from evidence of the occurrence of the accident itself: Anchor Products v Hedges (1966) 115 CLR 493. In Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Gleeson CJ and McHugh J at [25] seemed to support the view that a plaintiff may rely on the maxim if the tribunal of fact concludes that: (1) there is an "absence of explanation" of the occurrence that caused the injury; (2) the occurrence was of such a kind that it does not ordinarily occur without negligence; and (3) the instrument or agency that caused the injury was under the control of the defendant. Here, (2) and (3) seem to be satisfied but as to (1), Mr Dow has given evidence that the clutch and brakes on the tractor were faulty and did not respond to his actions. There is thus an explanation put forward. Accordingly, the maxim does not appear to apply in the present case.
I find on the whole of the evidence that the accident was caused by Mr Dow not exercising proper control over the tractor while it was reversing for the following reasons: 1. The tractor had been used previously on the day in question to pull up the first two posts without any apparent problem or defect. This is consistent with the absence of mechanical fault in the tractor; 2. There was no evidence that any investigations had been made after the accident to determine that there was any defect in the tractor; 3. Mr Dow had only had the tractor for one month at the time of the accident. While he claimed that he was familiar with the operation of the tractor it was a relatively new vehicle to him and he was inexperienced in its operation; 4. Mr Dow conceded in his evidence that his foot may have slipped off the clutch when he sought to engage it. This suggests that appropriate care may not have been exercised by Mr Dow in engaging the clutch; 5. In his evidence in chief Mr Dow said that neither the brakes nor the clutch worked. It is possible that one of the controls may well not have worked. However, the evidence was that there was a brake on each side of the tractor relating to the wheel on that side. In my view it is unlikely that there would have been a catastrophic failure of both the clutch and each of the two brakes at the same time as was claimed by Mr Dow; 6. The evidence was clear that there was a knob on the tractor within hand reach of Mr Dow which would have enabled him to turn the tractor off. Mr Dow's evidence in relation to the length of the cable was inconsistent. In the end it was an agreed fact that the cable was 10 metres long. In my view, in the light of the length of the cable and even having regard to the pressure of events at the time, there was still sufficient time available for Mr Dow to turn the engine off when he realized the tractor was not responding, if that indeed was the case. On the evidence, the tractor was reversing slowly; 7. Mr Dow did not refer to the non response of the brakes and the clutch in his signed statement given to Constable Dalati. If it had occurred as stated, it is very likely he would have mentioned the fact to the police at the time as it was a significant matter and would have been fresh in his memory. The defendant submitted that there were no inconsistencies between the police statement and the oral evidence of Mr Dow and there are often differences between statements given to police by witnesses and oral evidence given in court (final submissions paragraphs 5-8), however I do not accept that. If there had been a clear reason why the tractor had continued reversing I consider that is a matter Mr Dow would very likely have brought to police attention on 20 April 2013; 8. Having regard to all of the evidence, I think it is more likely that the clutch and brakes were not defective and Mr Dow lost control of the tractor as it was relatively new to him, possibly partly as a result of his foot slipping off the clutch. 9. In the light of all of the evidence I find that the accident was caused by Mr Dow not exercising proper control of the tractor when it was reversing. There was simply no indication, other than Mr Dow's evidence as to the circumstances of the accident, that there was any defect in the tractor. In coming to this conclusion I am very conscious that the onus rests on the plaintiff to establish her case on the balance of probabilities. In my view the plaintiff has established this factual issue to that standard; 10. The location of the plaintiff was significant when the tractor was working. Mr Dow should in my view have located the plaintiff before reversing to take reasonable steps to ensure she was in a reasonably safe location. If, as the defendant asserts, the location of the plaintiff on the creek side of the fence was dangerous or exposed the plaintiff to undue risk, Mr Dow should have seen the plaintiff was on the other side of the fence and should have insisted that she come on to his side and go well out of the way. Having regard to the fact that the tractor pushed the fence towards the creek, the plaintiff would not have suffered injury in those circumstances. The defendant submits that Mr Dow did look behind him before reversing. That is true on the evidence but he did not look behind him and see the plaintiff was in a reasonably safe location before he started the process of reversing.

[31]

Duty of care and breach of duty

I have taken into account the written and oral submissions provided by the parties.
The defendant's counsel conceded in argument that the defendant owed a duty of care to the plaintiff to exercise reasonable care in relation to the operation of the tractor on the day in question.
In my view that was an appropriate concession. An analogy may be made with the duty of care of a driver of a motor vehicle on a public road. Although the tractor was being used on a rural property, in my view Mr Dow as the driver of the tractor owed a duty of care to persons in the vicinity, including persons on foot, to take reasonable care for their safety having regard to all the circumstances of the case. Under the common law and the CLA, the standard by which reasonable care is measured is an objective and impersonal one: Manley v Alexander (2005) 80 ALJR 413 at [11]-[12]; Marien v Gardiner [2013] NSWCA 396 at [33]-[37] per Meagher JA (with whom Macfarlan and Emmett JJA agreed.
In Marien Meagher JA stated the following at paragraphs [33]-[37] "[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B. [34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12 ; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1). [35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48 ; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". [36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
In my view, in the present case Mr Dow in driving the tractor had to provide reasonable attention to all that was happening on or near the tractor including the location of the plaintiff who was the only other person who he was aware was in the vicinity of the tractor at the time.
Whether there was a breach of duty of care owed by the defendant to the plaintiff depends on the application of Section 5B of the CLA.
Section 5B of the CLA provides 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."
Whether the defendant in the present case breached his duty of care owed to the plaintiff depends upon a consideration of the matters set out in Section 5B. That is a question to be determined prospectively by reference to the evidence: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [30]-[31]; Takla v Nasr [2013] NSWCA 435 at [71]. In Takla, McColl JA at [72]-[73] stated as follows: "[72] The breach inquiry required the primary judge to identify accurately the actual risk of injury the appellant faced as it was only through the correct identification of the risk that his Honour could determine what a reasonable response to that risk would be: Dederer (at [18], [59]) per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ. His Honour identified that risk (at [57]) as MTK's insolvency preventing her from getting her money back. The appellant did not cavil with that aspect of his Honour's reasons. [73] Section 5B(1) of the Civil Liability Act required the primary judge to consider the issue of whether the respondent had breached his duty of care in failing to take the precautions for which the appellant contended by determining whether the risk was foreseeable, was not insignificant, and was such that in the circumstances, a reasonable person in the person's position would have taken those precautions."
I note the following in relation to the present case: 1. The risk to the plaintiff was foreseeable by the defendant being a risk of which the defendant knew or ought to have known. The defendant, Mr Dow, knew or should have known that if he lost control of the tractor that a risk of injury to the plaintiff, being a person in the vicinity of the tractor, was foreseeable; 2. The risk was not insignificant in the present case. Here, if the defendant lost control of the tractor, a risk of hitting the plaintiff who was in the area was not insignificant; 3. In the circumstances a reasonable person in the position of the defendant would have taken the precautions alleged against the risk of harm. The danger in the risk of injury required the defendant to be careful in his operation of the tractor having regard to the location of the fence and the creek and his understanding that the plaintiff was in the vicinity; 4. In my view the probability that harm would occur to a person in the position of the plaintiff if the tractor lost control and continued unchecked was reasonably high; 5. The likely seriousness of the harm which a person in the vicinity could suffer was high and significant, including even the possibility of death; 6. The burden of taking precautions to avoid the risk of harm was not significant. This merely involved properly controlling the tractor; 7. The social utility of the activity which created the harm was not such as to involve the defendant not exercising reasonable care in controlling the tractor.
The real question which confronts the court is the reason why the tractor went out of control.
Having regard to the factual findings which I have made above that the accident was caused by the defendant losing control of the tractor, in my view the defendant failed to exercise reasonable care to avoid a risk of injury to the plaintiff. He said he had the tractor for a month and was familiar with its operation. Mr Dow had operated it on other occasions earlier in the day without problem. In my view there was a clear breach of duty of care in the present case having regard to my factual findings. In arriving at this conclusion I have taken into account the comments of Ipp JA in Johnson v Nominal Defendant [2003] NSWCA 153 but find that I am able to infer a failure by Mr Dow to properly control the tractor for the reasons set out in my factual findings.

[32]

Causation

The relevant causation principles to apply are set out in Sections 5D and 5E of the CLA. These sections are as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
The plaintiff in the present case has the onus of proving on the balance of probabilities any fact relevant to the issue of causation.
The relevant principles to apply in relation to Section 5D are set out in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18] and Wallace v Kam (2013) 250 CLR 375 at [16]-[19].
The determination of factual causation in accordance with Section 5D(1)(a) of the CLA involves the application of a "but for" test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18].
In the current case, this involves a determination by the court of whether, but for the breach of duty of care which I have found on the part of the defendant, any loss or damage suffered by the plaintiff would not have occurred.
In my view, the defendant's loss of control of the tractor was the clear cause of the accident. But for this, the accident and the injury would not have occurred.
I do not see any reason under Section 5D(2) of the CLA why responsibility for any harm which the plaintiff has suffered should not be imposed on the defendant. Also in my view it is appropriate for the scope of the defendant's liability to extend to the harm caused under Section 5D(1)(b) of the CLA. Accordingly causation is established by the plaintiff.

[33]

Contributory negligence

The defendant in the present case asserts that the plaintiff's damages should be reduced by 100% because of contributory negligence.
Sections 5R and 5S of the CLA provide as follows: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
At paragraphs 144-146 of Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 McColl JA (with whom Ipp and Basten JJA agreed) stated as follows: [144] Pursuant to s 5R of the Civil Liability Act the principles are applicable in determining whether a person has been negligent also applied in determining whether the plaintiff was guilty of contributory negligence in failing to take precautions against the risk of the harm which befell her. The standard of care required of the plaintiff was that of a reasonable person in her position, and the matter was to be determined on the basis of what she knew or ought to have known at the time: s 5R(2). [145] Section 5R(1) reflects the "fundamental idea that people should take responsibility for their own lives and safety" and also the proposition expressed by Callinan and Heydon JJ in Vairy (at [220]) that "the duty that [an injured plaintiff] owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized": Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at [68]-[70]); per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority (NSW) [2009] NSWCA 287 (at [39]-[41]) per Beazley JA (Giles and Ipp JJA agreeing). [146] The question whether a person has been guilty of contributory negligence is determined objectively. The Council and Stojan bore the burden of proving that the plaintiff had been guilty of contributory negligence: Gordon Martin Pty Ltd v State Rail Authority (NSW) (at [42]); Joslyn v Berryman [2003] HCA 34 ; (2003) 214 CLR 552 (at [16], [18]) per McHugh J; Flower v Ebbw Vale St, Iron and Coal Co Ltd [1936] AC 206 (at 216); Commissioner for Railways v Halley (1978) 20 ALR 409 (at 419).
In Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 Basten JA stated as follows at [99]-[100]: "[99] Assuming that the requirement that people should take responsibility fortheir own lives and safety is now reflected in s 5R, and was intended tooverride the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this state. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally. [100] A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted. To approach the matter in this way is not to decline to follow applicable earlier authority of this court. Talbot-Butt long pre-dated the Civil Liability Act; it also pre-dated s 74 of the Motor Accidents Act, the forebear of s 138 of the Motor Accidents Compensation Act.
In my view there should be no reduction for contributory negligence in the present case: 1. At all relevant times the plaintiff was clear of the tractor in the sense of not being in its immediate proximity; 2. At the time that the tractor reversed out of control the plaintiff was walking away from the area where the tractor was and on the other side of the fence. The defendant submits that the plaintiff "had not walked very far at all": submissions dated 31 May 2017 paragraph 33(vi) as amended on 3 August 2017. Ms Lee's confirmation of the accuracy of the surveyor's drawing (T46.23) suggests she had walked several metres away: T45.44-46.1; Exhibit A page 249; 3. It seems that the place where the plaintiff was walking was not in line with the proposed reversing path of the tractor; 4. There was nothing to suggest to the plaintiff that the tractor would reverse out of control as occurred in the present case; 5. Even if the warnings were given as claimed by the defendant, the risk was of the steel cable snapping and hitting the plaintiff or the tractor slipping. This did not occur. The plaintiff was dragged down by the force of the fence to the creek. Any failure to follow the alleged warnings was not causative of loss; 6. In my view a reasonable person exercising care for their own safety would not have predicted that the tractor would go out of control as occurred in the present case.
In my view the plaintiff's damages should not be reduced because of contributory negligence. I would adopt the same conclusion even if I am wrong in my finding that the warnings alleged to have been given to the plaintiff by Mr and Mrs Dow had not been given.

[35]

Non-economic loss

Under Section 16 of the CLA, damages for non-economic loss can only be awarded to a plaintiff if the severity of the non-economic loss in the particular case is at least 15% of "a most extreme case".
The first step for the Court is to determine the severity of the plaintiff's non-economic loss as a proportion of a most extreme case expressed as a percentage.
Based on all the medical evidence, the plaintiff sustained a serious injury to her right hand, involving amputation of the top joint of her middle finger and significant damage to her right thumb. This has caused the plaintiff significant and ongoing pain and restriction. While she appears to be coping reasonably well, the hand injury has on the medical evidence reached its likely level of improvement although Dr McGlynn recommended further surgery to her hand. The plaintiff's hand injury has left her with continuing restrictions in her day to day living including in the performance of household duties.
The plaintiff has claimed that the accident caused an injury to her left shoulder which involves ongoing pain and which can lead to pain in her neck. Dr Giblin found soft tissue injuries to the plaintiff's neck and left shoulder (Exhibit A, page 10). Dr Bruce, the defendant's expert, could find no such injury (Exhibit A, page 26).
An MRI of the left shoulder of the plaintiff examined by Dr N Singh on 11 April 2017 demonstrated moderate full-thickness tendinopathy with a triangular tear measuring 4 x 3mm. No other cause other than the accident was suggested for this.
In my view, taking into account the medical evidence and the plaintiff's evidence of her continuing problems and pain in her left shoulder, I believe that the plaintiff does have residual problems with her left shoulder arising from the accident. I am assisted in this conclusion by Dr Singh's report.
In relation to the other problems reported by the plaintiff, including problems with her left pelvis/hip and knee, in my view the medical evidence is inconclusive on these aspects and is equally consistent with natural degeneration.
In relation to the claim of incontinence since the accident, I am not satisfied from the evidence (see the report of Dr Carey at Exhibit A, page 121) that this is necessarily caused by the accident.
Taking into account all the evidence, I assess the plaintiff's percentage of a most extreme case under Section 16 of the CLA as being 25%. This equates to 6.5% of the current sum of $605,000 being $39,325 which pursuant to Section 16(4) is to be rounded up to $39,500. The plaintiff should be awarded $39,500 for non-economic loss.

[39]

Future commercial services

The clear evidence from the plaintiff, which I accept, is that she has difficulties with her household tasks and that if awarded an amount of money she would obtain commercial help. The medical evidence differed in the number of hours as to future help. I think a much better guide is the plaintiff's own assessment. She was cross-examined with a suggestion that only one hour of commercial help was required but she assessed it at two hours. I thought the plaintiff was very reasonable in this assessment.
The defendant submits that no report has been served by an occupational therapist, quantifying the plaintiff's alleged needs for domestic assistance. Reliance is placed on the comments of Basten JA in Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [83]. Accordingly, it was submitted that I should place little weight upon hourly calculations of required domestic assistance provided by medical practitioners. I agree with this submission on the basis of Basten JA's comments.
In my view, the amount to be awarded to the plaintiff should be calculated on the basis of her evidence of the need for future commercial housekeeping assistance for two hours per week at $46.80 per hour (Exhibit A page 213). The plaintiff is currently 65.5 years old. I think it likely that she will require this assistance for the rest of her life. However, I also think it likely that natural progression in the plaintiff's age would have meant that she would have needed this assistance from say age 85 in any case. Accordingly I allow the future commercial assistance for a period of 20 years.
I accordingly calculate the commercial assistance for 20 years for which the multiplier at 5% is 666.4. Accordingly the calculation is 2 x $46.80 x a multiplier of 666.4 = $62,375.04.
A summary of the damages I have allowed is as follows: Non-economic loss $39,500.00 Past treatment expenses $5,979.46 Future out of pocket expenses $12,000.00 Past care $0.00 Future commercial services $62,375.04 Total $119,854.50

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