Seeing through the mist – dealing with spray drift claims
Jun 2013 |Aerial spraying, also known as crop dusting, involves the use of aircraft to spray crops or agricultural land with fertilizers, pesticides or fungicides. The propensity for the substance being applied aerially to 'drift' is well known, and when applying pesticides can lead to unintended damage on neighbouring land. Claims arising from such situations are commonly referred to as spray drift claims, and there have been a number of recent decisions which have provided guidance in relation to the principles which apply in such claims.
Whilst each case will turn on its respective facts, generally spray drift claims involve three sets of parties, the owner(s) of the property which has commissioned the aerial spraying, the company / individuals performing the aerial spraying and the owner(s) of the land or property which is damaged by the spray drift.
The plaintiff in a spray drift claim may have different causes of action against the different parties. Against all parties, the plaintiff can pursue a cause of action in negligence. In addition, against the owner or operator of the aircraft, the plaintiff may be able to pursue a claim under the Damage by Aircraft Act 1999 (Cth) (DBAA).
A number of recent decisions which will be explored give practical examples of the issues that can arise in such claims and how these issues are to be resolved. The first is the decision in Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd.1 In that decision the first appellant, Meandarra, conducted a business which included aerial spraying. The second appellant, Hill, was Meandarra's managing director and chief pilot. Together with another pilot engaged by Meandarra, Baker, aerial spraying of herbicide was performed over two properties, Sherwood and Wallumba. Four days after the spraying, yellowing and damage was seen on the respondent's (the plaintiff at first instance, Geldard) cotton crops, which were located on properties about 20 kilometres south of Sherwood and Wallumba.
By the time the matter proceeded to trial, the claim had settled against all parties except Meandarra and Hill. At first instance, Judge Lyons found in favour of the plaintiff. It was held without any great contention that a duty of care was owed by Meandarra and Hill, and that the duty of care was breached given a finding was made that the spraying operation was conducted in unsuitable weather conditions. The primary trial was fought predominantly on the issue of causation, namely whether the plaintiff had established on the balance of probabilities, any spray drift which may have occurred was responsible for the damage sustained. Reliant upon the expert evidence available, the trial judge found that it did.
A further issue which arose in the initial proceedings was that of proportionate liability. Although the claim had been settled against the other parties, Meandarra argued that regardless, the other defendants to the action were still 'concurrent wrongdoers' and, therefore, as the claim was an 'apportionable claim' as defined in the Civil Liability Act 2003 (Qld), damages should be reduced to 'an amount reflecting that proportion of the loss or damage claimed that the court considers just and equitable having regard to the defendant's responsibility for the loss or damage'.
This argument was rejected by the trial judge. It was found that Meandarra and not the plaintiff bore the onus of proving the existence of concurrent wrongdoers, something which they had failed to discharge (a situation which was no doubt made more difficult by the absence of the other defendants at the trial of the action).
The matter was subsequently appealed to the Queensland Court of Appeal. All aspects of the trial judge's decisions were challenged. In relation to the duty question, criticism was raised of the trial judge's reference to 'a non-delegable duty of care' and 'a duty to ensure', as opposed to a duty to exercise reasonable care. Whilst as will be seen below this is a critical issue, in the context of this decision, the Court of Appeal dismissed this challenge, noting that the preponderance of the trial judge's reasons suggested the matter was in fact decided on the premise that a standard duty of care was owed (as opposed to a more stringent non-delegable duty).
In relation to the issue of breach of duty, it was argued that the standard of foreseeability had been diluted by the Civil Liability Act 2003 (Qld), and that a breach of duty had not been established as the risk which materialised was not 'a not insignificant risk' (the use of a double negative is as per the legislation, in which its use was deliberate). Although the Court of Appeal accepted the general proposition that the test of foreseeability under the Civil Liability Act 2003 (Qld) was more demanding than the common law test of 'not far-fetched or fanciful', it was held nevertheless that the plaintiff had satisfied the Civil Liability Act 2003 (Qld) criteria. Importantly, it appeared to be accepted by the Queensland Court of Appeal that the duty owed was not non-delegable in nature. In relation to causation, the Court of Appeal accepted the findings of fact made by the primary judge permitted a finding of causation to be made.
Finally, in relation to the issue of proportionate liability, the Court of Appeal affirmed the trial judge's findings that the onus of proving the existence of a concurrent wrongdoer rested with the defendant at first instance, something which it had failed to discharge and, accordingly, the plaintiff was entitled to a full award of damages against the remaining defendants.
The more recent New South Wales case of Bootle v Barclay2 provides a more practical example of the specific factual issues which arise in the determination of spray drift claims. In that claim the plaintiffs at first instance, the Barclays, owned a property known as Kilbirnie. A neighbouring property known as Bonna, was leased for the purposes of farming by Mr Bootle and his company, Bootle Bros Management Pty Ltd (collectively Bootle). Macquarie Valley Agricultural Services Pty Ltd (MVAS) operated an aerial spraying operation and were engaged by Bootle to perform spraying to Bonna. The pilot who actually performed the spraying was a Mr Shapely. It is important to note that at around the same time as the aerial spraying took place, ground spraying of similar chemicals had been performed by both the Barclays and Bootle.
It was alleged by the Barclays that the spraying conducted on Bonna drifted onto Kilbirnie causing damage to paddocks sewn to wheat. A claim was commenced against all parties in negligence. In addition, claims were pursued against MVAS and Shapely under the DBAA. As an initial threshold issue, it was determined that part of the claim could not succeed as the plaintiff had not established the damage sustained was caused by the aerial spraying (as opposed to the ground spraying). The claim was subsequently confined to those areas which the trial judge accepted had suffered damage as a result of the aerial spraying.
In relation to the negligence claim, the trial judge ultimately found in favour of the plaintiff as against all defendants on the basis the prevailing weather conditions on the day were unsuitable for aerial spraying. There was a great deal of discussion regarding the nature of the duty of care owed by Bootle, in particular whether it was non-delegable in nature. Although finding that it was, the trial judge also found that the damage caused was preventable by all parties, including Bootle, as the failure related to allowing spraying to occur in unsuitable weather conditions, as opposed to a specific failure of the pilot performing the spraying over which Bootle could exercise no control.
The claim against MVAS and Mr Shapely under the DBAA was also successful. In so finding, the trial judge found the word 'thing' was wide enough to encompass a noxious spray deliberately released from an aircraft and that the reference in s 10(1)(c) of the DBAA to a thing that 'dropped or fell from an aircraft in flight' was not confined to inadvertent acts or omissions and did in fact extend to deliberate acts, such as the spraying of pesticides or herbicides.
The decision was appealed to the New South Wales Court of Appeal. Counsel for Bootle argued that the appeal raised important questions as to the applicability of the High Court decision of Burnie Port Authority v General Jones Pty Ltd3 to crop spraying activities of the kind regularly conducted in the agriculture sector.
Carter Newell believes this is a critical issue as if the duty of care owed by the equivalent of Bootle in any spray drift claim is non-delegable in nature (on the Burnie rationale), that party will be prevented from arguing that it delegated or discharged the duty of care owed by engaging an otherwise competent contractor to perform the aerial spraying.
Unfortunately the Court of Appeal did not conclusively determine this issue, as based upon the narrowing of the issues on appeal, in practice the issue did not fall to be determined. The Court of Appeal acknowledged that for a specific determination to be required, it would need to be found that:
- Bootle owed the plaintiff a duty of care and did not directly breach the duty of care owed; but
- MVAS or Shapely did breach the duty of care owed.
The Court of Appeal noted the basis for the appeal was that the finding of negligence generally by the trial judge could not stand and if that submission was correct, whether or not the duty owed by Bootle was non-delegable in nature was not relevant, as either way the claim would fail. Conversely, if the trial judge's finding that Bootle was directly negligent was upheld, the issue was irrelevant (as Bootle's exposure would derive from its direct negligence, as opposed to a breach of a non-delegable duty on account of the negligence of MVAS or Shapely).
The Court of Appeal overturned the trial judge's finding of negligence. Although the Court of Appeal did not expressly determine the issue of whether the duty of care owed was non-delegable in nature, it was noted such a finding does not entitle a plaintiff to succeed without proof of fault in any event. The plaintiff would still need to prove a failure on the part of someone to take reasonable care (noting the nature of a non-delegable duty is not to guarantee safety, but merely to ensure that reasonable care is taken).
The Court of Appeal found the plaintiff failed to establish a breach of duty of care in the aerial spraying operation. The Court of Appeal found that no legitimate criticism of the aerial spraying operation could be made. In particular, contrary to the trial judge's findings, the Court of Appeal concluded the weather conditions at the time of spraying to be ideal based upon the expert evidence generally and the evidence (based upon 30 years of experience) of Mr Shapely. The Court of Appeal also noted the trial judge himself had not found fault with the actual conduct of the spraying operation such as, for example, 'with the manner of the piloting, choice of droplet size and nozzle angle'.
The verdict against Bootle was accordingly overturned. The Court of Appeal noted that whether the verdicts against MVAS and Shapely could be sustained would depend upon whether the verdicts against them under the DBAA could be maintained.
Insofar as MVAS was concerned, it was argued the verdict could not be sustained as the aircraft's owner, Bundambar Pty Ltd, was not a trading corporation (within the meaning of section 51xx of the Constitution). The Court of Appeal rejected this argument, noting the aircraft was leased to MVAS for reward, and had been for over two years prior to the incident. The Court of Appeal concluded the trial judge's finding the DBAA supported a verdict against MVAS was correct.
Insofar as Mr Shapely was concerned, the Court of Appeal overturned the trial judge's decision. In finding the DBAA did not support a claim against Mr Shapely, the Court of Appeal concluded the trial judge was in error to conclude Mr Shapely was not an employee of Air XS Pty Ltd (a company of which Mr Shapely was a director and shareholder). The Court of Appeal concluded based upon the finding it had made, Mr Shapely was entitled to the protection afforded by s 7 of the DBAA which states that where an employee of a person uses an aircraft in the course of his or her employment, then for the purpose of the DBAA, the person (i.e. the employer), and not the employee is taken to use the aircraft.
The final case to consider is the decision of NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd.4 The facts of that claim follow a similar theme. The plaintiff was the owner of a property which it asserted was damaged by the aerial spraying operation performed on a nearby property. The defendants encompassed the owner of the property upon which the aerial spraying was being performed and the company which in fact performed the aerial spraying.
The judgment is particularly large, and Carter Newell does not propose to address all of the facts and refer to all of the issues. The decision is raised as despite finding for the defendants on the grounds of a failure by the plaintiff to establish the aerial spraying was responsible for the damage sustained, the trial judge provided an opinion on the nature of the duty owed by the owner of property upon which aerial spraying is being conducted and also provided detailed analysis on the operation of the DBAA to claims involving alleged spray drift.
In relation to the issue of the nature of the duty of care, Judge Harrison concluded that 'a non-delegable duty of care would not arise simply because one party to a joint task left it to the other to perform certain aspects of that task. In this case, the first and second respondent left the whole task to the airplane operator, not just aspects of it. It was reasonable and entirely appropriate for the first and second respondent to do so because neither was capable in its own right of performing such a task'.
In relation to the application of the DBAA, Judge Harrison reached similar conclusions to those affirmed by the Court of Appeal in Bootle v Barclay, noting 'there was nothing in the words of ss 10 and 11 that limited liability to things that caused damage as the result of having inadvertently fallen or dropped from an aircraft'.
Conclusion/Principles
The following conclusions / principles are drawn from the recently decided spray drift claims discussed above:
- In any spray drift operation, both the party who owns or occupies the property upon which the operation is being conducted, and the party conducting the operation, owes a duty of care to all persons to whom a risk of harm was foreseeable (either under the common law test or more recently the applicable civil liability legislation (depending upon the timing of the operation));
- Although perhaps not concluded with certainty, it is likely the duty owed by the owner or occupier is not non-delegable in nature, such that in the appropriate circumstances it can be delegated or discharged by the engagement of a competent aerial spraying contractor;
- The plaintiff will always bear the onus of proving both a breach of duty of care and causation / damage;
- In claims involving multiple defendants, if any of the defendants want the protection afforded by any applicable proportionate liability legislation, that defendant bears the onus of proving the application of that legislation; and
- Chemicals deliberately sprayed by an aircraft in a spray drift operation would satisfy the criteria in s 10(1)(c) of the DBAA as 'an impact with a person, animal or thing that dropped or fell from an aircraft in flight'.
In light of the above conclusions drawn from the recent decisions, it is speculated as to whether potential plaintiffs will continue to pursue claims against the owners and/or occupiers of the premises upon which the aerial spraying operation was being conducted and may alternatively proceed only against the company conducting the operation. The basis for this is twofold. Firstly, it will be more difficult to establish negligence against the owner and/or occupier of the premises upon which spraying is being conducted, given in most instances that party will be entitled to argue their duty has been delegated or discharged by the engagement of a competent contractor.
Secondly, for claims in which the DBAA would otherwise apply, pursuit of the company performing the aerial spraying is the path of least resistance, given that by virtue of s 11 of the DBAA, the prospective plaintiff will not need to prove negligence, and will merely need to prove the aerial spraying has caused the damage (irrespective of whether reasonable care was taken in the aerial spraying operation).
(1) [2012] QCA 315.
(2) [2013] NSWCA 142.
(3) (1994) 179 CLR 520.
(4) [2013] NSWSC 309.
