Are you catching my drift? The Supreme Court of Victoria looks at nuisance and negligence in an agricultural spray drift claim

Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768

Key points:

• In spray drift disputes, claims in nuisance require proof that there was a substantial and unreasonable interference with the plaintiff’s use of the land. Where one farmer leases land to another for a different agricultural use, herbicide spray drift from the lessor’s land is likely to be regarded as an unreasonable interference.
• In this context, a defendant is unlikely to have discharged its duty of care in a negligence claim if damage occurs as a result of instructing its spraying contractor only to be mindful of the spring onions and then traveling interstate leaving the spraying to occur unsupervised.
• Plaintiffs who have kept a close eye on a growing crop are in a stronger position to rebut allegations that the crop damage had other causes.
• Following the recommendations of a local agricultural chemicals supplier will not protect a defendant from a negligence claim where the recommended usage was contrary to the requirements of the Agricultural and Veterinary Chemicals (Control of Use) Act (Vic) (the Act) and neither the defendant farmer nor its contractor were certified under that act.

The facts

The plaintiff (Butler) had a spring onion supply contract with Coles. Butler started growing spring onions in Swan Hill (Victoria) in Winter 2014, leasing 30 acres of land from the defendant (Burrell) for this purpose.

Burrell grew lucerne on adjoining land. Lucerne dies back over winter and re‑sprouts in spring. Because of this, lucerne growers generally spray herbicide in winter to put down weeds, leaving the land clear for the new crop to sprout.

Therefore in July 2014, Burrell engaged a contractor to spray the adjoining land, supplying chemicals for the purpose. Burrell purchased chemicals at the recommendation of the local supplier, however one of the chemicals was not registered for use for lucerne at the time under the Act while the other chemical was recommended to be used at lower concentrations than occurred. Non-recommended uses are only permitted upon the issue of a special permit that was not obtained by either the contractor, who was experienced in agricultural spraying, or Burrell. The contractor was told to be mindful of the spring onions but was not otherwise supervised.

Butler kept a close eye on its growing crop and by 28 July 2014, the spring onions were ready for harvest. On that day, Burrell’s contractor sprayed. There was wind for a large part of the day blowing and gusting in the direction of the spring onion crop.  There was evidence that spray drift had been seen during the day. Damage to the crop was immediate and the spoilage patterns observed on the spring onions were consistent with the spray drift that had been observed.

All the unharvested crop was damaged, with much of it unsuitable for commercial sale. As a result, Butler had to source spring onions from Queensland at significant expense, leading to financial loss.

Butler brought a claim in nuisance and negligence against Burrell in the Supreme Court of Victoria.

The law

Claims in nuisance require that the plaintiff show that there has been a substantial and unreasonable interference in the plaintiff’s use of the land leading to loss and damage.  Such use includes occupation for agricultural purposes.

In contrast, claims in negligence require the existence of a duty of care, breach of duty, that is, the person subject to the duty must take such care as in all the circumstances was reasonable to ensure that the other party is not injured or damaged by their action or inaction as the case may be. Finally, loss and damage must flow from the breach.

Negligence is not an essential concept in nuisance, but foreseeability is relevant in the sense that the defendant will not be liable if the harm was unforeseeable. But once harm is foreseeable, the evidentiary burden shifts to the defendant to show that the interference was reasonable. Assessing what is unreasonable can involve:

• where there are competing uses, weighing various public interest factors regarding each use; and
• asking whether the defendant had taken reasonable precautions to prevent the harm.

The decision

In the Supreme Court of Victoria, Justice Richards found the defendant liable in both nuisance and negligence.

Generally, spray drift cases fail on either proof of causation (that is, the link between the conduct and the damage) or whether the constraints of one land use are an unreasonable constraint upon adjoining land uses. However, because Butler had kept such a close eye on its growing crop, it was able to give clear evidence that until 28 July 2014 no crop damage had been noticed, countering attempts by Burrell to argue that Butler itself had caused the damage through its own spraying.

Further by leasing the land to Butler in full knowledge of its proposed use, it was difficult for Burrell to contend that spray drift was not an unreasonable interference from Burrell’s land or that no duty of care was owed (and, in fact, a duty was conceded). Indeed, by leasing the land in these circumstances, it could be said that Burrell had consented to taking the risk of having a herbicide sensitive crop next door (although this point was not made by Justice Richards).

In addition, Justice Richards found that Burrell had not taken reasonable precautions and had not discharged its duty of care because:

• Burrell’s instructions to the contractor were inadequate and there was a lack of supervision;
• Chemical use was contrary to the manufacturer’s recommendations and the correct permits (that may have authorized a non-compliant use) had not been obtained;
• Neither Burrell nor its contractor held agricultural chemical user permits which while not determinative, was evidence of a lack of care given the potential for a lack of expertise; and
• The contractor did not set up the boom sprayer to minimize drift nor wait for the wind to drop or change direction.

The fact that Burrell had acted upon the recommendation of the local chemical supplier did not relieve it from compliance with the Act (or from being found to be in breach of duty), where the spring onions were at substantial risk given the closeness to harvest and inability to grow through any damage.

Ultimately, Butler was awarded damages calculated by reference to Justice Richards’ estimate of a fair price that would have been paid by Coles, less an amount received for the sale of the salvageable spring onions and savings in labour costs by not harvesting all the crop. Justice Richards then added the loss incurred in importing Queensland spring onions and some pre-litigation disbursements to this sum. In total, $1,346,570 in damages was awarded to Butler.

Takeaways

Butler was successful but matters may have fallen out very differently had:

• Butler not been able to give clear evidence of the state of the crop just prior to the spray drift event;
• The spring onions not been inspected by an agricultural expert shortly after the event therefore discounting arguments about some other supervening event after the 28 July 2014 but prior to inspection;
• Burrell had not had knowledge of the spring onions and had not “agreed” to them being grown on adjacent land;
• Burrell’s contractor had been properly certified with the correct permits in place; and
• Precautions had been taken to allow for the wind including halting spraying during the windiest parts of the day.

Finally, this case highlights that the existence of a supply contract and proof of attempts to mitigate a loss will assist a court in calculating damages.