Gay v Pidgeon

[1994] QCA 303

IN THE COURT OF APPEAL	[1994] QCA 303
SUPREME COURT OF QUEENSLAND	Appeal No. 14 of 1994
Brisbane
Before	McPherson J.A. Davies J.A. Williams J.

[Gay & anor. v. Pidgeon & ors.]

BETWEEN:

DAVID JOHN GAY and APRIL GAY

(Plaintiffs) Respondents

AND:

IAN CLIFFORD PIDGEON and MALCOLM CLARENCE

PIDGEON (First Defendants) Appellants

AND:

CLIFFORD HAROLD PIDGEON and MYRA HAY PIDGEON

(Second Defendants) Appellants

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22/08/1994

The appellants were the unsuccessful defendants in an action in the District Court for damages and an injunction for negligence, nuisance and on the basis of strict liability.

The learned trial judge gave judgment for the respondents for $79,550, being $67,416 damages and $12,134 interest at 6% for three years, and granted two injunctions; one ordering that the appellants be restrained from causing, committing or allowing any accumulation of sawdust, wood chips or wood scraps on their property in such a location as was likely to result in contamination of the waters of the adjoining creek; the other obliging them to drain, clean and fill with properly compacted clay or soil two clay pits on their property.

The appellants appeal against their liability to damages and the injunctions on each of the bases found by the learned trial judge. In particular they contend that the respondents failed to establish that any act or omission of theirs caused the damage complained of; and that damage of that kind was not reasonably foreseeable. The respondents concede that they are not entitled to hold the judgment in their favour on the basis of strict liability in the light of the recent decision of the High Court in Burnie Port Authority v. General Jones Pty Ltd (1994) 68 A.L.J.R. 331.

At the relevant time, which was from 1989 to 1992, the appellants conducted a sawmilling business on land at Dalveen via Stanthorpe. The land was adjacent to and drained into a creek. Downstream of the appellants' premises, about 700 metres away, was the respondents' farm upon which, at that time, they grew spring onions commercially. The creek ran through their land which was about 12.5 hectares in size. The creek fed into a dam on the respondents' land, the capacity of which was about 5 million litres. Between the appellants' and the respondents' premises was another property owned by Mr Butler, who had a much smaller dam, of about 1 million litre capacity, on the creek. Mr Butler's land was used primarily for grazing though at some stage he grew vegetables for his own use.

In late 1989 and early 1990, and for some years before that, there was on the appellants' land a large sawdust heap. There were also on the land, relevantly, two former clay pits which were substantially filled with water. Both were situated downhill from the sawdust heap but above or level with the creek, so that, in time of heavy rain, water flowed over the appellants' land to the sawdust heap, thence to the clay pits and thence to the creek.

Between December 1989 and April 1990 and again in February 1992 there were heavy rains in the area and the respondents alleged, and the learned trial judge found, that during both of those periods phytotoxins and ferrous tannates leached from the sawdust heap into the clay pits or one of them, then into the creek and the respondents' dam from which the respondents irrigated their crops. It was alleged and found that the phytotoxins damaged the crops by causing some not to germinate and stunted growth in others; and that the tannates deposited a red looking iron compound on the leaves of mature plants. It was contended by the respondent and found by the trial judge that the loss of profit by the respondents in consequence of this damage in both of those periods totalled the above amount of damages.

The appellants did not dispute below or in this Court that phytotoxins and tannates leached from the sawdust heap at relevant times or that they reached the respondents' land.

But they contended that they did not reach it in sufficient strength to cause the damage found to have existed.

It should be said at the outset in this respect that there was no other likely cause of the leaf staining than ferrous tannates and no other likely source of ferrous tannates than the appellants' sawdust heap and clay pits. The sawdust was a source of ferrous tannate and the clay pits were found to have sawdust and ferrous tannate solution in them. Decaying vegetable matter is also a source of ferrous tannate, but no such decaying vegetable matter was identified in either of the periods referred to as a possible cause of the leaf staining. Moreover, during both of these periods the water in the creek downstream of the appellants' premises was very much darker than that upstream of it and the respondents' dam emitted a strong odour. Both the dark colour and the odour were consistent with the presence of ferrous tannates.

There was therefore, in our view, a strong case of causation of discolouration of the leaves of the respondents' spring onions by leaching of ferrous tannates from the appellants' sawdust heap during both of the periods referred to and his Honour was correct in finding that.

It was submitted that the phytotoxins which reached the respondents' land could not have been of sufficient strength, by the time they reached the respondents' dam, to cause the damage alleged and found to have been caused; that is, in some cases, failure to germinate, in others stunted growth and death of plants. Mr Whitehouse, a soil chemist called by the respondents whose evidence the trial judge accepted, said that phytotoxins would not be toxic to plants such as spring onions when diluted to 1 part in 100. The appellants submitted that, on the evidence of the catchment areas of the appellants' land above the sawdust heap and of the area upstream of the appellants' land, phytotoxins from the appellants' property could not reach the dam in that concentration. It was said that the maximum amount of water into which the phytotoxins from the sawdust could have leached was runoff from approximately 2,000 sq. metres of the appellants' land. It was then said that the catchment area of the creek above the sawmill was about 4 million sq. metres. It was then said that it was reasonable to accept that any leachate entering the creek at the sawmill would be diluted in the proportions of 2,000 to 4 million, or 1 in 2,000. Consequently, it was said, the phytotoxins could never reach a concentration greater than 1% in the respondents' dam.

No attempt was made by either side to take levels, either in order to determine the catchment area for water flowing to the sawdust heap or the clay pits, or for the purpose of determining the catchment area of the creek upstream of the appellants' land. As to the former, all that seems to have been done is that the male respondent estimated the area of the appellants' land "covered by sawdust and bark" as at least 2,000 sq. metres. His Honour found that water which fell on this area ran around and through the sawdust heap.

But he did not seek to confine the area which constituted the catchment area of the sawdust heap to this area. It was not relevant to his reasons to do so. There was evidence from which it might have been inferred that this catchment included land across a road from the appellants' land; the male respondent, on a number of occasions, saw water running across this road into the appellants' land.

As to the catchment area upstream of the appellants' property, the male appellant said he estimated this by guesswork. It is true that the male respondent, when pressed in cross-examination, accepted this but neither was an engineer or a surveyor or otherwise in any way qualified to estimate catchment areas. Moreover, the extent to which a catchment area will yield runoff water to a lower level will depend on the surface and underlying soil characteristics. There was no evidence of what these were.

Nor was there any evidence of the respective gradients of the two catchment areas or of whether rain fell evenly over them at relevant times. These matters would undoubtedly have affected the extent to which, at any time, leachate from the sawdust heap would have been diluted by water coming from upstream of the appellants' land.

And finally in this respect, the calculation assumes that the concentration of phytotoxin in water in the respondents' dam was the same in each part of the dam and at any time during the relevant periods; whereas it is plain that that would not have been the case, particularly having regard to the possibility of differential rainfall and differential gradients.

The above criticisms indicate the unreliability of the calculation and that consequently little weight should be placed on it. The learned trial judge thought it not possible on the available evidence to determine the quantities of rainwater which could sufficiently dilute the leachate to a concentration of 1 in 100. If, as we think, his Honour meant by this that he was unable to conclude from the evidence about catchment areas whether there was, at any time, sufficient water, in proportion to phytotoxins, in the respondents' dam to dilute the solution to those proportions, we agree with that view.

Two other factors relevant to causation should now be mentioned. The first is that, in late 1989, coinciding with the onset of heavy rains, the appellants cut into the top of the sawdust heap and removed part of the top, leaving it with a crater-like look and thereby removing a substantial part of its external crust which to some extent had inhibited water from entering the sawdust heap. This resulted in the sawdust within the heap being thoroughly soaked. The expert evidence was that it was fresh sawdust, that is sawdust which had not been exposed or long exposed to the elements, which was most highly toxic when mixed with water. The other evidence relevant to causation is that with respect of other possible causes of the damage said to have been caused by the phytotoxins.

Only two were suggested, methylbromide toxicity and acidification of the soil from high levels of fertiliser. As we said earlier, it was not suggested that either of these could have caused the leaf staining, or that there was any cause of it other than ferrous tannates.

The respondents applied a low level of methylbromide to the soil prior to planting. They had done this for many years without problems. No reason was given why it would cause problems in either of the periods in question when it had not done so before. On the contrary, the combination at relevant times of heavy rains and good drainage of the respondents' farm would have been more likely to dissipate its effect.

Acidification from excessive use of fertiliser was rejected as a possible cause by Mr Whitehouse because, in effect, even excessive use of fertiliser would be unlikely to cause the severe acidification necessary to cause this damage. In any event, acidification was put to Mr Whitehouse as a cause on the assumption that crops were not rotated, the same soil being fertilised year after year; whereas there was no difference in the level of damage in those beds which had been used in the previous season and those which had never previously been used for growing vegetables, and so never fertilised before.

Whilst his Honour did not exclude either of these as possible contributing factors, he excluded them, quite rightly in our view, as substantial causes of the damage.

The appellants submitted that Butler had no apparent damage from phytotoxins or ferrous tannates and it would be unlikely, if they came from the appellants' land that, if the respondents suffered that damage, Butler would not also do so. There are two answers to this. The first is that Butler was not a commercial vegetable grower. He used his land mainly for grazing. He grew only a few vegetables for his personal use and some fodder crops for his stock. And he may have ceased growing vegetables as early as February 1990. The second is that he did have trouble getting carrots to grow from seed and he had had discolouration of leafy vegetables. It was rather that Butler did not attribute these problems to the phytotoxins or ferrous tannates which emanated from the appellants' land.

There were a number of factors which, in our view, correctly led the learned trial judge to the conclusion that the poor germination and stunted growth were caused by phytotoxins which leached from the appellants' sawdust heap. The first is that, as the appellants conceded in this Court, both phytotoxins and tannates from the appellants' land reached the respondents' dam. The second is the coincidence in time of the breaking of the crust of the sawdust heap in later 1989, the onset of heavy rains and the occurrence of the damage; and the coincidence again in 1992 of the build up of the sawdust heap, the onset of heavy rains and the damage.

And the third is the absence of any likely competing causes of that damage. These factors are together, in our view, sufficient to outweigh the unreliable evidence about catchment areas and consequent proportional dilution of the phytotoxins. We therefore conclude that the learned trial judge was correct in finding that the cause of the damage to the respondents' crop was phytotoxin poisoning and ferrous tannate staining and that both of these were caused by water running from the sawdust heap or, in the latter case, the clay pits, into the respondents' dam.

We turn now to the question of foreseeability. Different considerations may determine the answer to that question, at least insofar as it concerns foreseeability of poisoning, before and after February-March 1990 when the male appellant had conversations and correspondence with Mr Bevis, an officer of the Department of Environment and Heritage.

Before that time the appellants submitted that there had been a stockpile of sawdust on the land for many years without any complaint. They submitted that no loss or damage to crops downstream of their property was therefore foreseeable.

However, even prior to that time it was obvious that the water downstream of the appellants' land was very much darker than that upstream of it and that the dark colour in it resembled that in the clay pits on the appellants' land.

We think it ought to have been plain to the appellants that the staining in the water downstream of their land was caused by something which was occurring on their land. It should also have been apparent, we think, that that staining could, if the water were sprayed onto crops, stain those crops. The appellants must have known of the respondents' dam and ought to have foreseen the possibility that the respondents were growing crops. We therefore think that damage of the kind caused by leaf staining ought to have been foreseeable to the appellants before the above date.

It is also strongly arguable, in our view, that, prior to that date, the appellants ought also to have appreciated that water leaching from the sawdust heap might be poisonous to crops. Those familiar with gardening would know that fresh sawdust should not be placed on garden beds and there was evidence that the appellants grew a variety of vegetables for their own use. However, we would not be prepared to conclude on that evidence that it was foreseeable that damage such as failure to germinate or stunted growth could be caused by allowing water to come into contact with the sawdust and then to run into the creek.

On 13 February 1990 Mr Bevis visited the appellants' property and spoke to the male appellant. Either in that conversation or in a telephone conversation shortly afterwards, Mr Bevis told the male appellant that the dark water in the water holes was "rather toxic". In a letter of 8 March 1990 to Mr Pidgeon he referred to the discharge of leachate from the sawdust heap to the creek during and following wet weather periods, referred to the risk of water pollution and required him to take immediate action to eliminate the discharge. The appellants took some action within a couple of weeks of that letter; they removed sawdust and erected an earth barrier to stop water and sawdust from entering one of the clay pits and "to a degree" the other. Nevertheless in times of moderately heavy rain, water flowed over this barrier and it was later breached.

Moreover, the appellants commenced once again to stockpile sawdust in the same place and a photograph taken in February 1993 shows a sawdust heap of about the same size as had existed prior to its removal in March 1990.

From, at the latest, the time of the male appellant's telephone conversation with Mr Bevis shortly after 13 February 1990 the appellants ought to have known that water leaching from the sawdust heap or discharging from the clay pits into the creek might be toxic. For at least a fortnight after they knew that they allowed the sawdust to remain on their land during heavy rain in circumstances in which it was foreseeable, we think, that that toxic water would reach the respondents' land and be used by them for irrigation from their dam. And even though they removed the sawdust pile and built the earth barrier, it is unlikely that the earth barrier, even while it lasted, prevented water from entering the clay pits or prevented water in the clay pits from reaching the creek. Moreover, the breach of the earth barrier and the build up of sawdust which commenced again soon after the removal of the first heap, increased the likelihood that toxic water would flow into the respondents' dam.

The result is that the appellants are liable for the whole of the damage caused by leaf staining during both periods; but they are liable for the damage caused by failure to germinate, stunted growth and death of plants only after, at the latest, shortly after 13 February 1990. That includes, of course, the whole of that kind of damage caused in 1992.

The respondents, in each season, planted their crop progressively throughout the season. No attempt was made in evidence to distinguish between damage by loss of germination or stunted growth or death of plants which occurred prior to mid February 1990 and that which occurred after that date. Nor was any attempt made to distinguish between damage caused by phytotoxin poisoning and that caused by ferrous tannate staining. Yet the award of damages should be reduced by an amount representing the damage caused by phytotoxins prior to mid February 1990.

Doing the best we can we would reduce the total award of damages by $15,000 making the award $52,416 upon which the respondents are entitled to interest at 6% for three years making a total of $61,850.88.

As to the appeal against the injunctions granted, it is apparent that we think that his Honour was correct in holding that the leaching of phytotoxins and ferrous tannates from the appellants' sawdust heap into the adjoining watercourse was a substantial cause of the damage suffered by the respondents. It is also apparent that there is a real risk that the respondents will sustain damage in the future as a result of leachates from further accumulated sawdust entering the clay pits and subsequently the creek.

Indeed, it was common ground that even if the damage sustained had not been reasonably foreseeable, injunctive relief may still be available where it had become foreseeable that their act or omission was causative of injury. We therefore think that the injunctions imposed below should remain.

The appeal should therefore be allowed only to the extent of setting aside the judgment for $79,550. In lieu, the respondents should have judgment for $61,850.88. We would also order that entry of that judgment be dated as of the date of the judgment below, that is 17 December 1993. As the respondents were substantially successful, they should have their costs here and below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 14 of 1994
Brisbane [Gay & anor. v. Pidgeon & ors.]
BETWEEN:

DAVID JOHN GAY and APRIL GAY

(Plaintiffs) Respondents

AND:

IAN CLIFFORD PIDGEON and MALCOLM CLARENCE

PIDGEON (First Defendants) Appellants

AND:

CLIFFORD HAROLD PIDGEON and MYRA HAY PIDGEON

(Second Defendants) Appellants

____________________________________________________________

_____

MCPHERSON J.A.

DAVIES J.A.
WILLIAMS J.
____________________________________________________________

_____

Judgment delivered 22/08/1994

REASONS FOR JUDGMENT - THE COURT
____________________________________________________________
_____

APPEAL ALLOWED ONLY TO THE EXTENT OF SETTING ASIDE THE JUDGMENT FOR $79,550. IN LIEU, THE RESPONDENTS SHOULD HAVE JUDGMENT FOR $61,850.88.

ORDER THAT ENTRY OF THAT JUDGMENT BE DATED AS OF THE DATE OF
THE JUDGMENT BELOW, THAT IS 17 DECEMBER 1993.
THE RESPONDENTS TO HAVE THEIR COSTS HERE AND BELOW.

______________________________________________________________

CATCHWORDS:	NEGLIGENCE - CAUSATION - appellants operated a sawmill - large accumulation of sawdust on its land - after heavy rain leachate from sawdust ran into clay pits and then into a creek which fed into respondents' dam - respondents grew spring onions commercially and used water from the dam to irrigate plants - poor germination and stunted growth of plants - leaf staining on mature plants - whether leaching of phytotoxins and ferrous tannates from sawdust was a substantial cause of the respondents' loss
NEGLIGENCE - REASONABLE FORESEEABILITY - whether damage of the kind suffered from leaf staining and phytotoxicity was reasonably foreseeable by appellants
Counsel:	Mr P.A. Keane Q.C. with him Mr R.C. Morton for the First and Second Appellants Mr K. Boulton for the Respondents
Solicitors:	Ebsworth & Ebsworth for the First and Second Appellants Ellison Moschella for the Respondents

Date(s) of Hearing:15 July 1994