GEJ & Ma Geldard Pty Ltd v DN Mobbs - [2010] QSC 220

SUPREME COURT OF QUEENSLAND

CITATION:

GEJ & MA Geldard Pty Ltd v DN Mobbs & Ors [2010] QSC 220

PARTIES:

GEJ & MA GELDARD PTY LTD ACN 065 705 777
AS TRUSTEE FOR THE G & M GELDARD FAMILY TRUST
(plaintiff)

v

DONALD NOEL MOBBS and
JILL WINIFRED MOBBS
(first defendant)

and

SIMON DRURY

(second defendant)

and

MDH PTY LTD ACN 010 114 468

(third defendant)

and

DONALD ALEXANDER McDONALD

(fourth defendant)

and

BEN MAHER

(fifth defendant)

and

MEANDARRA AERIAL SPRAYING PTY LTD
ACN 087 259 283

(sixth defendant)

and

ROSS JAMES YORK TRADING AS ELITE AGRI‑SERVICES BN 19693941

(seventh defendant)

and

LACHLAN HILL
(eighth defendant)

FILE NO/S:

BS 2773 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT: Supreme Court

DELIVERED ON:

23 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3, 4, 5, 6, 7 August 2009; 6, 19, 20 November 2009; 11, 12 February 2010; written submissions 19 March 2010.

JUDGE:

Ann Lyons J

ORDER:

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – Where the plaintiff grows cotton crops on properties 20 kms south of the first defendant’s cattle properties – where the sixth and eighth defendants carried out aerial spraying of herbicides to control wattle trees on the first defendant’s cattle properties in December 2005 – where subsequent to the aerial spraying the plaintiff’s cotton crops began showing adverse symptoms including yellowing, discolouration, deformity and crinkling – where the herbicide sprayed was “off label” – where the weather conditions during the aerial spraying included high winds, low humidity and high temperatures – where the pilots logged significantly different weather conditions to the local weather stations on that day – where varying accounts exist as to the release height of the aerial spraying – where various experts tendered reports as to the possibility of spray drift causing the crop damage – whether an amount of herbicide reached the plaintiff’s properties – whether the herbicide caused damage to the plaintiff’s cotton crops – whether the sixth and eighth defendants could have reasonably foreseen that aerial spraying in the particular circumstances would cause damage to the plaintiff’s crops – whether the sixth and eighth defendants are liable in negligence for the damage caused.

Amaca v Ellis (2010) 263 ALR 576
Batiste v State of Queensland [2001] QCA 275
Bonic v Fieldair (Deniliquin) Pty Ltd & Ors [1999] NSWSC 636
Burnie Port Authority v General Jones Pty Ltd (1994) 170 CLR
Flounders v Millar [2007] NSWCA 238
The Council of the Shire of Wyong v Shirt 146 CLR 40

Civil Liability Act 2003 (Qld)

COUNSEL:

K Howe for the plaintiff

P Axelrod (Solicitor) for the sixth and eighth defendants

SOLICITORS:

Woods Hatcher for the plaintiff

CLS Lawyers for the sixth and eighth defendants

TABLE OF CONTENTS

Background
The parties
The nature of the plaintiff’s properties
The development of symptoms
Testing of samples
The plaintiff’s claim in negligence
The experts

Ed Offner’s evidence
Peter Tremain’s evidence
Dr Preston’s evidence
Dr…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] QSC 220
Decision Date: 23 June 2010

CaseChat Overview and Summary

The plaintiffs, GEJ & Ma Geldard Pty Ltd, initiated proceedings against DN Mobbs and others in the Supreme Court of Queensland, asserting claims of negligence against the defendants who conducted aerial spraying of herbicides on their cattle properties. The plaintiffs alleged that the herbicides drifted onto their neighbouring cotton crop properties, resulting in significant crop damage. The dispute centered on whether the defendants could have reasonably foreseen the potential for crop damage due to herbicide drift under the specific circumstances of the aerial spraying, and if they were thus liable for the ensuing damage.

The court was tasked with determining whether the defendants owed a duty of care to the plaintiffs and whether the damage to the cotton crops was reasonably foreseeable. Key issues included whether the herbicides drifted from the spraying operation to the plaintiffs’ properties, and if so, whether the defendants could have reasonably anticipated this outcome. The court also had to assess whether the defendants acted with reasonable care in conducting the aerial spraying, given the weather conditions and the off-label use of herbicides.

In examining these issues, the court concluded that the defendants could not have reasonably foreseen the damage to the plaintiffs' crops under the specific circumstances of the spraying. The court found that while the herbicides did drift onto the plaintiffs’ properties, the foreseeability of such damage was not established as a matter of law. Additionally, the court determined that the defendants had taken reasonable care in conducting the spraying operation. Consequently, the court dismissed the plaintiffs’ claims of negligence against the defendants.

The Supreme Court ruled in favor of the defendants, finding that they were not liable for the damage caused to the plaintiffs’ cotton crops. The court held that the defendants could not have reasonably foreseen the damage, and therefore, they did not breach any duty of care owed to the plaintiffs.

Orders