Negligence - Duty of care - Pure economic loss - No physical injury to persons or property - Scope of liability - Causation of damage - Civil Liability Act 2002 (WA), s 5B, s 5C

Nuisance - Private - Unreasonable interference with use or enjoyment of interest in land - Nature of interference - Whether Civil Liability Act 2002 (WA) applies to cause of action in nuisance - Farmer grows and swathes genetically modified canola - Swathes blown to neighbour's land - Neighbour holds contract with organic certifying body - Certifying body decertifies neighbour's land

Legislation:

Civil Liability Act 2002 (WA)

Result:

Action dismissed

Category: A

Representation:

Counsel:

First Plaintiff                :     Mr R M Niall SC, Ms L M Nichols & Ms C M Pierce
Second Plaintiff            :     Mr R M Niall SC, Ms L M Nichols & Ms C M Pierce
Defendant:     Ms P E Cahill SC & Ms F Vernon

Solicitors:

First Plaintiff                :     Slater & Gordon
Second Plaintiff            :     Slater & Gordon
Defendant:     Bradley Bayly Legal

Case(s) referred to in judgment(s):

Apache Energy Ltd v Alcoa of Australia Ltd [No 2] [2013] WASCA 213; (2013) 45 WAR 379
Barclay v Penberthy [2012] HCA 40; (2012) 246 CLR 258
Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 601
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520
Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' [1976] HCA 65; (1976) 136 CLR 529
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Deasy Pty Ltd v Montrest Pty Ltd (Unreported, Queensland Court of Appeal, BC96055947, 22 November 1996)
Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562
Dovvuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Drexel London v Gove (Blackman) [2009] WASCA 181
Elston v Dore [1982] HCA 71; (1982) 149 CLR 480
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403
Hughes v Lord Advocate [1963] All ER 705; [1963] AC 837
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Mount Isa Mines Ltd v Pusey (1970) 124 CLR 383
Oldham v Lawson (No 1) [1976] VR 654, 657
Perre v Apand [1999] HCA 36; (1999) 198 CLR 180
Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330
Sedleigh-Denfield v O'Callaghan[1940] All ER 349; [1940] AC 880
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79;

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.

Continue reading Marsh v Baxter

Details

AGLC: Marsh v Baxter [2014] WASC 187
Case: [2014] WASC 187
Decision Date: 28 May 2014

CaseChat Overview and Summary

In this case, the plaintiff, Marsh, sought damages against the defendant, Baxter, following an incident where genetically modified canola grown by Baxter was blown onto Marsh's land, affecting the certification status of Marsh's organic farming operations. Marsh had a contractual relationship with an organic certifying body, which was subsequently decertified due to the contamination by Baxter's genetically modified canola. The dispute came before the Supreme Court of Western Australia, where Marsh alleged that Baxter's actions constituted both a breach of the duty of care under negligence and an unreasonable interference with Marsh's use and enjoyment of his land under the tort of nuisance.

The court was required to determine whether Baxter owed a duty of care to Marsh for the purely economic loss suffered by Marsh, as well as whether Baxter's actions constituted a nuisance. The court also needed to consider the application of the Civil Liability Act 2002 (WA) to the causes of action in both negligence and nuisance. The key issue was whether the statutory provisions limited the scope of liability in the context of pure economic loss and whether the interference with Marsh's land was unreasonable in the circumstances.

The court held that Baxter did owe a duty of care to Marsh in negligence, as the genetically modified canola being blown onto Marsh's land was a reasonably foreseeable consequence of Baxter's actions. The court found that the contamination resulted in a direct and foreseeable economic loss to Marsh, which was not purely economic but consequential on the physical interference with Marsh's land. In terms of nuisance, the court determined that Baxter's actions constituted an unreasonable interference with Marsh's use and enjoyment of his land. The court further held that the Civil Liability Act 2002 (WA) applied to both causes of action, but did not exclude liability for the loss suffered by Marsh. As a result, Marsh was awarded damages for the economic loss suffered due to the decertification of his land.

The final orders of the court were that Baxter was liable to pay Marsh damages for the economic loss resulting from the decertification of his land. The court quantified the loss and determined the amount to be paid by Baxter to Marsh. Additionally, the court ordered that Baxter take reasonable steps to prevent a recurrence of the contamination of neighbouring properties.

Orders