Barclay v Bootle & Ors

the properties: 1"Kilbirnie" owned and operated by Mr and Mrs Barclay "Bonna" leasehold owned by Mr Bootle and operated through a management company

the parties 2Mr and Mrs Barclay (plaintiffs) owners and occupiers of "Kilbirnie". Mr Bootle (1st defendant) leasehold proprietor of "Bonna". Bootle Bros Management P/L (BBM) (2nd defendant) occupier of "Bonna" and operator of the farm. Macquarie Valley Agricultural Services P/L (MVAS) (3rd defendant) operated an aerial spraying business. Mr Shapley (4th defendant) pilot of aircraft used by MVAS.

non - parties 3Bundambar P/L (BPL) owned the aircraft used by MVAS and Mr Shapley. Mr Martin a director of MVAS and BPL. Air XS P/L Mr Shapley's company of which he was a director and by which he was also said to be employed. TP = transcript pageTB#p = tender bundle no. page.

unchallenged background 4"Kilbirnie" and "Bonna" are located 15 kms north of Nyngan just off the eastern side of the Mitchell Highway. The properties have a number of common boundaries and are both substantial land areas. 5The properties can be seen in figure 1 below, which outlines "Bonna" in orange and "Kilbirnie" in green at least as far as the events of 5 and 6 July 05 are concerned. The western border of Kilbirnie abuts the Mitchell Highway. Figure 1 62005 was a drought year indeed part of the worst drought in the area in recorded history. 7The two properties are divided into various paddocks which have been given a variety of names. Those names also appear in figure1. 8It is not disputed that on 5/7/05 glyphosate, a herbicide, was sprayed by air on the paddock highlighted in pink, which is on "Bonna" and which is called "OK Well". It is also not disputed that the following day 6/7/05 the paddocks highlighted in yellow were also aerial sprayed with glyphosate being paddocks called "Back Pine", "Pine", "Back Taxi" and "Taxi". 9A complicating factor is that both Mr Bootle and Mr Barclay ground sprayed various paddocks around the same time and in particular, Mr Bootle ground sprayed two paddocks called "Walshes" and "Barclays" which were, somewhat confusingly, part of the 'Bonna' property, on 6 and 7 July 2005. That is an important factor as will appear from the experts conclave, exhibit D3.10. 10The paddocks on Kilbirnie that suffered glyphosate damage were Little Gibsons, Paddy's, Sues, Sams and Back Cultivation. These paddocks were all sown to wheat with Back Cultivation being also undersown with winter graze lucerne on 25/6/05. Sues paddock was also undersown with sardi lucerne (20ha) and wintergraze lucerne (103ha) on 24/6/05 11Whilst there has been some debate about wind direction on the particular days, I am satisfied on balance that the wind direction and speed was as recorded by the pilot Mr Shapley on each day in question namely on 5/7/05 045° at 6 knots (TB3P 758) and on 6/7/05 000° at 5 knots (TB3P 759). 12Meteorological records kept at Nyngan airport, 15 kms away, record that the wind on 5/7/05 was from the ESE at 4 knots per hour and Mr Ghirardello seems to place some reliance on that as being more accurately a reflection of the prevailing conditions on "Bonna". Mr Shapley's memory of wind direction is dependent on his records. 13A number of experts were qualified. Mr Nicholson and Mr Bentley for the Barclay's and Mr Ghirardello for the 3rd and 4th defendant's. The 1st and 2nd defendant's did not qualify anyone. All experts provided extremely detailed reports which appear in the tender bundle. Mr Nicholson and Mr Ghirardello also gave evidence. Mr Bentley was required for cross-examination by the 3rd and 4th defendants but was too ill to attend. His report was admitted over objection but subject to weight. His report dealt principally with the issue of the quantification of damage. Mr Nicholson in part disagrees with Mr Bentley on an area of his opinion. 14As I said the expert reports were extremely detailed containing many documents, maps, photographs, articles and the like. Prior to the evidence commencing Mr Nicholson (SN) and Mr Ghirardello (FG) were required to have a conclave to see if they could agree on certain issues referred to them. The result of the conclave held on 7/2/11 is set out in exhibit D3.10, the relevant parts being as follows:- 1.Agreed that the source of the complaint is Glyphosate injury. 2.No possible inversion with the recorded wind strengths on 5/7/2005. 3.If wind on 5/7/2005 was from ESE (BOM) then no possible way drift onto 'Kilbirnie'. But the crop that would be susceptible are 'Bonna's' sensitive crops on that wind direction. 4.Both SN and FG on inspection of the buffer zone area between the field "OK Well" and 'Kilbirnie' "Sam's West" and "Back Cultivation" could find no evidence on the indicator fields available as to any Glyphosate contamination between "OK Well" and "Sam's West"/"Back Cultivation". 5.SN states that he cannot rule out the possibility of drift from "OK Well" as being the source of the damage observed in "Back Cultivation" and "Sam's". FG does not agree that this was a source of injury. 6.FG confirms from his inspections that "Innisfallen" was not sprayed by ground or air directly. 7.SN has no evidence that "Innisfallen" was sprayed directly by ground or air but there was spray drift damage to indicator plants on the western half. FG agrees. 8.SN and FG agree that aircraft on 6/7/2005 treated: a."Back Pine"; b."Back Taxi"; c."Taxi"; and d."Unnamed" [Bourke* map]. 9.SN and FG agree they were told that "Walshes" and "Barclays" were treated on 6 and 7 July 2005 by Bootle's ground sprayer. 10.SN and FG agree that Bourke's affidavit map and Bootle's spray map are not accurate representations of the paddock layout. 11.SN and FG agree that Glyphosate did trespass from the aircraft on 6/7/2005 into 'Kilbirnie' on fields "Paddys", "Little Gibson" and "Sue's East". 12.SN and FG agree that the spraying by the Bootle ground sprayer on 6 July 2005 and/or 7 July 2005 could have caused or contributed to the damage to "Little Gibson", "Sue's East" and "Paddys" on 'Kilbirnie'. 13.SN and FG also agree that based on the information known to date that the Bootle ground sprayer on either 6 and or 7 July 2005 could have caused or contributed to the spray damage on "Sam's West" and "Back Cultivation". 14.Based on the known wind records, the aerial application of 6/7/2005 to: a."Taxi"; b."Back Pine"; c."Back Taxi"; and d.Unknown; FG is of the opinion that that spray did not cause damage to "Sam's West" and "Back Cultivation" on 'Kilbirnie'. SN has grave doubts that it could have caused damage to "Sam's West" and "Back Cultivation". 15.Both SN and FG agree that the ground spray by Bootle on 6 and/or 7 July 2005 on "Walshes" and "Barclays" were likely to be the cause of the damage on "Back Cultivation" and "Sam's West". 16.FG remains of the firm opinion as to the possibility of spray drift on 5 and 6 July 2005 from the Barclay ground spray which commenced at 7:34:24pm on 5/7/2005 being "Roundup" and "Ester" according to the Barclay spray records (GPS) and drifting onto the fields "Little Gibson" and "Paddys" and thereby causing or contributing to the crop injury. SN has no evidence to substantiate the claim by FG but also has no evidence to dispute it. (* Bourke was a farm worker employed by Mr Bootle. However none of the parties in this matter have relied on his evidence.) 15The experts agreed (exhibit D3.10) that the source of the complaint is glyphosate injury. They also agreed that if the wind was blowing from the ESE there would be no way that any aerial spraying could have drifted onto "Kilbirnie". 16The only other glyphosate spraying that was occurring at the relevant time was that Mr Bootle was ground spraying glyphosate on the paddocks to the west of the yellow paddock in figure 1 on both 5 and 7 July 05, known as "Walshes" and "Barclays". The aerial spraying on 6/7/05 (figure 1 the highlighted yellow area) consisted of spraying 4 paddocks known as "Back Pine" and "Pine", "Back Taxi" and "Taxi". 17The Barclay's had also ground sprayed some areas of Kilbirnie in 2005. 18Set out in the following table where G = "Glyphosate" and E = "Ester 800" another herbicide are details of the plaintiff's spraying and sowing at the relevant time. These details were obtained from Mr Barclay's statement at TB1P 16 - 27. Glyphosate is a systemic herbicide and Ester 800 is a broad leaf herbicide Paddock Area sprayed in hectares Date in 2005of spraying Type of spray Date sown to crop in 2005 Little Gibson 53 of 178 23 June Glyphosate 23 June Sues 77.8 of 123 23 June G 24 June Sams 160 25 June G + Ester 800 26 Jne & 4 Jly Sheepyards 255 26 Jne & 5 Jly G + E 5 July Bourke Tank 283 5 & 6 July G + E 6 July White Elephant 72 6 July G + E 7 July Hayshed 110 40 7 July G + E 8 July Hayshed 55 22 7 July G + E 8 July Hayshed 65 26 7 July G + E 8 July Cowel 28 12 8 July G 8 July Cowel 32 13 7 July G + E 8 July

19These various paddocks and locations can be seen on exhibit D1.7 which is figure2 in the judgment and which is set out below. Figure 2 20What needs to be born in mind is that the Barclay's claim relates only to aerial spraying carried out on Bonna and not to any ground spraying, so that if any of Kilbirnie's crops suffered damage from either Bootle's or their own ground spraying, they are not entitled to any damages in these proceedings. 21The Barclays say that the undoubtedly glyphosate damaged parts of paddocks "Back Cultivation" and "Sams West" were caused by aerial spraying of the "OK Well" paddock on Bonna on 5/7/05. The only other possible source of contamination of those paddocks is from the ground spraying conducted on 6 and 7 July on the "Waltons" and "Barclay's" paddocks, being part of "Bonna", by Mr Bootle. 22It is highly unlikely that the aerial spraying of the Pine and Taxi paddocks on 6/7/05 could have caused the damage to Back Cultivation and Sams West. (see exhibit D3.10 at paragraphs 12,13,and 14). 23In exhibit D3.10 the experts agree that on 5/7/05 there was no possibility of an inversion event with 6 knot winds. They also agree that the buffer zone area between "OK Well" and Kilbirnie which consisted of "Summervale Siding" and "Wilsons" paddocks contained no evidence of glyphosate contamination. On that basis Mr Ghirardello says that the spraying on 5/7/05 could not be the source of the damage to "Sams" and "Back Cultivation". Mr Nicholson says he can't rule out such a possibility. 24However later in exhibit D3.10 at 15, both experts agree that the likely cause of damage to "Back Cultivation" and "Sams West" was Mr Bootle's ground spraying of "Walshes" and "Barclays" on 6 and 7 July 2005. 25In written submissions, counsel for the Barclays simply asserts that "the Plaintiffs allege that the Glyphosate damage to their crops was caused by the aerial spraying carried out by the Fourth Defendant on behalf of the Third Defendant who had been contracted to do the spraying by the First and Second Defendants. This view is supported by the report of Mr Nicholson dated 29 July 2006, paragraph 8. However, Mr Ghirardello (report 9 August 2010, paragraphs 23.4 and 24.6) concludes that the aerial spraying could not have caused damage to the Plaintiffs' crops in at least two paddocks and raises the possibility that the Glyphosate damage resulted from ground spraying being conducted by the Plaintiffs and/or First/Second Defendants and/or by a nearby property owned by Glencore Land Australia." 26In oral submissions, that position was not really advanced much further and Mr Nicholson's report at chapter 8 is not really specific as to the individual paddocks in question. If, as I am urged to do by Mr Dodd at TP72 (15/11/11) to "just ... ask the question each time: What's more likely than not? What's more likely than not", then I would have to say that, on the basis of the expert opinion, it is unlikely that any aerial spraying on 5 or 6 July 05 caused any damage to "Back Cultivation" or "Sams". 27Apart from the conclave agreement of the experts who, putting aside any question of partisanship or prevarication, have extensive expertise in the field both academically and practically over many years, the fact that neither expert detected any glyphosate damage to "Wilsons" or "Summervale Siding" paddocks, which occupy an extensive area between the paddocks being sprayed and the damaged paddocks, and the lack of possibility of an inversion incident, would tend to militate against the aerial spraying of 5/7/05 as being the cause of the damage. The experts were of the view that given the wind direction on 6/7/05 the aerial spraying on that date either did not cause the damage or there were "grave doubts" that it caused the damage to "Back Cultivation" and "Sams", because the likely cause of that damage was the ground spraying by Mr Bootle on 6 and 7 July of "Walshes" and "Barclays" which are immediately adjacent to the two Barclay paddocks in question. 28Without considering negligence or the absolute liability created by the Damage by Aircraft Act 1999 (Cwlth), I am not satisfied on balance of probabilities that any damage sustained by the Barclays in regard to crops sown in "Back Cultivation" or "Sams" paddocks was caused by any aerial spraying and in that regard the plaintiff's claim against all defendants in that regard must fail, as no other cause of damage has been sued on. As "Back Cultivation" was also under-sown with lucerne, for which a loss of productivity is claimed, the claim for lucerne damage cannot therefore be substantiated against any defendant in regard to that paddock being 273 ha of a total lucerne crop of 396 ha. The remaining 123 ha were located in "Sue's" paddock which is approximately 32.2% of the total "Kilbirnie" lucerne crop.

damages to wheat crops in "little gibsons", "paddy's" and "sue's" and damage to lucerne in "sue's" paddock 29As can be seen from figure 1 these paddocks lie to the south of the yellow area. If any aerial spraying damaged these crops it would have been the aerial spraying of 6/7/05, which would correlate with the wind direction on that day which was from north to the south at about 5 knots. 30Both experts agree that glyphosate from this spraying drifted onto "Paddy's", "Little Gibsons" and "Sue's East" (exhibit D3.10 at paragraph 11). They also both agree that the ground spraying by Bootle on "Walshes" and "Barclays" on either 6 and/or 7 July could have caused or contributed to the damage to the Barclay paddocks in question (exhibit D3.10 at paragraph 12). At paragraph 16 of their conclave the following is stated "FG remains of the firm opinion as to the possibility of spray drift on 5 and 6 July 2005 from the Barclay ground spray which commenced at 7:34:24pm on 5/7/2005 being "Roundup" and "Ester" according to the Barclay spray records (GPS) and drifting onto the fields "Little Gibson" and "Paddys" and thereby causing or contributing to the crop injury. SN has no evidence to substantiate the claim by FG but also has no evidence to dispute it." 31There exist two possibilities. One that the damage was the result solely of the aerial spraying or two that it was caused by both aerial and ground spraying. There is only one source of aerial spraying but a possibility exists that the plaintiff's own ground spraying or that of Mr Bootle could have been involved in the damage to the crops or a combination of all three. The Barclays sue only in regard to the aerial spraying, not any ground spraying. 32Before turning to consider the liability, if any, of each of the defendants, I should determine the issue of causation as there are a multitude of issues concerning liability once causation has been determined. 33Causation is encoded in s5D and 5E of the Civil Liability Act. The plaintiff is required to establish, on the balance of probabilities, any fact relevant to the issue of causation. 34In that regard there is no direct evidence that the glyphosate dropped by Mr Shapley ended up on the Barclays property. That is, no one is available to say they saw spray from the aerial spraying drift over to the Barclays paddocks. 35The issue of causation does not relevantly relate to the observed damage to the crops in question as no fact relative to the quantification of damage bears on the issue of how the damage was caused. 36Mr Dodd spent some time attacking the reliability of Mr Ghirardello's evidence particularly as to it being partisan and geared to steering liability for causation away from the 3rd and 4th defendants. Without wishing to get involved in that debate, the fact is that the plaintiffs must establish the likelihood that the aerial spraying caused the damage. It is not for the defendants to disprove that contention but for the plaintiffs to affirmatively establish it. In that regard Mr Bentley's report is not of assistance but both Mr Nicholson and Mr Ghirardello were at the scene of the damage, together with Mr Barclay, in early August 2005 and were able to thus make various forensic observations. 37I have only had a limited opportunity of observing the two experts as the bulk of their evidence was taken before another judge and those circumstances make it more difficult to deal with issues of credit given that the judge made no such findings nor had the opportunity to do so. 38It also seems to be the case that neither expert had access to any data from the Bonna property which Mr Ghirardello, at TP 349.8, considered "substantially hampered" his analysis of the situation. One criticism of Mr Ghirardello is that he at times tended to create possible scenarios where there was no evidence one way or the other to establish that scenario as a possibility. That is perhaps exemplified at TP 345.21 where he says "There is no evidence that there was no wind from the south, but there is no evidence that there wasn't a wind from the south either". 39This answer occurred in the context of lengthy answers by Mr Nicholson firstly, then Mr Ghirardello, in regard to the potentiality of spray drift carrying from ground or aerial spraying on Bonna or ground spraying on Kilbirnie to the south of the affected paddocks. 40Why this latter proposition was being considered was because Mr Nicholson agreed with Mr Ghirardello that the damage to "Little Gibsons" was more to the south in that paddock and less to the north (see TP 336.15). Mr Ghirardello says that in the circumstances where the wind direction, droplet size, surfectant and concentration of chemical used by Mr Barclay and Mr Bootle when ground spraying was unknown, his analysis of likelihoods of source of damage was hampered. (TP 337-349)

physics of spraying herbicides 41It is common ground that both ground and aerial spraying contain a number of variables that are likely to affect the outcome. 42The first is droplet size, which can be adjusted on the equipment. The larger the droplet the heavier it is and thus the more it is likely to be affected fall where intended. 43The second is the angle at which the spray nozzles are adjusted to. 44The third is the weather conditions namely temperature, humidity and wind. 45The fourth is the concentration of the chemical being sprayed. 46The fifth is the nature of any surfectant that might be included in the mix of chemicals. A surfectant is designed to allow a quick disposal of a chemical once it has landed on its target in order for it to be absorbed into the vegetation. 47Glyphosate, once absorbed by a plant, is distributed throughout the leaf, stem and root system so as to hopefully completely kill the plant. Whether a particular plant dies or survives in a damaged condition depends on the amount of herbicide it receives. Freshly planted plants are more susceptible to glyphosate than better established plants. (cf exhibit D3.8 - Weed Technology 2006 vol 20:23-31 at P 30 - "Wheat response to simulated drift of glyphosate...." By Z.A. deeds et al) and (exhibit D3.9 - Weed Technology 2008 vol 22:453-458 at P 457 - "Carrier Volume Affects Wheat Response to Simulated Glyphosate drift" - C.A. Raider et al) 48Part of the mechanics of spray containing a substance like glyphosate is that individual droplets can begin to evaporate or de-hydrate with climatic conditions, resulting in a reduction in size of the droplet and a consequential increase in the concentration of the chemical. Indeed the evidence is that the water component can completely evaporate leaving a speck of chemical which can be blown anywhere. If it eventually falls on plant material and there is water available to re-hydrate it, it will then be absorbed into that plant which could be kilometres away. THE EVIDENCE AS TO SPRAY DRIFT AS IT MIGHT HAVE AFFECTED "SUE'S", "LITTLE GIBSON'S" AND "PADDY'S" PADDOCKS ON KILBIRNIE. 49Both experts agree that the ground spraying of 6 and 7 July could have caused or contributed to the damage to those paddocks. 50Mr Ghirardello was of the view that Mr Barclay's own ground spraying presumably of "Sheepyards" and "Bourke Tank" paddocks on 5 and 6 July could possibly have drifted onto "Little Gibsons" and "Paddys". 51There is no evidence that is capable of a degree of proof based on the balance of probabilities that would suggest that any of the spraying that occurred on or around that time could have drifted excessive distances, as can happen in certain weather conditions. There is nothing before me on which to base a possibility that the damage to the plaintiff's crop was caused by a remote spraying event outside the immediate area. Nor do I think it appropriate to speculate on possibilities when probabilities are more apparent. In that regard the court must base it's decision on known facts and not speculations as to what facts may or may not have been in existence at a certain place and at a certain time. 52Although there is no evidence to substantiate it, Mr Ghirardello felt it was possible that the damage observed to "Sues", "Little Gibsons" and "Paddys" could have come from the Barclay's spraying on 5 and 6 July of "Bourke Tank" paddock (see fig 2) which is due south, despite the only evidence of wind in the immediate area being from Mr Shapley, the pilot, which was that the wind was from the North and North North East. Mr Ghirardello felt that the greater intensity of the damage to the south of the affected fields indicated that the spray event must have come from that direction (TP 345). 53Mr Nicholson was also asked about this apparently contradictory phenomenon and at TP 336 proffers what seems to me to be a reasonable explanation namely that "Spray events do strange things but directionality doesn't change. So what can actually happen is as a spray chemical comes over - this is your capture zone of trees - comes over the top, it starts to balloon down and roll. If it's close and its directionality is caused by usually a boom spray, you get nice little fingers going out that you can just see, your Honour. They're just there and you can pick them straight up. But when it's coming in from the distance and particularly from height it balloons. And it can go half way across the paddock closest to the source of the spray before it starts to really balloon into the paddock and cause the damage. HIS HONOUR: And just for the record you're displaying a rolling motion with your hands. WITNESS NICHOLSON: A rolling motion, yes." 54The "capture zone of trees" referred to is, as I understand it, the large paddock with trees that is between "Back Taxi" and "Taxi" and the plaintiff's paddocks and which is clearly visible in exhibit D1.7. (Fig 2). 55One of the difficulties in regard to assessing the source of impact damage is that there is no data available in respect of any of the ground spraying particularly of Bonna, such as "nozzle size, when he was spraying, where he was spraying, what the wind was doing at the time". (TP 351.40 Ghirardello). It is also relevant to know the height above ground that both the ground sprayer and the aerial sprayer were operating at. Whilst it is said that the aerial spraying height can be looked at on the SATLOC records, that record "is not a highly accurate thing". (TP352.16 Ghirardello). 56I am not satisfied on balance of probabilities the defendant's have established that the damage to " Kilbirnie's" crop in "Sues", "Paddy" and "Little Gibsons" was caused wholly or part by any ground spraying in undertaken by Mr Barclay specifically on the basis that the only prevailing wind evidence would suggest that such was highly unlikely, not to mention what is stated by the experts in the conclave agreement exhibit D3.10. 57That leaves the plaintiff having to prove on balance that it was the aerial spraying that caused the damage. Whilst this is an agreed proposition by the experts, Mr Ghirardello suggests that Mr Bootle's ground spraying also contributed to that damage. If that is the case, the court would be required, as far as possible to work out the percentage contribution from each source which would then impact on the damages that would be recovered. 58On the day in question the wind was blowing from a northerly direction at approximately 5 knots. The probabilities in my view are that Mr Bootle's ground spraying was closer to the surface than was the aerial spraying. That makes it less likely to have been caused to rise above the tree filled paddock that lies between "Walshes", "Barclays" the "Pines" and the "Taxis" paddocks. 59Some of what the experts agreed on seems to be at cross-purposes. For example an important finding relates to " Innisfallen" which is a "Bonna" paddock. In D3.10 at paragraph 6 and 7 Mr Ghirardello says his inspections of that paddock did not indicate any direct aerial or ground spraying but both Mr Ghirardello and Mr Nicholson do agree that there was spray drift damage to plants in the western half of that paddock. That spray drift could only have come from the aerial spraying. 60If one looks at figure 2, the western half of "Innisfallen" is directly south of "Taxi" and "Pines", however as only ½ the paddock was damaged that would tend to suggest that the wind direction was not directly due south but to about the south, south west which would also then coincide with the damage found on "Sues", Little Gibsons" and "Paddys". 61Additionally as both experts agree that it was more likely than not that it was Mr Bootle's ground spraying of "Walshes / Barclays" paddocks on 6 and 7 July that caused the damage to "Back Cultivation" and "Sams", that would tend to exclude the possibility that this ground spraying could also have caused damage to "Sues ", "Little Gibsons" and "Paddys". 62This would seem to indicate that whilst the wind may generally have been from the north/north north east it must have veered further east at times. 63When one looks at the grain yield maps, which are at TB3 PP511 - 515 and which relate to "Sams", "Sues", "Cultivation" "Paddys, "Little Gibsons" and "Back" paddocks, whilst they are not always complete and whilst they are not necessarily evidence of a direct correlation between glyphosate damage and crop yield reduction, they do provide further evidence of the probable path of spray drift from the "Pines" and "Taxi" paddocks on Mr Bootle's property to "Sues, "Little Gibsons" and "Paddys". 64Subject to a qualification as to the nature of the damage sustained, I am satisfied on the balance of probabilities having regard to the above and the conclave findings, that aerial spraying of the "Pines" and "Taxi" paddocks on 6 July 2005 partially drifted across and caused damage to the emerging crops in "Sues", "Little Gibsons" and "Paddys". 65The nature and extent and quantification of that damage and the liability for it are further issues to be determined.

(1) DAMAGE OTHER THAN IN REGARD TO THE DAMAGE BY AIRCRAFT ACT 66I have received written submissions in regard to liability from the respective parties. These submissions are annexures "P", "D1/2" and "D3/4" to this judgment. It may be helpful for me to deal with these submissions in the order in which the parties have been sued. A number of cases have been referred to although none are directly on point, except for the case of Bonic v Fieldair (Deniliquin) Pty Ltd (1999) NSWSC 636, a decision of Davies AJ. It is argued that this case is not binding on me for two reasons. The first is that single judge decisions of the Supreme Court do not bind the District Court because the only appeal rights a party has from a District Court decision is to the Court of Appeal and not to a single judge of the Supreme Court. Secondly, and perhaps more relevantly, Bonic was decided without representation from any of the defendants, so that the usual opportunity to vent different arguments was not there. However I note that this decision was followed by a single judge of the Queensland Supreme Court in Geldard Pty Ltd v Mobbs 2010 QSC 220, applying the Queensland Civil Liability Act 2003 which is similar to the NSW Civil Liability Act. 67Mr Sexton argues that the principles derived from Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 do not apply to his clients because the aerial spraying of glyphosate is not a sufficiently hazardous activity within the meaning of those principles but also because the present case is distinguishable. He argues that such spraying activities have become an activity in the "ordinary course of agriculture" in that district and which is not necessarily "hazardous" and thus the Rylands v Fletcher principles would not apply, relying what was said in Gartner v Kidman 108 CLR 12 @ 48. 68In that case the HCA said that "what is natural use (of land) is a question to be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used". That was in the context of a change in the water flow situation affecting land and the judgment is directed to that situation. 69However it is difficult to see that the mere common usage of a product that can cause damage where it is not intended is somehow rendered non-hazardous because of that fact. Regrettably, farming activities give rise to the common use of many substances and things that can cause serious injury or damage, such as the many chemicals and equipment used in the production of whatever it is that is being produced. 70In any event, in this day and age, it may be arguable that the infliction of "herbicides" is not a "natural use" of agricultural land, especially as that was understood at the time Rylands v Fletcher was decided. 71The Amended Statement of Claim (ASOC) filed in court on 16/3/11 alleges Mr Bootle to be the registered proprietor of the leasehold of the property known as Bonna and as such he allowed Bonna to be used for farming purposes by Bootle Bros Management P/L (BBM) as well as allowing BBM to occupy Bonna and carry out activities on it. This is not denied on the pleadings. 72Mr Bootle says that he does not owe anyone a duty of care just because he is the "owner" of the land, not the occupier. Nor, it is argued, does he, as a director of BBM incur any personal liability for the conduct of BBM. Mr Bootle and BBM say they are not vicariously liable for the conduct of MVAS, an independent contractor, or its employee/sub-contractor, Mr Shapley, nor does the non-delegable duty referred to in the Burnie Port Authority Case apply to either Mr Bootle or BBM because the case is distinguishable and aerial spraying of glyphosate is not a sufficiently hazardous activity to engage the principles set out in Burnie. 73What is clear from the evidence is that for all intents and purposes, Mr Bootle was the hand and mind behind the occupation and use of the property Bonna. In the running of Bonna Mr Bootle was BBM and BBM was Mr Bootle. This was not a situation of the owner being a remote and uninterested party as to the activities of BBM. In fact the very opposite. Despite submissions to the contrary, BBM did not do anything in regard to Bonna that was not instigated by Mr Bootle. 74Whilst it may be true that the agreement for aerial spraying was between BBM and MVAS, that agreement came about at the behest and with the authority of Mr Bootle. To argue that Mr Bootle did not contract with MVAS is in my view simplistic and ignores the reality on the ground. 75What is factually true is that neither Mr Bootle nor BBM actually carried out any aerial spraying. The individual who did that was Mr Shapley. But that spraying was at the direction of Mr Bootle and BBM. Although neither Mr Bootle or BBM or MVAS had control over how the plane was flown, anyone of those entities could have directed the pilot not to engage in aerial spraying on the day in question. 76It is important to emphasise that the prime cause of the damage occurring on the day, did not arise out of the manner in which the plane was piloted, including choice of droplet size and nozzle angle, but because the weather was unsuitable in all the circumstances due to the wind speed and direction. That damage was, in my view, prima facie preventable by either Mr Bootle or BBM or MVAS telling Mr Shapley not to spray on that day or by Mr Shapley himself deciding not to spray in the prevailing conditions. This is not a Sweeney v Boylan Nominees P/L (2006) 226 CLR 161 or a Scott v Davis (2000) 204 CLR 333 situation where damage has resulted from the way in which the work of the independent contractor was carried out. 77In the way this case was run, the Amended SOC (18) sufficiently in my view raises the undoubted fact that that Mr Bootle was the "controlling mind" of BBM. Indeed there is no evidence to suggest otherwise and with respect, it seems to me specious to argue some legal difference between the persona of Mr Bootle, and the persona of BBM, when it is said that it was BBM and not Mr Bootle who wanted spraying carried out for its business and who arranged for the glyphosate to be brought onto that land by MVAS and Mr Shapley. 78In Bonic, Davies AJ said at paragraphs 25 and 26 "In the present case, the nature of the chemicals being sprayed was such that all persons responsible for the operation, that is the four defendants, had a non-delegable duty to ensure that properties in the vicinity of the Rendell land were not damaged by the spraying. It therefore does not matter whether Mr Herschfelder was an employee or an independent contractor of the first defendant, a point which neither the evidence nor the statement of claim makes clear. The actions of Mr Rendell were also the actions of his company and therefore he is personally responsible and the third defendant, Rendell Nominees Pty Limited is responsible for his acts and omissions." 79In that case the non-appearing defendants equated to the defendants in these proceedings in that there was Mr Rendell, the managing director of Rendell Nominees P/L, Rendell Nominees (occupiers), Field Air (Deniliquin) P/L and Mr Herschfelder, the pilot. True it is that there was no one to argue against the plaintiffs case but His Honour's decision was based on evidence and was not just some guess on his part as to what the circumstances may have been. 80However I do agree with the submission that if Mr Bootle had a duty of care than that was a duty of care no less nor greater than that owed by BBM. 81I think the situation needs to be put in perspective. Here we have two farmers with significant common land boundaries engaged in the production of cereal crops to feed humans and lucerne crops to feed animals. In order to control weed infestations over large areas requires broad acre spraying of glyphosate and other herbicides with the obvious and real risk of such herbicides damaging productive crops. A balance has to be weighed between economics and the risk that if your decision to spray in conditions that result in damage to your neighbours crop, then you may be absolutely liable for any consequential damage. 82This is not the situation described by Gummow J in Scott v Davis 2000 204 CLR333 @ 416 where "the defendant becomes, in affect, the insurer of some activity even when it is performed by another". As I stated earlier, the fault in this case is not in the methodology of the operation but in the decision to carry out the aerial spraying on the day in question, rather than ground spray or spray on another more suitable day. This is not an issue as to the skills of the pilot, the nature of the herbicide, the patterns of spraying, the control of the aircraft but simply whether or not aerial spraying should have been conducted on that day having regard to all the circumstances. 83Having regard to the expert evidence and the risks involved in the given climatic conditions, aerial spraying should not have been carried out where there was a risk of terminal damage to a neighbours crop. Had the aerial spraying been of some benign substance, we would not be here, but what was sprayed was a substance fatal to both good plants and bad and thus in my view what was said in Burnie Port Authority is apposite. 84Mr Sexton's submissions at P5 paragraph 22(ii) argues that spray drift damage of itself does not establish negligence because that can occur even if reasonable care is taken. It is then said that spray drift is not a necessary consequence of aerial spraying having regard to the expert evidence at TP 336, 339 - 341. That evidence appears to relate to weather inversions that can occur in some circumstances, such as where an inversion holds the spray in the air for some time until wind breaks it up or pushes it somewhere else. However inversions have been ruled out on the days in question because there was a steady wind from the N and NNE. Ground spraying of land is unlikely to be effected by weather inversions principally because it occurs closer to the ground and, as I understood the expert evidence, weather or temperature inversions are only problematical when aerial spraying is undertaken. 85The submissions continue the argument that in effect aerial spraying is a natural use of the land. I would strongly disagree that aerial spraying of a herbicide ever amounts to a natural use of land. 86In many respects aerial herbicidal spraying is analogous to the use of fire in that it is a hazardous substance that is virtually uncontrollable once released into the atmosphere. 87The Transfield case (Transfield Services (Aust) P/L v Hall (2008) 75 NSWLR 12) that has been referred to, again concerned a different factual matrix giving rise to the injury than what I am concerned with in the present case. By that I mean that what was in issue there was the responsibility for maintaining naval equipment used in a high risk training situation. The equipment broke causing an injury to a rating. In Transfield the court sought to distinguish activities that were either "inherently dangerous", "dangerous in themselves" or that were "dangerous" in a wider sense. Conceptually, as far as the law and the Civil Liability Act are concerned, that is not the same legal factual matrix that I am looking at. This is not a case, for example, of the pilot spraying the wrong paddock, or overshooting a boundary, or using the wrong spray but rather carrying out any spraying of a lethal substance on those paddocks at all in the prevailing conditions. 88Reference is made to the case of Hazelwood v Weber (1934) 52 CLR 268 to support a view that aerial spraying is an example of "... the use of the element or thing which the law regards as a potential source of mischief is an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier," and thus " the prima facie rule of absolute responsibility for the consequences of its escape must give way" and does not thus attract strict liability. 89That case concerned the escape of fire from one property to another and while the HCA did indeed say what is referred to above at P 277, it then went on as follows:- The terms in which the grounds of this exception from or exclusion of the prima facie rule have been described have varied, and, both because of this variation and of their indefiniteness, have been open to criticism. *** in the decision which finally confirmed the general application of this exclusion of absolute responsibility, namely, Rickards v. Lothian[6], Lord Moulton defined the rule to be that the occupier's liability independent of negligence arose from "some special use bringing with it increased danger to others" and "not merely ... the ordinary use of the land or such a use as is proper for the general benefit of the community." Now in applying this doctrine to the use of fire in the course of agriculture, the benefit obtained by the farmer who succeeds in using it with safety to himself and the frequency of its use by other farmers are not the only considerations. The degree of hazard to others involved in its use, the extensiveness of the damage it is likely to do and the difficulty of actually controlling it are even more important factors. These depend upon climate, the character of the country and the natural conditions. The question is not one to be decided by a jury on each occasion as a question of fact. The experience, conceptions and standards of the community enter into the question of what is a natural or special use of land, and of what acts should be considered so fraught with risk to others as not to be reasonably incident to its proper enjoyment. In Australia and New Zealand, burning vegetation in the open in midsummer has never been held a natural use of land. That it should be so considered does not appear to have occurred to the Supreme Court of Victoria. "If a person choose to bring fire into an arid place, he does so at his own risk, and the question whether he was guilty or not guilty of negligence as to the fire spreading does not arise" (per Stawell C.J., Sheehan v. Park[7]). Nor to that of New Zealand. "It is admitted that ... the law in New Zealand is that if a person lights a fire on his own land he must at his peril prevent its spreading to the land of his neighbours" (per Williams J., Kelly v. Hayes[8]). In Canada the view taken in the Western Provinces has been the same: see Goch v. Youschak[9], although in Upper Canada a contrary doctrine was adopted as early as 1846 (Dean v. McCarty[10]); see the judgment of Patterson J. in Furlong v. Carroll[11]. Nothing which was said by the Privy Council in Black v. Christchurch Finance Co.[12] supports the view that burning vegetation in such countries as New Zealand and Australia is anything but an extra-ordinary or special use of land involving exceptional danger to others. Indeed, Lord Shand said[13]:-"The lighting of a fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending to his neighbour's property" ***In our opinion the operation of burning stubble exposed the appellant to liability independently of negligence for the consequences of the escape of the fire." 90In many respects aerial spraying of herbicides, whilst it may be a common practice, is analogous to the fire situation referred to in Hazelwood. Both have beneficially intended result for the occupiers land but both are potentially lethal to a neighbour and in my view, aerial spraying would be more difficult to control once the chemical is released into the atmosphere, than is a fire, which may be amendable to the application of water, retardants, fire breaks or other means of control. No such means are available to control spray drift once released. 91There is no doubt that all the defendants were well aware of the risks attaching to the use of glyphosate both from long experience in the agricultural industry and from previous problems of overspray between the properties in 2003. Although any such damage was denied by Mr Bootle, having regard to some problem in the former good relationship between Mr Bootle and Mr Barclay, apparently an amount of $3,000 was paid for its nuisance value by Mr Bootle to Mr Barclay for what I understand to be an overspray in that year. 92Mr Bootle's evidence as to his using MVAS to do the aerial spraying is set out in paragraph 8 - 12 of his statement at TB3 p710 - 711 and transcript at PP 173, 180,183, 185, 188, 197 and 198 et seq. 93As far as Mr Bootle and BBM are concerned, their relationship with MVAS is an important one both as to liability generally and as to vicarious liability. Mr Bootle was at pains to make clear in evidence that he was concerned at any spraying activities that were to occur adjacent to Mr Barclays land. I am satisfied that he and MVAS knew that Mr Barclay had an emergent crop. Apparently sowing that year was late because of the draught and Mr Bootle's preparations for sowing in the in the relevant paddocks were behind those of Mr Barclay. He had to spray emergent weeds before he could sow his crops. Some of this spraying was done using Mr Bourke's ground spraying equipment, but as an economic and time saving measure, he decided to also use aerial spraying. 94In his statement Mr Bootle said "I leave the actual timing of any spraying up to MVAS and the pilot. In my past experience it was not uncommon to receive a telephone call from John Martin (MVAS's proprietor) rescheduling the spray operation because of adverse weather conditions. ... 95I refer to the facsimile instruction map referred to above being Exhibit 'A' to Murray Shapely's statement. Annexed to this statement and marked "A" is a true copy of that document. This is a copy of a map I sent to MVAS in June 2005. On that document are handwritten annotations 'sensitive new crop' and "H Stuart Barclay!!". I wrote them myself in 2005. The purpose of these handwritten notes were to convey a caution to John Martin in respect of spraying if the wind was blowing in those directions. I did so as a previous complaint had been made by Stuart Barclay in 2003 in relation to spraying operations at that time.(emphasised) 96My recollection is that the spraying in June/July 2005 had been delayed in excess of a week while waiting for suitable spraying conditions. I believed that MVAS decision to spray on this particular day meant that they had considered there to be no risk of spray drift onto the Barclay property. I did not want to spray if there was a risk to the Barclay property. Between initially sending the spray request facsimile to MVAS and 6 July I decided not to spray Innisfallen paddock. 97I preferred to use the spray rig to spray the areas closest to Kilbirnie because the rig operates at a height of 50cms from the ground. In my experience this means that there is less chance of spray drift. ... 98The transcript extracts set out below are also relevant. TP173 xx DODD Q. Can I suggest Sir, that if you're going to stay away from Mr Barclay with exclamation marks then why do aerial spraying on Innisfallon? A. The point would be to not spray it if the direction was at all into Stuart. HIS HONOUR Q. By direction you mean the direction of a wind? A. The wind, yes. So obviously there are times that it would've been perfectly safe to spray that. But it was sprayed - it wasn't sprayed. DODD Q. And you're aware, sir, obviously from your experience in 2003 personally that problems can occur on adjacent areas that you do not want to be sprayed by herbicide if there's an adjacent area or nearby area sprayed with herbicide, is that correct? A. I don't think that there was any area sprayed - you implied that there was some wrong doing in 2003 and I don't think that was the case. I think there was almost no herbicide damage on the lucerne in 2003. But what I learnt in 2003 was that even the most minor in the zone of several metres would - would prompt, you know, a lot of angst and - from Stuart. Q. You certainly received advice from your agronomist, Penny Houston, in 2003 that there could possibly have been a little drift on the south east corner of Mr Barclay's property, is that correct? A. Yes I think that - my recollection was that she said that there a little. Q. But my point is, Sir, is that as at 2005 certainly you were aware of the potential problem of spray drift? A. I have always been aware of the potential problem of spray drift, yes. Q. And you deposing in your statement, not surprisingly, that you use ground spraying because there's much less potential of spray drift, is that correct? A. That is correct. TP180 Q. Now you had sent the instructions to Mr Martin on or about 30 June 2005, is that correct? A. That's - that's correct. Q. According to your statement, if one goes to paragraph 11, you say there that, as we've gone through, it had been delayed in excess of a week and you thought that their decision to spray was that they considered there was no risk. Is that right? A. Certainly that was, yes, yes. Q. And sir again at the top of that page, within paragraph numbered 8, having given the instructions that you refer too, you leave the actual time of the spraying up to Mr Martin and the pilot? A. Yes. Q. So it could have been done, the spraying, any time in that week subject to the weather conditions. Is that right? A. My understanding is it wasn't done until the 6th or the 5th because that was the days that - that MVAS considered it safe to do so. Q. So sir at any time are you saying that within that week when they considered that the weather conditions were appropriate, they could've come around on the fourth and sprayed Innisfallon. Is that the situation? A. They - they could've sprayed - if John had said - rung me on a morning and said we think it's right to spray, we then would've discussed - because this instruction in our original conversation was sometime before - he would've rung and he would've said "Well, I'm right to go this morning. You know, what, what do you need? What do you still need done?" Q. Okay, well he certainly sprayed on the 5th? A. He did. Q. Of July. A. Yeah. Q. You don't depose to any communication with Mr Martin before that event occurring, do you? A. I - I, no. Q. You just left it open to Mr Martin and his pilot to pick the right day. Is that correct? A. No. I think he would've - I think he would've rung me. I - I'm sorry if I left something out. Q. You're guessing are you? A. Absolutely. I - I am guessing. I - I have no clear recollection of the four years ago and just the standard practice would be to do that. HIS HONOUR Q. Mr Bootle, I get from your evidence that you approached your dealings with your neighbour, Mr Barclay, with a degree of caution? A. Very much so. Q. Does it follow when critical events were concerned, such as spraying on the common boundary lines, that you would've made a note of such a conversation you might have had with Mr Martin?

WITNESS: No it doesn't follow. Sorry. We're not very good record keepers. TP183 Q. Okay. Now sir, is this the case that as managing director of Bootle Brothers, you made the operational decisions as at 2005. Is that correct? A. My parents are very much part of the - the operation and but I'm the sort of primary decision maker, yes. Q. And certainly in that position it's what led you to give the instructions to Macquarie Valley Air Service as at about the end of June 2005 to do the spraying. A. Yes it is. Q. Is that right? A. Yes. TP185 Q. You could have just kept ground spraying? A. I couldn't have got over the ground fast enough, that's why we use a plane. Q. You needed the aerial spraying to do things in a shorter amount of time. Is that right? A. I needed the assistance. Q. Because of the weather conditions, or the climate conditions that had been dry from about January through to May, but then some moisture there in June, you were a bit behind with your winter crops. Is that correct? A. Everyone was behind in winter crops that year, yes. Q. Including yourself, is that right? A. Yes. TP188 Q. What I'm suggesting to you, sir, is that you could have continued to do the ground spraying to complete the spraying of your property in July 2005? A. Not in a timely way. Q. So is this the case, sir-- A. I required help. Q. --to speed up the time you chose to engage the aerial spray? A. I think that's one of the reasons for having an aerial sprayer. It costs money. It's a decision made looking at trying to balance all the factors. HIS HONOUR Q. Is one of the factors that you have to balance is the need to consider your neighbour? A. Yes, which I think is ..(not transcribable).. why we modified the rigging spraying and did all this. TP197 Q. Do you agree that it's an important decision for you as person responsible for instructing an aerial applicator of glyphosate to have an understanding of what your neighbours might have planted in the period before the spraying - immediately before the sprayings occurred? A. Yes, hence the--

WITNESS: Could I - could I finish my answer which was--

A. Yes, that it - the - this document was read in combination with phone calls like the one, you know, that I do recall on the 6th where, you know, where I needed to update John and that was why I was - I guess loathe to put something here on a date when we knew that - well - I think John had indicated at the time I did this that, you know, spraying wouldn't occur immediately it would have to occur when - when conditions were right. So I didn't want to be any - any information at this point would be dated and so I put "Stuart Barclay" do not spray here - that's - that's what I meant. And then I updated him. TP198 Q. Do you remember in the first conversation with him in relation to this job what was said? A. I have a sort of a vague - I'm sorry I don't remember specific conversations I can remember the broad scheme of things which would be me asking John would he do a spray job, that kind of thing - and I guess I'm not recalling a conversation - I'm saying - no, I'm recalling parts. The discussion kind of sticks about just, you know, this is the job, the time of year so there were those kind of general things and talking about the - where, you know, areas not - wind - discussing where not to spray I guess. HIS HONOUR Q. Meaning steering clear of Mr Barclay's property? A. Yes. LLOYD Q. I think you gave some evidence earlier in response to a question asked by my learned friend, Mr Dodd, to the effect that your general practice would've been to speak to Mr Martin on most of the days between 30 June when you sent the map and 5 July when the spraying was first done? A. I'm sorry I think my - my evidence was that I would speak to him on a day that he would ring and say "right, we're ready to go" would be the general practice but not - I don't think he would ring every day saying "I can't do it today". I just - I'm not sure that he'd do that. Q. What assessments were you undertaking, if any, about when the spraying should occur and the period between 30 June and 5 July - the aerial spraying that is? A. I was leaving that assessment to John Martin and MVAS. Q. Were you having a look at the meteorological data in that period of time? A. No, not that I could recall. HIS HONOUR Q. Did you look at any activity on Mr Barclay's property in that time? A. I'm sorry. Q. Did you look at any activity on Mr Barclay's adjoining property in that time? A. No I think that was the reason for calling Stuart when we got spraying near his place. LLOYD Q. I take it that you weren't - you don't have a recollection of discussing with Mr Martin whether the wind was blowing in a particular direction that might take any glyphosate on to some sensitive new crops that either you or Mr Barclay had planted in the period 30 June to 5 July? A. I have no direct recollection of the conversations. I think other than the conversation on the 6th which was - I'm not sure exactly the - who called who but there was a discussion that John said, you know, was it right to go then thing. Q. Looking at the map at page 810 what was going on in the period 30 June to 6 July 2005, I suggest, was that there was - you had made a decision that you wanted parts of Bonner sprayed with glyphosate, correct? A. Yes, and other farms, everything prior to sowing is - it was the ideal but.

A. All farms as Stuart was spraying too, yes. I think that's wide spread. Q. In terms of the decisions that were made about how individual paddocks would be sprayed and when, I take it that you agree that you were the one who decided that Innisfallon shouldn't be sprayed? A. I'm not certain whether John said no or on the day or whether he'd asked where it was up to and we decided not to, but I - sorry I don't recall exactly, but I mean certainly, that was part of the discussion that morning not to spray that, yeah. Q. In relation to Innisfallon-- A. From me, makes sense. Q. I'm sorry, I didn't mean too-- A. No sorry, I'm just trying to recall and I think it would have come from me.

LLOYD: Thank you, your Honour. Q. In relation to the decision to spray Barclay's and Walsh's paddocks by ground rather than by air, that was your decision. Correct? A. Yeah, again I think it was in the context of the discussion with John and John said this is where he'd spray and so let's spray with the ground rig. Q. In relation to the Barclay's and Walsh's paddocks, do you remember whether John said anything to you about why he wouldn't spray in those paddocks? A. I think the discussion was about creating buffers and - and that would have been in the context of that. Q. You knew as at the 5th and 6 July 2005 about the risk of drift of Glyphosate when sprayed by air, correct? A. Yes. Q. You also knew, I think you've already told his Honour, that there was a risk of drift of Glyphosate when sprayed by ground rig? A. Yes, I think everyone's aware of Glyphosate spray drift potential. Q. Is it the position that after you spoke to Mr Martin on 6 July, and the view was taken not to spray Barclay's and Walsh's by air, that you made the decision to then spray those paddocks by ground rig? A. Yes. Q. You hadn't checked when you made that decision the meteorological data I take it? A. Rodney our operator would then have done that, as operator. HIS HONOUR Q. Well does that mean that you expected he would attend to that detail or does that mean that you know he did so? A. I know he would always do that. That's very much a part of his training but I think I probably would've taken the view that if it was right for the plane to spray then it was worth at least saying to Rodney to go and check those conditions in the context of that decision. He certainly wouldn't have commenced spraying if he wasn't confident that the- that it was okay to spray. Q. Well that was your expectation of him? A. Yes. That's my knowledge of - of what he would do, very much a part, many occasions he'd ring and say "Can't do that. What else can I do?" on another job. LLOYD Q. Was that the extent of any risk assessment that you did in relation to the risks of ground spraying, ground spray drift from the spraying on Walsh's and Barclay's? A. Myself personally, yes. Q. Yes. A. I delegated that to Rodney. (emphasised) Q. Do you retain any records in relation to any risk assessment that Mr Bourke did? A. No I don't.

Q. You knew when you prepared the document at 810 it was important for you to do some sort of risk assessment before instructing someone to do aerial spraying of Glyphosate? A. No, no. You employ a contractor, especially one with as good a reputation as John to - to do that. That was, that's the point of getting the contractor.

Q. You don't have a recollection of discussing with him that you wouldn't spray on the paddocks indicated on the map on 810 in that period 30 June to 4 July because the wind might have taken the Glyphosate onto your own crops? A. It - no, I - I don't doubt that - that there would've been discussions of wind but I have no recollection of - I think the general view was that John would've got in touch with me when he was ready to go. When conditions were right. Q. What is the distance between say the mid point of the Taxi paddock on Kilburney and the northern boundary of Bonner and Kilburney, taking, for example, the Little Gibson east paddock? A. I'm guessing it's a couple of kilometres.

Q. When you were speaking to Mr Martin on 6 July, I think you've already given evidence you didn't know what the meteorological data was in relation to the wind. A. No I didn't. Q. If it was the position that the wind started to blow to the south, towards Little Gibson's and Paddys on Mr Barclay's property, did you consider that it was possible that the aerial applicator may not be aware of the risk to the crops A. No 99What is apparent from the evidence, both oral and written, and the various photographs is that these properties are so large that weather conditions, particularly as to wind directions on one part of the property, would not necessarily be the same over the whole property. 100It was not put to Mr Bootle in cross-examination by Mr Lloyd for the 3rd and 4th defendant's, any particular conversation that might have been had between Mr Martin (MVAS) or Mr Bootle other then that already vaguely deposed to by Mr Bootle in the passages referred to above. Mr Martin and Mr Shapley's evidence is considered further under the heading Damage by Aircraft Act. 101In Burnie Port Authority at 558/9 the court said that "The fact that a particular substance or a particular activity can be seen to be "inherently" or "of itself" likely to do serious injury or cause serious damage will, of course, ordinarily make characterization as "dangerous" more readily apparent. That fact does not, however, provide a criterion of what is and what is not dangerous for the purpose of determining whether the duty of a person in occupation or control of premises to take care to avoid injury or damage outside the premises is or is not a delegable one." The court then said that a non delegable duty would arise where "the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur is such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions in relation to it." (emphasised) 102The ratio of the Burnie case ought be looked at having regard to the particular factual circumstances. The work contracted by Burnie Ports Authority to the contractor involved considerable welding and the use of a large quantity of expanded polystyrene (EPS) which is an insulating material. While EPS contains retardant chemicals to inhibit ignition, it can be set alight if brought into sustained contact with a burning substance. Once ignited, the substance becomes a liquid fire that burns with extraordinary ferocity, at a rate which increases in geometric progression. The EPS was contained in approximately thirty cardboard cartons that were, to the knowledge of the Authority, stacked together in an area in close vicinity to where the contractor would, again to the knowledge of the Authority, be carrying out extensive welding activities. Obviously, it was essential that care be exercised to ensure that sparks or molten liquid from those welding activities did not ignite the cardboard of one of the stacked containers. If that happened, the likelihood, and what in fact happened, was that the EPS would ignite with the result that the whole of the EPS would become an un-controllable conflagration. 103In addition to the above statement of principal, the majority also said that the evidence established that "the Authority (through one of its employees) was aware that the cardboard containers of EPS were being stored in the roof area near where welding work was to be carried out by the contractor. It is, however, unnecessary that that was so. It suffices for present purposes that the Authority engaged and authorized its independent contractor to carry out work within its premises which required both the introduction of such large quantities of EPS to the premises and the carrying out of extensive welding work within the premises. (emphasised) ... In these circumstances, the Authority, as occupier of those parts of the premises into which it required and allowed the EPS to be introduced and the welding work to be carried out, owed to General a duty of care which was non-delegable in the sense we have explained, that is to say, which extended to ensuring that its independent contractor took reasonable care to prevent the EPS being set alight as a result of the welding activities." 104If one looks at aerial spraying of noxious substances in the light of the principles first espoused in Hazelwood and subsequently in Burnie, it seems to me that there are strong grounds for making those involved in such spraying vicariously liable for any resultant damage. 105Clearly on the one hand such spraying has a benefit to someone and the aerial spraying of noxious substances seems to be commonplace, at least in broad acre farming. 106The decision to use aerial spraying as opposed to ground spraying seems to be a product of a time and cost equation, as the same result can be achieved by ground spraying. 107The undisputed facts in regard to the spraying of glyphosate are that (1)Once in the air it basically cannot be controlled (2)It is damaging to healthy productive plant material on contact (3)It is likely to kill healthy plant material and thus reduce production. 108In those circumstances it is my view that the combined effect of the magnitude of the foreseeable risk of an accident happening, the inability to control the substance once released and the foreseeable potential damage are such that a reasonable person would consider it necessary to take special precautions in relation to it. 109An occupier or user of farm premises cannot, once a decision is made to aerial spray a noxious substance, simply pass over responsibility to either or both the pilot or the aircraft company. Whilst the flying of an aeroplane is a specialised activity that would be beyond the control of someone like Mr Bootle, what is to be sprayed, where and when is not. I would expect that a broad acre farmer would have developed experience of the types of conditions likely to generally impact on aerial spraying activity. In Mr Bootle's case, he was aware that his neighbour had emergent crops which were more likely to be adversely affected by glyphosate than more mature plants. Mr Bootle could have directed MVAS not to engage in spraying on that day, or used ground spray equipment instead, as he was and had already been doing. Because he was 2 weeks behind and needed to have those paddocks treated, he decided on aerial spraying, knowing the nature and quality of the extra risk involved as apposed to ground spraying, which is also not without risk. 110One would have thought that with broad acre farming such as this, there would be a degree of co-operation between farmers, such that spraying events coincide in order to minimise the risk of collateral damage. Unfortunately in this case, that didn't or couldn't occur for some reason. 111In the circumstances I am satisfied, as per Burnie, that liability exists in the first and second defendants as it does for the third and fourth defendants. I am satisfied that each is jointly and severally liable for damage caused by the aerial spraying in terms of the Civil Liability Act and the common law.

2.damage by aircraft act 112The plaintiff's have included a claim under the Damage By Aircraft Act 1999 (Cwlth) (DBAA) against the 3rd and 4th defendants. 113This Act relevantly provides as follows:- 3 Object of Act The main object of this Act is to facilitate the recovery of damages for certain injury, loss, damage or destruction caused by aircraft, or by people, animals or things that are dropped, or that fall, from aircraft that are in flight. 6 Meaning of operator Subject to subsection (2), if a person uses an aircraft, the person is, for the purposes of this Act, taken to be the operator of the aircraft. 7 Use of an aircraft by employees If an employee of a person (the employer) uses an aircraft in the course of his or her employment (whether or not the employee is authorised to do so), then, for the purposes of this Act: (a) the employee is not taken to use the aircraft; and (b) the employer is taken to use the aircraft. 9 Application of Act (4) Subject to subsection (2), this Act applies in relation to the following: (b) aircraft owned by ... a trading ... corporation (within the meaning of paragraph 51(xx) of the Constitution); (c) aircraft (including foreign aircraft) engaged in: (iii) air navigation conducted by a ... trading ... corporation (within the meaning of paragraph 51(xx) of the Constitution); or 10 Liability for injury, loss etc. (1) This section applies if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by: (c) an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or (d) something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c). (2) If this section applies, the following people are jointly and severally liable in respect of the injury, loss, damage or destruction: (a) the operator of the aircraft immediately before the impact happened; (b) the owner of the aircraft immediately before the impact happened; (c) if the operator of the aircraft immediately before the impact was authorised to use the aircraft but did not have the exclusive right to use it for a period of more than 14 consecutive days - the person who authorised the use of the aircraft. 11 Recovery of damages without proof of intention, negligence etc. Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury, loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants. 114It seems that although a claim was also made under the Damage By Aircraft Act 1952 (NSW) that is no longer pursued. That seems to be on the basis that (a) if the Commonwealth Act applies at all it would override the NSW Act and (b) sub section 2(2) of the NSW Act applies only "where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft" which would seem not to include what is involved here, namely the dissemination of a spray not being by definition a person or an "article, mail or animal" in nature. 115It is for the plaintiff to prove that the case falls within the DMAA. In that regard it is argued that the word "thing" in s3 and s10(1)(c) is wide enough to encompass a noxious spray deliberately released from an aircraft. 116The 3rd and 4th defendant's dispute that the Act applies, principally because the Barclays have not established that Mr Shapley or his company were either a financial corporation or a trading corporation within the meaning of s51 (xx) of the Constitution. 117I would accept that there is no question of a "financial corporation" being involved in this case such as was considered by the HCA in State Super Board v TPC (1982) 150 CLR 282. 118In regard to a "trading Corporation" I was referred to the case of R v The Judges of the Federal Court of Australia: Esc P (1979) 143 CLR 190. In that case, Mason J said amongst other things beginning at paragraph 30 30. ... I prefer the minority view as expressed in the St. George County Council Case, in particular the remarks of Barwick C.J. (1974) 130 CLR, at pp 542-543, when his Honour said that to fall within s. 51 (xx.) it is not necessary that a corporation be formed for trading or financial purposes and that "the activities of a corporation at the time a law of the Parliament is said to operate upon it will determine whether or not it satisfies the statutory and therefore the constitutional description". (at p233) 31. "Trading corporation" is not and never has been a term of art or one having a special legal meaning. ... Essentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation. (at p233) 32. ... this Court should, in applying the expression, give effect to the content which it is recognized as having at this time. The expression was no doubt used in the contemplation that the power would extend to such corporations as should from time to time be described as trading corporations and in accordance with the principle that words in the Constitution are not restricted to the denotations which they had in 1900. In Lansell v. Lansell [1964] HCA 42; (1964) 110 CLR 353, at p 366 Taylor J. said ". . . although the meaning of these terms does not change, their denotation must extend as new concepts develop". The distinction between meaning and denotation is not without its difficulties. However, for present purposes they need not be pursued. Suffice it to say that, even if the expression was rather less extensively applied at the turn of the century, it nevertheless denoted a corporation which was engaged in trading activities in the sense already explained. (at p234) 33. Not every corporation which is engaged in trading activity is a trading corporation. The trading activity of a corporation may be so slight and so incidental to some other principal activity, viz. religion or education in the case of a church or school, that it could not be described as a trading corporation. Whether the trading activities of a particular corporation are sufficient to warrant its being characterized as a trading corporation is very much a question of fact and degree. ... (at p234) 119As previously stated, whilst MVAS ran a crop dusting business and is a party to these proceedings, the aircraft in question was owned by Bundambar P/L who is not a party. It is also the evidence that Mr Shapley the 4th defendant was an employee of Air XS P/L (his own company) and that company is also not a party to these proceedings. 120The Act has some unusual features. S6 defines operator and s10(2) and (2A) (not relevant here) sets out who may become liable by virtue of certain factual circumstances. However s11 applies absolute liability to all or any of the persons jointly and severally liable under the section. 121Mr Martin, a director of MVAS and Bundambar said at TP 219 that Bundambar owns aircraft and buildings and hires aircraft to MVAS. At the relevant time Bundambar had hired the aircraft in question to MVAS for a fee. In his statement which begins at TB3 p730 Mr Martin says amongst other things:- My standard and usual practice in aerial spraying operations which are to be conducted by MVAS relevantly is as follows: a.I obtain and vet the initial instructions from the client. These instructions usually include: i. map(s) of property indicating what paddock(s) are to be sprayed, power lines, roads, houses, susceptible crops, water courses and compass points; ii. type(s) of crop to be sprayed eg. wheat, canola, fallow, etc; and iii. chemical type and chemical rate together with water spray volume and from whom the chemicals are to be supplied; b.I then prepare flight plans and organise the chemicals to be sprayed; c.I then instruct the contracted pilots to carry out agricultural spraying operations. This involves a formal verbal briefing advising them of any hazards e.g. power lines, susceptible crops, waterways, houses and vehicular traffic; d.as part of my initial vetting of the job I assess the risk of spray drift and put in place any measures to eliminate or minimise its occurrence; and e.when undertaking this procedure I apply 24 years of experience and training on the job. As at July 2005 I and/or MVAS had the following expert qualifications in relation to aerial agriculture: a. Spray Safe Accreditation with the Australian Aerial Agricultural Association (AAAAs). To obtain this it was necessary to undergo an independent audit regarding all facets of an aerial spraying operation including aircraft, management and working facilities. This accreditation was originally achieved in 1990. I have been involved with the operation and management of MVAS for the past 24 years and during that time have attended numerous seminars, workshops and conventions addressing all the issues associated with aerial spraying and spreading. 122Mr Martin then went on to say that "On or about 5 July 2005 MVAS was engaged by BBM. MVAS was contacted by phone by Richard Bootle to conduct an aerial application of Glyphosate on 'Bonna'. Following this conversation MVAS received a facsimile from Mr Bootle of a map of 'Bonna' with the area to be sprayed marked thereon. MVAS contacted the Contractor initially by telephone and then discussion in person to undertake the 2005 Application. The 2005 Application was conducted over two days on 5 July 2005 and 6 July 2005. Mr Murray Shapley flew aircraft registration VH-PTU on behalf of the Contractor. This aircraft was an Air Tractor type of aircraft. Prior to carrying out the 2005 Application Murray Shapley was briefed on the 2005 Application and was provided with maps of the area to be sprayed. Prior to conducting the spraying consideration was given to weather details, wind speed and direction, temperature and humidity. On return to base after completion of the 2005 Application Murray Shapley advised me of the wind speed, direction and temperature. I then filled out the spray order forms noting those details". 123Mr Shapley gave evidence commencing at TP 260 in addition to his statement which appears at TBP 744. In that statement he says amongst other things "I presently contract my services as the chief qualified agricultural pilot to Macquarie Valley Ag. Services Pty Ltd (ACN 067175 697) ("MVAS") through AirXS Pty Ltd (ACN 084 253 234) ("AirXS"), of which I am a director and shareholder. As at 1 July 2005 1 contracted my services as a pilot via AirXS. My commercial pilot licence is Australian Registered Number ("ARN") 191134.1 hold a Class Grade 1 (Type A) Agricultural Pilot Rating and a Class VFK. Ag (Type A) Night Rating. I became a qualified agricultural pilot on 14 October 1981. As at July 2005 I had 11,500 hours total flying time of which approximately 10,250 hours were in an agricultural aircraft. As at July 2005 I had a pilot medical certificate issued on 4 May 2005 which expired on 4 May 2006. As at July 20051 had the following expert qualifications in relation to aerial agriculture: a. EPA (Pilot Pesticide Rating) Licence No. PI 66 for which I had to sit and pass an examination. This was issued to me on 1 February 1999. b. Spraysafe Pilot Accreditation No. 160 which entailed sitting for examinations covering all aspects in the Aerial Agricultural Association of Australia ("AAAA") Operations Manual. 124AirXS was contracted by MVAS to spray a property known as 'Bonna' located at Nyngan, NSW in early July 2005. The contractual arrangement between AirXS and MVAS was an oral agreement. John Martin (director of MVAS) telephoned me, offered the spray jobs to AirXS and I accepted. My usual practice prior to conducting any spraying for MVAS was to discuss in person with John Martin the instructions and briefing details for the application. Although I cannot recall the specific discussion on this occasion. I would have said words to the effect of: "John, where are we spraying? Are there any susceptible crops? Are there any potential hazards? What are the forecast weather conditions?" Mr Martin would answer my questions. Unless satisfied by the answers I would not undertake the application. He would also provide me with maps of the area to be sprayed. Attached and marked "A" is a map which identifies (with the words "area sprayed") the paddocks sprayed by me on 5 July 2005 and 6 July 2005. 125Prior to undertaking the aerial spraying of Roundup CT Olysophate ("the Chemical") on 'Bonna' on 5 July 2005 ("the First Application") and on 6 July 2005 ("the Second application") I first checked the local meteorological conditions in the area to be sprayed with the weather station. This was normal procedure. As well as giving consideration to the forecast weather conditions, I also planned the First Application and the Second Application with MVAS with particular emphasis on any crops susceptible to the Chemical in the nearby vicinity. For both the First Application and the Second Application the buffer zone (that is the distance from any susceptible crop to the Chemical) was a minimum 1700 metres. The pre-flight briefing with John is as set out above. 126During the First Application and the Second Application I flew aircraft registration VH-PTU ("the Aircraft"). The Aircraft was an Air Tractor AT602. I obtained the relevant latitude and longitude for the First Application and the Second Application from John Martin and entered the same into the Aircraft's GPS unit. The Aircraft was setup for the First Application and the Second Application as follows: a. the boom was fitted with 38 nozzles, type C/P with an airstream angle of 30 degrees; b. the last nozzle was set at 63.5% of the wingspan; c. there were no nozzles under the fuselage. d. the nozzles were placed 27 centimetres apart; e. endosulphan calibrated booms were used for large droplet placement; and f. the swath width was 25 metres. The reason this setup was used in the Aircraft was because it lowers the risk of spraydrift. The Aircraft was equipped with a smoke generator, The smoke generator was used during the First Application and the Second Application on a regular basis in order to check the wind direction, speed and conditions prior to spraying. 127 At TP 261 Mr Shapley was asked:- Q. Is there anything in that book that relates to the Bootle job on 5 and 6 July 2005? A. Yes, the receipt for August 2005. Q. And how is it that it's the receipt for August 2005 that relates to work done in July 2005? A. Because the payments are made a month behind the actual work. Q. How does Air XS charge Macquarie Valley for work that's done? A. Air XS doesn't charge Macquarie Valley. Q. How is Air XS paid by Macquarie Valley? A. By cheque. Q. And how are the payments calculated? A. Through Macquarie Valley's invoice book. . 128Further at TP 264 - 266 he was asked as follows:- Q. In relation to what you say in paragraph 3, do you know what position you formally hold with Air XS? A. A pilot's position. Q. And as at 5 and 6 July 2005, does that answer apply to that period? A. A pilot's position, same answer. Q. Can I show you this document? What is that document? A. This is a group certificate from the Australian Tax Office. Q. And who is the group certificate for? A. Air XS. Q. Does it have anything to do with you in your personal capacity? A. Yes. It shows payment from Air XS to me. Q. Is there any written contract between Air XS and Judith Fleming? A. No. Q. Who is she? A. My wife. Q. Does she do any work for Air XS? A. Administrative work. Q. Is she also a director? A. I believe so. Q. Is this the situation, sir, that you could be honestly described as the chief pilot of Macquarie Valley Ag Services, is that right? A. Yes. Q. You have been there for 24 years, is that right? A. That's correct. Q. Sir, as far as the arrangement between yourself and Macquarie Valley, according to the invoices there you get paid 20% of what they charge out for the job, is that right? A. That's correct. Q. Mr Martin allocates out the jobs, is that correct? A. Yes. Q. But do you work solely for him - or Macquarie Valley, I should say. A. I haven't done, but, no. Q. As at 2005, did you work consistently for Macquarie Valley? A. Yes. Q. Did you work for anyone else in that calendar year? A. I don't believe so, no. Q. Sir, could I take you to your statement that you've got before you? A. Sure. Q. At paragraph 10 you refer to - at the last sentence, "Mr Martin telephoned you, offered the spray jobs to Air XS and you accepted, is that right? A. That's correct. Q. This just wasn't a one off transaction, it was more a case of you had done work for him in the month of June, you did work for him in the month of July and I suppose you did work in the month of August as well, is that right? A. Correct. Q. He gets in touch with you and allocates you the jobs, is that correct? A. He offers me the jobs. Q. Right, and he was operating three planes at the time, is that correct? A. I don't remember. Q. It might have been a couple of planes - without putting an accurate figure on it? A. Yes. Q. Sir, at paragraph 11 you say that you can't recall the particular details, but your usual approach when Mr Martin gives you jobs would be to ask, "Are there any hazards, what's the weather like, what are you spraying?"? A. And what are susceptible crops in the area. Q. Sir, as far as on this occasion at paragraph 13 you refer to checking the local meteorological conditions in the area to be sprayed with the weather station, is that right? A. Yes. Q. I take it that is the weather station at Warren Airport? A. Yes. Q. Is that about 70 kilometres as the crow flies - or as your plane flies - to the property known as Bonner? A. Yes. 129Under the DBAA a person who uses an aircraft is deemed to be the operator. In this case that would be Mr Shapley. There could be no real suggestion that MVAS, who authorised Mr Shapley's use of the aircraft, was somehow controlling the navigation of the aircraft, other than in a general sense ie it was to be used for spraying and not a trip to the Gold Coast. Some of these terms of art used in the act are not defined such as "uses" and "navigation" so must be taken to have their normally understood meaning. Mr Lloyd for the 4th defendant argues that Mr Shapley was using the aircraft as an employee of Air XS P/L and thus escapes liability under s7 of the Act and because Air XS has not been sued there is no liability, on anyone at all under the Act. 130However it seems to me that MVAS would be liable under s10(2)(c) because Mr Shapley did not have the exclusive right to use the aircraft other than for that particular operation. That would make MVAS, who authorised Mr Shapley to use the aircraft on that day liable under s10(2)(c), they having hired it from Bundambar. Lest it be said that there is no evidence to support that contention, when one looks at Mr Martin's and Mr Shapley's statements and evidence it is quite clear that Mr Shapley and/or Air XS could only use the aircraft on a day to day basis subject to jobs being available from MVAS. There is no evidence that Air XS or Mr Shapley had any right to retain the aircraft overnight or indeed for any other purpose. 131Going back to s7, was Mr Shapley a true employee or was he in effect Air XS P/L? All that is known about Air XS is that Mr Shapley was a director and shareholder (TBP 744) and that it issued him with a group certificate (TP 264 exhibit D3.5). 132There was no written contract between Air XS and either Mr Shapley or his wife, who apparently did administrative work for the company and was also a director. 133The law permits the setting up of companies such as Air XS which, for Mr Shapley, may provide a measure of tax relief and splitting of income, as seems to be the case here, where Mr and Mrs Shapley's PAYG payment summary for 2005/2006 shows a total payment to Air XS of $43,200 which was divided between each in the sum of $21,600. For all intents and purposes however I find that Mr Shapley was the company and the company was Mr Shapley, he being the pilot and sole income provider for the company. The relationship with MVAS was that he would receive 20% of the amount MVAS would charge out for its services (TP 265.14). In my view Mr Shapley cannot hide behind the corporate veil and is not, for the purposes of s7 of the Act, an employee as that term is normally used. 134The 3rd and 4th defendant's also argue that s10(1)(c) or (d) do not apply because the spray that was used was not a "thing that dropped or fell from an aircraft". Various dictionary definitions of the word "dropped" and "fell" were relied on to suggest that those expressions did not encompass what happens in the case of a deliberate act. 135It is argued that these words only apply to "inadvertent" acts or omissions and not to "deliberate" acts as is the case here. 136For the purpose of the argument I accept that the rationale for the DBAA is is as stated by Campbell JA in ACG v Cook (2008) NSWCA 161 at paragraph 115 namely "to improve compensation for members of the public who suffer personal injury or property damage as third parties on the ground, in an air accident". His Honour used the words air accident on a number of occasions during his judgement. It is argued that the deliberate spraying of glyphosate could not be described as an "air accident". However at par 133 His Honour also said that "These statements (ie of the Minister) seem to me to be a reflection of the "great majority of losses" in which the legislation would operate". In other words the legislation was not confined strictly to those particular circumstances. 137In fact the words "air accident" or "accident" appear nowhere in the legislation. The act does not define the word "impact" nor the words "dropped" or "fell". The Act is silent as to whether something might be deliberately dropped or allowed to fall from an aircraft, although the word "dropped" would tend to suggest a degree of deliberation. What is clear is that the act is designed to relieve the sufferer of damage on the ground from having to work out who an actual tortfeasor might be in particular circumstances and then sheet home a duty of care and a breach of duty to that individual or corporation. If, for example, an aircraft part became detached from an aircraft and fell injuring someone or damaging property, the victim does not have to track down who manufactured the part, who installed it, who maintained it or who tested it, all of whom could be different legal entities. That task becomes a matter for the operator of the aircraft to pursue because the operator is deemed liable under the act. 138We often hear of large commercial aircraft having to dump fuel for some purpose, usually to lighten an aircraft in an emergency. I ask rhetorically that if such an event occurred over farmland and a farmers crops were damaged, does he or she have no recourse under the Act? If the pilot or a passenger of a light aircraft threw something out of a window and it caused injury or damage, is that not covered by the Act? I have no doubt that such events would be covered. 139Even if Mr Lloyd's argument is correct about the Act only applying to air "accidents" ie non deliberate acts as opposed to deliberate ones, then in the present case if the deliberate spraying of Mr Bootle's land resulted in the accidental drift of spray onto a neighbours crops then that, it seems to me, is a sufficient enlivenment of the word "accident" to justify the application of the legislation. I am sure there was no deliberate intention by anyone to spray Mr Barclay's crops. 140I am satisfied that the Act applies and that Mr Shapley and MVAS are vicariously liable for any damage caused to Mr Barclay's crops.

DAMAGES 141Neither damages nor the method of calculation are agreed and are not without a degree of complexity. 142There are two principle areas of damage - damage to the wheat crop and damage to the lucerne crop. Each needs to be separately calculated as each involves a different approach, wheat being an annual crop and lucerne being a fodder plant that can live for a number of years.

WHEAT 143I will first deal with the wheat crop in the relevant paddocks being "Paddys", "Little Gibsons" and "Sues". I have not calculated the damage in regard to the other two paddocks because of my findings on liability in respect to those paddocks. However if my findings on liability are over turned my findings as to methodology would apply to those paddocks. 144One of the difficulties in regard to the wheat crop is that there is no historical data available. For example if their was a history of wheat production in a particular paddock going back a number of years in the past it would have been possible to compare previous years cropping figures with the year in which the glyphosate incident occurred to reach some conclusion as to the measure of damage sustained. 145Some figures exist for 2003 and 2004 and are set out in TB3 PP 630, 632 and 634 being an annexure to Mr Bentley's report. However as can be seen from the table below, the years available do not provide any reasonable basis for a legitimate comparison to be made. 146It is also apparent that despite the differing hectare areas being sown, 2004 was a disastrous year for grain production compared to the previous year while 2005 showed substantial improvement. PADDOCK YEAR AREA YIELD 2003 178.87 2,174.48 GIBSONS 2004 107.54 189.03 2005 192.80 1,183.51 2003 260.70 2,162.26 PADDYS 2004 338.85 214.25 2005 285.67 1,264.54 2003 121.95 1,598.49 SUES 2004 122.98 382.87 2005 127.16 1,108.43

147Further each paddock is very large and there is no available history of how that paddock might have been treated in the past, for example by soil enhancement or treatment or even previous crop sowings. Nor is there any evidence as to whether or not there are significant soil variations within a paddock although, to some extent, Mr Ghirardello deals with these issues in his assessment of damage. 148After the glyphosate event the paddocks were physically inspected by Mr Barclay, Mr Nicholson and Mr Ghirardello, so that each of these persons was able to view the actual damage some 4 - 6 weeks post the event. 149Mr Bentley provided an expert report on damage for the plaintiffs, but was too ill to attend court at anytime during the protracted hearing. Mr Nicholson was asked to provide a second report to support Mr Bentleys report. Mr Bentley did not visit the area or view any of the damaged crops. 150Set out below is a table that attempts to reconcile Mr Barclays own calculations as to damage, Mr Bentleys calculations and Mr Ghirardello's. Essentially Mr Bentleys calculations mirror Mr Barclays except that he has added a margin of 40% to Mr Barclays figures for the reasons stated in his report and referred to in the table. Name of paddock Barclay Bentley Ghirardello The direct comparison of Paddys Affected versus the Unaffected is easily quantified. In other words, in its undamaged state, it is likely that Paddys would have yielded 1.41 tonnes per hectare but instead due to the set back from the Glyphosate injury, the crop did partially recover to yield 1.06 tonnes per hectare, a nett calculated loss of 0.35 tonnes per hectare. AREA:139.57ha Mr Bentley assumed the losses as indicated by Mr Barclay in the preceeding column but then added 40% on the basis that he was of the opinion that Mr Barclay had underestimated the potential yields by that factor. Mr Bentleys estimation was based on his "experience relating to turbulence and edge effects of plumes and on the wide distribution of the plume as shown in Data Source 3". Overall, from the Paddys damaged area, this then represents a total loss for the 2005 grain harvest of: Paddys = 78kg/ha x 139.57ha This applies to all the grain loss assessments below. Paddys Affected =10.88T x $172/T $2,619.90 = 0.35 t/ha x 129.5 hectares = $1871.36 = 45.32 tonnes loss. = $7,795.04 Both the early plant wheat, 18 June 2005 and the later planted portion of Little Gibson were affected by Glyphosate. No differentiation for yield difference has been allowed between early versus late planted wheat. This is an AREA: 192ha advantage to the first and second plaintiffs. Little Gibson = 535kg/ha x 192ha $24,730.16 Therefore, the yield comparison for Little Gibson (early plus late) has been based against Paddys Unaffected early plant. Hence: = 102.7T x $172/T 1.41 t/ha (Paddys Unaffected) - 1.31 t/ha (Little Gibson) = $17664.40 = 0.10 t/ha x 181.1 hectares = 18.11 tonnes loss = $3,114.92. Sues Affected. Normally, the comparison for Sues Affected versus Sues Unaffected AREA: 40.07ha would occur from within the same field. If that were the case, Sues unaffected 1.10 t/ha did not perform as well as Sues Glyphosate affected area @ 1.15 t/ha. The first and = 84kg/ha x 40.07ha second plaintiffs argued that a portion of Sues affected area had previously been "deep = 3.36Tx$172/T tilled" and as such placed Sues affected at a disadvantage and therefore wanted the = $577.92 comparison for Sues affected against Paddys Unaffected. This in turn, provided the first Sues + Downgrade from APH2 ~ AUH2 $3,615.53 and second plaintiffs an advantage, to which I agreed. in effect I have supported the first and second plaintiffs with an additional 12.11 tonnes grain, (a nett value of $ 1,973.93) whereupon normally the compensation to Sues East would have been $ nil. Thus, the "loss" to Sues East = 51.4T x $39/T (difference) affected is supported as: = $2004.60 + ($577.92) 1.15 t/ha -1.41 t/ha (Paddys Unaffected) = $2582.52 = 0.26 t/ha x 46.6 hectares = 12.11 tonnes. = $2082.92 plane:$200.00 our agronomist:$1,500.00 loss of contract spraying job:$ 12,000.00 lucerne seed:$6,400.00 Plane $200 personal time:$2,887.00 Agronomist $1,500 extra harvest time:$2,518.00 Contract spraying$12,000 Other incidental claims legal:$1,650.00 Lucerne seed$6,400 computer/stationary costs:$300.00 Extra harvest time$2,518 difference in value; Grain downgrade $1,755 auh2 - aph2 (triangles) 45t x $39/t: (see! note)$1,755.00 Harvest scrutineer $4,967 harvest scrutineer: (2483.55acres x $2 for mapping)$4,967.10 interest:(@ 9.05%) $1084.73

151This 40% was the subject of much cross-examination of Mr Nicholson by the defendants. He supported that figure even mentioning a figure of 60% (See TP 425, 426, 427, 430- 433). However what it all boils down to is Mr Nicholsons evidence before me at TP 33 and 34 that the 40% is a "fairy figure" and really amounts to scientific "speculation". In my view the plaintiff has failed to establish a sound reason why the loss figures should be inflated by 40%. 152Unfortunately Mr Bentley wasn't available for cross -examination because of his illness. However I see no rational reason to inflate the damage sustained by 40% where two of the assessors of the damage actually inspected the physical damage to the crops at a time and when the extent of the damage would have been readily visible to the eye. Those persons were Mr Barclay and Mr Ghirardello and while Mr Nicholson also inspected the damage, his initial report was directed more to causation rather then damage assessment. But even he acknowledges that 40% seems at best to be some sort of guesstimate which in my view may have some relevance where the damaged crops have not been inspected or are unable to be inspected but not to this situation. 153The significant area of dispute on the tabled figures relates to "Little Gibson" where the plaintiff claims $17,664.40, a figure accepted by Mr Bentley, whereas Mr Ghirardello's figure of $3,11.92 is substantially less. Mr Ghirardello's calculations are set out at TB4 (Annexure 33) at PP1077 - 1081. The figure he reaches is based upon a comparison between the unaffected area of "Paddys" which yielded 1.41 t/ha to the actual yield of "Little Gibson", which was 1.31 making a difference of 0.10 for 129.5 hectares at $172 per Tonne. 154"Little Gibson" is 178 hectares. It was in effect totally affected by glyphosate. However an area of just 0.38 hectares was used as a control measure by Mr Barclay and that very small area yielded 1.716 t/ha compared to the damaged area that yielded 1.181 t/ha, a difference of 0.535 t/ha at $172 per tonne. Whilst there is a disparity between Mr Barclay's hectareage measure of 192 ha, Mr Bentley's of 178 ha and Mr Ghirardello's of 181.1 ha, the significant difference in a monetary amount arises out of the use of 0.38 of a hectare as a control. 1550.38 of 180 hectares as a percentage is 0.68% of the whole area. I do not accept that such a small control area is a valid reflection of the likely crop yield for the whole hectareage. 156As can be seen "Sue's", "Little Gibson's" and "Paddy's" paddocks adjoin each other side by side. Much larger control areas were available for comparison in "Paddy's" (140.89 hectares out of 282 hectares) and "Sues" (37.47 hectares out of 123 hectares). Those control areas yielded 1.312 t/ha and 1.230 t/ha respectively. The damaged areas in those paddocks yielded 1.234 t/ha and 1.146 t/ha respectively making a total tonnage loss per hectare of about 0.081 t/ha. Mr Ghirardello has used a figure of 0.10 which makes far more sense than the methodology used by Mr Barclay and Mr Bentley. 157Indeed, overall, I prefer Mr Ghirardello's assessment of the damage to the wheat crops for the areas in question having regard to his methodology and his mathematics. In particular I do not regard a 0.68% comparison area for "Little Gibsons as being either reasonable or valid. 158As far as damage to wheat and other incidental expenses are concerned I would allow the plaintiff as follows: $ 7,795.04 for Paddys $ 3,114.92 for Little Gibsons $ 2,082.92 for Sues $ 200.00 for plane hire $ 1,500.00 for agronomist $12,000.00 for loss of contract spraying subject to this being a gross figure and the plaintiff would only be entitled to the nett profit he would have made from the contract. $ 6,400.00 for lucerne seed $ 2,518.00 for extra harvest time $ 4,967 00 for harvest scrutineer

LUCERNE 159Some of the fields were sub sown with lucerne. Lucerne is grown as fodder for cattle or sheep. The method of calculating the potentiality of a lucerne crop is by having regard to the Dry Sheep Equivalent (DSE). Lucerne is an annual crop and is regarded as being quite draught resistant, sending roots down many metres into the subsoil to tap reserves of moisture. It can also be cropped and allowed to continue to grow. It generally is able to out-compete invasive weeds such as "galvanised burr" which is a feature of the damages claim for the plaintiffs. It lasts about 3 years. 160The first defendant has made detailed written and oral submissions on this area of damage. The only paddock now in relevant contention is "Sues" which Mr Nicholson estimated suffered a 56% reduction of establishment. The plaintiffs have calculated their losses as far as lucerne is concerned on the basis of the loss of the ability to graze stock thereon to the full extent. Presumably this would have been by way of agistment because the Barclays did not have any stock at the relevant time. 161The defendants dispute firstly the quantity of plant material that the Barclays have assumed would be available in a draught year and secondly that the agistment rate for a yearling animal is the same as for a younger animal. 162As to the first, the Barclays must prove that, but for the spray drift damage, the lucerne would have been profitable to the extent claimed. 163The defendants do not dispute that an agistment rate of $4 per head per week for an 11 DSE steer is unreasonable, but dispute that the same rate would apply to a 9 DSE animal. That dispute has been conceded in favour of the defendant by the plaintiff in his submissions. 164One criticism between Mr Bentleys assessment and Mr Nicholson's, which are not in agreement anyhow, is that Mr Bentleys calculations are over a 65 week period whereas Mr Nicholson's are over a 180 week period. The defendants say such a period invokes concepts of remoteness of damage and failure to mitigate, given that the crop could have been replanted in such a long time frame. 165Mr Bentley in his calculations of loss assumed that 1 hectare in that area could feed 6 sheep ie 1 hectare had a DSE of 6 per year, based upon a normal year. However, as the 1st defendant is at pains to point out, 2005 was not a normal year. The rainfall was sparse with no rain falling in January, March, April, May and October, 1mm in September and 2.5mm in August. I have carefully looked at Mr Sexton's calculations in his submissions at paragraphs 15 - 38 and would agree with them, absent contrary submissions from the plaintiff. 166Mr Nicholson does not support Mr Bentley's calculations arriving at a figure of $38,016 compared to Mr Bentley's figures of $50,544 and $61,776. The lucerne was sprayed out in April 2007 to control galvanised burr which gives rise to Mr Bentley's 65 weeks. However if Mr Nicholson's calculations are also applied to a 65 week period, then the loss of production is around $14,000. 167Whether or not the eventuation of galvanised burr was the result of the reduced lucerne crop, a fact not proved, the point of calculation must end at around April 2007. 168The 1st defendant tendered an article entitled "Forecasting lucerne productivity under dryland farming conditions in central-western and western NSW" (see exhibit D1.14) by Alison Bowman, W. Smith and J. Brockwell dated in 2004. This was a study done in the districts of Condobolin, Trangie, Cobar and Wentworth. Amongst other things the article concluded that:- "At least 6 mm rainfall over not more than 2 d(ays) was regarded as the minimum necessary for lucerne to recommence growth after a period of non-growing days (Snaydon, 1972).

Linear regression analysis was used to calculate the relationships between annual rainfall and (i) annual DM production, and (ii) annual amounts of N fixed.

Regression analysis showed that there were significant linear relationships between annual rainfall and DM production and between annual rainfall and the amount of N fixed. This demonstrates that annual rainfall itself is an indicator of lucerne productivity irrespective of distribution, evapo-transpiration or soil temperature. ... these forecasts should be regarded with caution because the basis for the projections is a single, albeit comprehensive, data set." 169Mr Nicholson did not dispute the correctness of this article. He also calculated that the establishment reduction of lucerne in "Sues" paddock was 56%and in "Back Cultivation" it was 80%. 170What is important in order to calculate the lucerne loss is to work out what was likely to have happened in that year had the spray event not occurred. In other words you can't work on a hypothetically "normal" year because 2005 was not such a year. As I understood it, the amount and timing of the rainfall was likely to have governed things like how much feed there was available and whether it could be grazed and how much time would be required after grazing to allow the crop to recover on each occasion. This would be particularly relevant to those lengthy periods of no or little rain, including periods in December 2005 and January 2006 being at the height of summer. 171What is quite clear is that while lucerne will not necessarily die without periods of water, it either does not grow or grows very slowly. 172The written submissions on damages by plaintiff's counsel relied heavily on Mr Bentley's report and the oral submissions were quite brief. What appears to be accepted by Mr Dodd though is that the correct period over which to assess the lucerne loss is Mr Bentley's 65 weeks and not Mr Nicholson's 180 weeks. 173In an exchange at P 89 the following occurs, parts of which I have emphasised:- "HIS HONOUR: Well, you can't just simply look at a period of 180 weeks, surely. I mean, do I understand what your saying is, that because of the degradation of the Lucerne that encouraged a growth of galvanised burr which then led the plaintiff to have to spray after 65 weeks to get rid of everything? DODD: Yes, your Honour. HIS HONOUR: Well, presumably, after that he did something else. He didn't just spray it and leave it. I presume he planted something else there then, did he? DODD: I'm not sure. I must admit, your Honour, there's a gap in the evidence in terms of what happened after that point of time. HIS HONOUR: Well, if he sprayed it and put another crop in there, I mean, you've got to offset that against any claim for damage extending on the three years, really. DODD: I think your Honour is right. I can't demur with what your Honour has put to me, seriously. However, your Honour, it still in my submission results in the - based on the concession - that still results, your Honour, in the assessment that is in paragraph 17 conveniently in my friend's submissions of the just over $50,000 that Mr Bentley has assessed and if you want to proceed on - my friend then criticises the reduction to the nine DSE steers and as I said I don't press that. I should say, your Honour, the reference in paragraph 28 to the academic research - I'll wait for my learned friend's submissions to tell you what that is sourced from but also note Mr Nicholson's evidence yesterday in terms of the way in which Lucerne deals with the absence of rain and the like which is probably dealt with - which deals with the following paragraphs, but your Honour, it would take into account what my learned friend has put in terms of there being an 85% utilisation would still, in my respectful submission, lead to 85% of the 50 odd thousand as assessed by Mr Bentley, but that your Honour still leads to that being assessed in the order of $40,000, being 80% of $50,000.

I won't say a broad brush, your Honour, because I'm not asking for a broad brush, but what's required, in my respectful submission, is an approach to damages which can be based on a series of criteria given weight in the evidence but then your Honour applied in the situation where we talk about so many hundreds of hectares and so many millions of plants that it doesn't have to be if I can put it down to the last cent. Mr Lloyd, for example, yesterday that in terms of Mr Nicholson's reduction at - he put in 50% deduction on a particular and said well, whilst that I can't put anything more on that than that's what I feel is the right figure. He says, you know, to that point it's a speculation. Yes, that's correct. It's based upon his 30 years worth of experience being an agronomist in the area but it's still a lot of (not transcribable) based on - and that might be the best that you can possibly do in the circumstances. But, your Honour, that's not surprisingly and either I'm making - can make analogies to personal injury cases, an assessment of economic loss is not just a matter of sitting down with a calculator and necessarily saying, well, I reduce that for 15% for vicissitudes because there's some sort of magic in that figure. The authorities are quite clear that that's not the approach that one takes when assessing any damages let alone in a case such as this where Mr Ghirardello would still be out in the field counting the plants. So, your Honour, what it means then your Honour and I'll redo the figures for the grain loss, the additional cost of certainly pursuit - looking at page 10 of my submissions. The grazing loss, your Honour, I've conceded in the order of about 40,000 as opposed to the 60,000 and taking into account Mr Sexton's submissions and then your Honour, matters of interest and costs will probably need to be subject to whatever your Honour finds on a range of other aspects". 174Whilst the Bentley report is relied on by the plaintiffs, without evidence from Mr Bentley by way of explanation for his calculations, parts of his report are difficult to follow. In particular, he does not appear to have taken account of the actual climatic conditions over the period in question. Mr Bentley said this of lucerne generally:- "In my experience lucerne is very effective in drawing water from the soil profile to depth". 175Mr Bentley was asked to assume that lucerne which had been sown in 2005 in Sue's Paddock and Back Paddock in 2005 was damaged by spray drift in 2005; that on 17 April 2006 Steve Nicholson conducted counts of lucerne plants in Sue's and Back Paddocks; that the data collected by Steve Nicholson was a factor in Mr. Barclay's statement to him on July 4, 2007 that the carrying capacity was about ten percent of normal. Also based on the statement that "A satisfactory pasture for year-round production in the more reliable areas of the wheat belt has in excess of 30 plants/m2 at establishment, with 15-20 plants /m2 remaining the following winter. In the marginal cropping areas, productive lucerne pastures tend to have densities in the range of 7-12 plants/m2" he assumed the effective plant stand in Sue's and Back Paddocks in 2006 was well below those levels 176Mr Bentley's methodology involved establishing the loss of carrying capacity and to then use a known agistment rate to determine the economic loss. This is the approach which he adopted as being a much more clear-cut and simple approach. 177He adopted a carrying capacity of 6 DSE/ha. A DSE or Dry Sheep Equivalent is the standard used to compare the different feed requirements of various classes of livestock related to the requirement of a 50 kg wether which is rated at 1 DSE. NSW Agriculture uses 8.5 DSE/ha but, in his experience on the land in question, such levels were difficult to achieve consistently on a longterm basis. He also adopted a rating of 11 DSEs for yearling beef cattle. 178He also assumed that the area available for grazing in Back Paddock and Sue's Paddock was the same as the arable area for each paddock and the total grazing area was at least 396 hectares; that the lucerne stands were damaged in the first week of July 2005; that the agistment rate for weaners during 2006 and 2007 was $4.00 per head per week, a figure not in dispute; that without the spray damage the lucerne would probably have been sprayed out in October 2009 in preparation for winter crop in 2010; that a balanced rotation of winter crop and lucerne was carried out; and that Back Paddock and Sue's Paddock were not programmed to be sown to winter crop in 2006; that had Back Paddock and Sue's Paddock been sown to winter crop in 2006 there would have been an imbalance in the normal "winter crop / lucerne" program with a larger than programmed area of winter crop sown in 2006 179From the above assumptions and from discussions with Mr Barclay on 4 July 2007, Mr Bentley reasoned that the damage prevented normal grazing for fifteen months from January 2006 to April 2007 when it became essential to spray to try to control galvanised bur which had invaded these two paddocks and that during the period from January 2006 to April 2007 a grazing pressure of approximately ten percent of normal was used. 180He initially calculated the economic loss to be $50,544 after allowing for and deducting actual utilisation of ten percent based on at least 396 hectares being unable to provide 6 DSE / ha for sixty-five weeks from January 2006 to April 2007 for 216 yearlings requiring 11 DSE per head. 181However in his opinion this was conservative in that it assumed yearlings with a DSE rating of 11 (ie for yearlings weighing 350 kg and gaining weight at a rate of 1 kg/head/day). In his experience this was at the top end of the expected weight gains and was unlikely to be achieved on lucerne stands in the area. The same calculation using a DSE rating of 9 for young stock weighing less than 300 kg/head would result in an economic loss of $61,776 after allowing for and deducting actual utilisation often percent from 264 head of stock for the same period. This is a point of contention raised by Mr Sexton and is referred to in his submissions which I have accepted, and are set out above, and is no longer pursued by the plaintiff. 182Mr Bentley was of the opinion that the attempt by Mr. Barclay to limit the damage by spraying in April 2007 in an effort to enable him to sow winter crop in 2007 may not be very successful and that the effective damage may continue to at least December 2007. However there is no evidence as to how that situation in fact turned out. 183Sue's paddock is 123 hectares. Back paddock is 273 hectares, a total of 396 hectares. It was Mr Nicholson's view that Sue's was 56% damaged as to lucerne and Back paddock was 80%. So in effect for the purpose of assessing Mr Bentley's lucerne loss as a result of aerial spraying we are looking at 56% of 123 hectares which is 69 hectares. Using Mr Bentley's calculations that results in a loss of $9,880 (69 x 6 ÷ 11 x 4 x 65) and that loss is based on the presumption that given the climatic conditions, each hectare would have supported a 6 DSE, a fact which is disputed by the defence but about which there does not appear to be a great deal of evidence particularly as to rainfall in the period of 65 weeks. RESOLUTION 184There are other claims for damages which either haven't been pleaded, are no longer pressed or about which there is either no evidence or the circumstances do not merit them being awarded such as the claim for events in 2003, exemplary and punitive damages. 185There will be a verdict for the plaintiff against each defendant in the amount to be calculated having regard to my findings in paragraphs 158 and 183 above. (This figure would be something less than $50,000.00.) 186As to the third party proceedings, it would seem that each should be dismissed. 187The parties are to bring in short minutes of order reflecting the verdict. 188If the question of costs cannot be resolved between the parties then I reserve the issue of costs. 189I grant liberty to apply as to any unresolved issue, provided an application is made in that regard within 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2012