Bolam v Friern Hospital Management Committee

REASONS FOR JUDGMENT HIS HONOUR: Costa Vraca Pty Ltd (Costa Vraca), the applicant, is in the business of growing tomatoes. In January 1995 it planted a crop of arcadia tomatoes in a thirty six acre paddock at "Glenmoidart", a farming property in the Riverina. Berrigan Weed & Pest Control Pty Ltd (Berrigan), the first respondent, is an agricultural spraying contractor. Costa Vraca retained Berrigan to spray the tomato crop with insecticides, fungicides and a nutrient. In January and February 1995 that spraying took place. By mid February 1995 the crop of tomatoes had badly wilted, the leaves on the plants had twisted and the fruit was dying. The crop was abandoned in March 1995. In this proceeding Costa Vraca alleges that the spraying caused the damage to the crop and it seeks to recover from Berrigan and its director, Mr G Kocks, the second respondent, the loss and damage it has suffered. Mr Kocks has appeared to contest the claim against him but the claim against the company is undefended. It is necessary to recount the events that occurred prior to the destruction of the crop to appreciate the nature of the claims made against Berrigan and Mr Kocks. Many of the facts are now not in controversy although they were until shortly before the trial commenced. Costa Vraca is owned and controlled by two families, Mr Guiseppe Vraca and his wife Mary, and Guiseppe's brother, Corrado and his wife. Both families live in the Goulburn Valley. Guiseppe Vraca and his brother Corrado have been growing tomatoes for over 30 years and 20 years respectively. In the mid 1980's the two brothers decided to establish Costa Vraca. Since that time Costa Vraca's operations have expanded to the point where it now produces over 430,000 boxes of market quality tomatoes and more than 3,000 tonnes of processing quality tomatoes in a season. Since the 1993-1994 season Costa Vraca has grown tomatoes at Glenmoidart. The property has three paddocks and Costa Vraca has taken a lease of two of them, namely paddock 2 and paddock 3. This action is concerned with paddock 3. Carmello Vraca, the son of Guiseppe and Mary Vraca, and his cousin Joseph Vraca, each an employee of Costa Vraca, were responsible for preparing the land at Glenmoidart for planting and for maintaining the progress of the crop planted on that land. Under the supervision of Carmello and Joseph Vraca paddock 2 was prepared for planting in the first half of 1994 and paddock 3 was prepared for planting in the second half of that year. The work involved included levelling the land, ploughing the land, laying an irrigation system and the like. Tomato seedlings were planted in paddock 2 in September 1994 and planting took place in paddock 3 in January 1995. The crop was planted late in paddock 3 so that it would mature in April 1995 at the very end of the tomato season. It was anticipated that the crop would then fetch a higher price because the supply of tomatoes would be low. To obtain a successful crop of tomatoes the crop must be sprayed for insects, weeds and diseases. A variety of chemicals are used for these purposes. In its operations in the Goulburn Valley the contractor employed by Costa Vraca to carry out spraying is Burke & Quinn. However Glenmoidart is too great a distance for Burke & Quinn to travel and so Costa Vraca decided to engage the services of a local spraying contractor. A former employee of Costa Vraca recommended that the company retain Berrigan to spray its crop at Glenmoidart. Berrigan owns a four wheel drive vehicle on which is mounted a spraying rig consisting of a 3000 litre stainless steel tank with a 19 metre wide folding spray boom on each side. Rubber hoses deliver the spray material (water mixed with the required chemicals) from the tank to the spray booms where there are outlets from which the liquid is discharged. Joseph Vraca arranged to meet Mr Kocks at Glenmoidart in October 1994. What was said during their conversation is important and is not seriously in dispute. During the course of their discussion about the work to be undertaken by Berrigan, Joseph Vraca asked Mr Kocks whether he used the spraying rig to spray "Round-up". Round-up is a herbicide that is particularly harmful if sprayed on tomatoes and can destroy a tomato crop. Joseph Vraca did not explain why he had asked this question but the reason must have been obvious to Mr Kocks as is apparent from his reply. Mr Kocks said that the spraying rig was used to spray Round-up. He went on to say that there was no need for this to be of concern because he, Mr Kocks, regularly and properly cleaned the spraying rig. Mr Kocks also said that he was aware that tomatoes were susceptible to damage from certain sprays (including, no doubt, Round-up) but he had been spraying crops for 20 years, the inference being that during that time he had not caused any damage by spraying. Reassured by this conversation Joseph Vraca retained Berrigan to spray the crop in paddocks 2 and the crop to be planted in paddock 3. The agreement was that Berrigan would spray the crops as and when requested by Costa Vraca with chemicals supplied by Costa Vraca and that Berrigan would be paid a fee of $4 for each acre sprayed. In the summer of 1994-1995 there was an unusually high rainfall in the Riverina. This resulted in the growth of broad leaf weeds known to farmers as Bathurst burr and Patterson's curse. Hormonal herbicides that contain the chemical 2,4-D ester are used to eradicate these weeds. A number of property owners retained Berrigan to spray the broad leaf weeds growing on their properties. Some of them requested Berrigan to use a herbicide that contained 2, 4-D ester. Tomatoes are highly susceptible to injury from 2,4-D ester. Many of the expert witnesses called by Costa Vraca, including Mr S Gurban an agricultural scientist from the Department of Agriculture (Vic), Mr P Stoneman a pesticide inspector with the New South Wales Environment Authority and Dr P Shea an expert in plant genetics gave evidence to this effect. Mr Gurban and Dr Shea also gave evidence that the harmful effects of 2,4-D ester, especially on tomatoes, have been known for many years. I have previously mentioned that paddock 3 was planted in January 1995. The paddock was planted in rows running north to south with twelve rows to a bay save for the westernmost bay which was planted with fifteen rows. Mr Kocks was requested by Carmelo Vraca to spray the crop with a variety of chemicals on 17, 25 and 29 January and 6 and 13 February 1995. In that period the crop was growing well and was apparently healthy. However, in mid February 1995 Mr Kevin (Beau) Wallace, the owner of Glenmoidart, who was managing the property on behalf of Costa Vraca, noticed that for some unknown reason parts of the crop had wilted and appeared dull. He immediately telephoned Carmello Vraca and informed him of his observations. It was agreed that the crop should be sprayed with Response (a seaweed based nutrient) and Berrigan carried out that spraying on 21 February 1995. Mr Wallace continued to monitor the crop each day thereafter. For a few days it appeared to him that the crop was recovering. However one morning, possibly the morning of 24 February 1995, Mr Wallace noticed that substantially all of the tomato plants had wilted, that the leaves on the plants were twisted and that many of the plants were dying. According to Mr Wallace the rows of plants on the western side of the paddock were the most affected and the three middle rows were the least affected. No one within Costa Vraca knew what was causing the failure of the crop. A number of experts were called to inspect the crop. One of them was Mr R Fox, an agricultural scientist employed by I. K.Caldwell a supplier of rural chemicals. Mr Fox formed the view that the crop may have been affected by 2,4-D ester. On 27 February 1995 he took samples of the crop and sent them to the State Chemistry Laboratory (Vic) for analysis with the request that samples be examined for 2,4-D ester contamination. His suspicions were confirmed when the analysis undertaken by the laboratory found a concentration of 2,4-D ester in the samples submitted by Mr Fox. Costa Vraca convened a meeting at paddock 3 that was held on 8 March 1995. The purpose of the meeting was to discuss what was the cause of the failure of the crop. Those in attendance included Mr Fox, Mr Ray Holland an agricultural scientist from the Department of Agriculture (Vic), Mr Gurban and Mr Kocks. During the meeting Mr Fox asked Mr Kocks whether he had used his spraying rig to spray 2,4-D ester. Mr Kocks informed him that he had. Mr Fox then asked Mr Kocks whether he had decontaminated the spraying rig after he had used it to spray 2,4-D ester. According to Mr Fox Mr Kocks told him that the tank had been flushed out with water but that Mr Kocks did not say that he cleaned out the hoses as well. On the other hand Mr Holland recalls that Mr Kocks said that he did flush out the spray boom lines. The uncontested evidence is that Mr Kocks had in fact used his spraying rig to spray 2,4-D ester on at least 17 occasions between 29 January and 23 February 1995. He also used the spraying rig to spray another hormonal herbicide known as MCPA which, like 2,4-D ester, is also harmful to crops such as tomatoes even at very low concentrations. Mr Kocks sprayed 2,4-D ester that had been supplied by Nufarm Ltd. The product is supplied in a container that has printed on it or attached to it directions concerning its use. The directions include the following instructions: "EQUIPMENT MAINTENANCE AND USAGE: keep the spray unit for herbicides only if possible. Otherwise wash out the unit with kerosene then with hot soapy water followed by several clear water rinses. Do not use wooden spray vats as they cannot be cleaned. Hoses cannot be cleaned and new hoses should be fitted when the unit is to be used for any other purpose ...". According to the evidence other manufacturers of herbicides that contain 2,4-D ester provide similar instructions with their products. It is unlikely that Mr Kocks read the instructions that were supplied by Nufarm. However, Mr Kocks admitted that he had always been aware that 2,4-D ester would cause damage to certain crops such as tomatoes. He knew that he had to clean his spraying rig to avoid the possibility of contamination. He did not know what was the correct method of cleaning the rig. Nor did he know that the hoses on the rig could not be cleaned effectively and that it was recommended that different hoses be used when spraying other products. There is a good deal of inconsistency in the accounts given by Mr Kocks about the method he employed to clean the spraying rig. First there is the account he gave to Mr Fox and Mr Holland on 8 March 1995 when he said that he cleaned the spraying rig with water. In an affidavit that was filed to be his evidence in chief Mr Kocks deposed to having cleaned the spraying rig with a high pressure hose using caustic soda to assist in the cleaning process. He said that he used this method of cleaning on 13 February 1995 immediately after he had used the rig to spray 2,4-D ester but before he sprayed the tomato crop later the same day. In that affidavit Mr Kocks did not suggest that this method was the usual practice he employed to clean the rig although this was asserted to be so in a later affidavit sworn by him. I think that it is most unlikely that Mr Kocks adopted this method of cleaning the spraying rig on each occasion that he used 2,4-D ester or a similar chemical. If that had been his usual practice I am sure that Mr Kocks could have said so to Mr Fox or Mr Holland on 8 March 1995 when it was apparent that each of them was accusing Mr Kocks of having caused the damage to the tomato crop. Moreover, it became clear during the course of his cross-examination that Mr Kocks did not clean the spraying rig on each occasion after it had been used to spray 2,4-D ester or some other hormonal herbicide. Indeed at one stage during his evidence Mr Kocks conceded that he would only clean the spraying rig before it was used to spray a sensitive crop. I am prepared to accept that Mr Kocks did make some effort to clean his rig reasonably regularly but that he did not do so as rigorously as he maintained he did. The failure properly to clean the spraying rig on each occasion after it had been used to spray a hormonal herbicide made its effective cleaning almost impossible. The evidence of Mr E Wallace, an agricultural scientist who has made a study of hormonal herbicides, was to the effect that a chemical such as 2,4-D ester will build up in layers on the surface of spraying equipment and if the equipment includes rubber hoses, as it did in this case, the chemical will penetrate the rubber to resurface when another fluid is passed through it. According to Mr Wallace regardless of the rigour that attended the process of decontamination it is inevitable that in time the use of 2,4-D ester will cause contamination. Most of the experts called by Costa Vraca expressed the view that the tomato crop had been damaged as a result of being sprayed with a liquid that had been contaminated by a hormonal herbicide most likely 2,4-D ester. For example, Mr Shea, Mr Gurban, Mr Stoneman and Mr Wallace expressed that opinion. Their view was based on the nature of the damage that was suffered by the crop. There was no rebutting evidence called by Mr Kocks. In the light of the evidence mentioned so far I make the following findings: (a) that the tomato crop was destroyed as a result of it being sprayed with chemicals that were contaminated by 2,4-D ester; (b) the contaminated spraying occurred on a number of occasions, but most likely in early to mid February; (c) the reason there was contamination by 2,4-D ester was that Mr Kocks did not properly clean the spraying rig either in accordance with the instructions of the manufacturer of 2,4-D ester or at all. Mr P H Miller, a horticultural consultant, was called to give evidence to quantify the loss suffered by Costa Vraca as a result of the destruction of the tomato crop. Mr Miller has experience in assessing loss and damage as a result of crop failures. His evidence was to the following effect. The crop in paddock 3 would have produced 40 tonnes of tomatoes per acre. That produce could have been sold as market quality tomatoes and for processing. Mr Guiseppe Vraca estimated that one half of the crop would have produced market quality tomatoes and one half would have been sold for processing. Mr Miller said that this was a reasonable estimate. Based on average prices that prevailed at the time the gross revenue from the sale of tomatoes for processing was likely to be $59,760 and the gross revenue from the sale of market quality tomatoes would have been $1,044,000. Mr Miller then estimated the cost of production to be $98,341 and the cost of harvesting, packing and transporting to be $303,280. Thus Mr Miller assessed the net loss sustained by reason of the loss of the tomato crop to be $701,785. When Mr Miller first gave his evidence I was of the view that he had exaggerated the quantum of the claim. However, Mr Miller's evidence was not seriously challenged by counsel for Mr Kocks and Mr Miller satisfactorily explained the basis of his calculations in answers to a number of questions that I put to him. In the absence of an appearance on behalf of Berrigan I thought it appropriate to test Mr Miller's evidence in a way that I would not have undertaken had Berrigan been represented. In the result I am satisfied that the loss suffered by Costa Vraca is reasonably assessed to be in the sum of $701,785. I should mentioned that there was evidence given by Guiseppe Vraca and Carmello Vraca that the loss suffered by Costa Vraca was even greater than this amount but I prefer to rely on Mr Miller. I can now turn to the causes of action relied upon by Costa Vraca to recover from Berrigan and Mr Kocks the loss that it has suffered. It will be convenient if I deal with the claim against Berrigan before considering the claim against Mr Kocks. Costa Vraca pleads three causes of action against Berrigan but at this stage it is necessary to mention only two of them, namely breach of contract and the common law tort of negligence. Costa Vraca alleges that it entered into a contract with Berrigan to spray the tomato crop. It also alleges that the contract included the following implied terms: (a) that Berrigan would use reasonable skill and care in spraying the crop. (b) that Berrigan would use reasonable skill and care to ensure that its spraying tank and/or equipment were not contaminated with any other chemical which may damage or destroy the crop; and (c) that the chemicals requested by Costa Vraca to be sprayed on the crop would not be contaminated with any other chemical. It was not seriously in dispute that Costa Vraca had engaged Berrigan to spray the tomato crop. There was a dispute whether that contract was made in October 1994 during the discussion between Joseph Vraca and Mr Kocks or whether there were a series of contracts each one effected on each occasion that Berrigan was requested to spray the crop. I have not taken the trouble to set out the evidence from which it might be determined whether there was one engagement or a series of engagements for it will not affect the outcome of this case. Whether there was one contract or a number of them it is clear that there is to be implied in that contract or those contracts a term that Berrigan would carry out its services with the reasonable care and skill to be expected from a person providing the services that Berrigan provided: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586; Chin Keow v Government of Malaysia [1967] 1 WLR 813. Such an obligation would require Berrigan to take reasonable precautions to ensure that its spraying rig was not contaminated with any chemical that might damage or destroy Costa Vraca's tomato crop. I have no doubt whatever that Berrigan was in breach of this implied term. Berrigan did not take adequate steps to ensure that its spraying rig was free from contaminants. If it had followed the method of cleaning recommended by the manufacturers of 2,4-D ester it might have satisfied its contractual obligations but it is apparent that it did not follow those instructions. The excuse proffered by Mr Kocks for not doing so is not a satisfactory one. Mr Kocks said that he had been spraying crops for over twenty years and had not previously encountered any difficulty with the contamination of chemicals. One possible explanation for this, and the one that is most likely in the circumstances, is that Berrigan rarely sprayed crops that were sensitive to 2,4-D ester or similar hormonal herbicides. Another possible explanation is that owing to the high rainfalls over the summer of 1994-1995 Berrigan used hormonal herbicides on a more intensive basis than it had in the past. Another view is that it was more a matter of good luck than proper practices that Berrigan had not experienced a similar problem in the past. Be that as it may, the fact is that the failure to follow the manufacturer's instructions means that Berrigan failed to use reasonable skill and care in the manner in which it went about spraying the crop. Accordingly, Costa Vraca is entitled to recover from Berrigan the loss that it has suffered together with interest and costs. Costa Vraca also sues Berrigan in negligence. This raises the question whether parties whose relationship is governed by a contract can be concurrently liable in tort. The trend of modern authority is that concurrent liability does subsist at least in the case of certain relationships: see e.g. Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979] Ch 384, Esso Petroleum Co Ltd v Mardon [1976] QB 801, Hawkins v Clayton (1987-1988) 164 CLR 539. It is not necessary in this case to enquire further into this question for the reason that Costa Vraca is entitled to succeed in its action for breach of contract and it would be preferable to determine the issue of concurrent liability in a case where the point has been fully argued. I can now turn to the claim against Mr Kocks. There is but one cause of action pleaded against him. It is alleged that Berrigan engaged in conduct that was misleading and deceptive in contravention of s 52(1) of the Trade Practices Act 1974 (Cth) and that Mr Kocks was involved in that contravention within the meaning of s 75B(1) of the Act. If each of those allegations can be made out an action in damages would lie against Mr Kocks under s 82(1) of the Act. Section 52(1) of the Trade Practices Act provides: "A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." In Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1987 -88) 79 ALR 83 at 93 Lockhart J said: "Misleading or deceptive conduct generally consists of misrepresentations, whether express or by silence; but it is erroneous to approach s 52 on the assumption that its application is confined exclusively to circumstances which constitute some form of representation. The section is expressed briefly, indeed tersely, in plain and simple words ...There is no need or warrant to search for other words to replace those used in the section itself. Dictionaries, ones own knowledge of the developing English language and ordinary experience are useful touchstones, but ultimately in each case it is necessary to examine the conduct, whether representational in character or not, and ask the question whether the impugned conduct of its nature constitutes misleading or deceptive conduct." Generally speaking the intention of the alleged wrongdoer is not relevant in determining whether there has been a contravention of s 52(1). Thus in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1981-82) 149 CLR 191 at 197 Gibbs CJ said: "There is nothing in the section that would confine it to conduct which was engaged in as a result of a failure to take reasonable care. A corporation which has acted honestly and reasonably may therefore nevertheless be rendered liable to be restrained by injunction, and to pay damages, if its conduct has in fact misled or deceived or is likely to mislead or deceive. The liability imposed by s 52, in conjunctions with ss 80 and 82, is thus quite unrelated to fault and it need not involve any infringement of a right to a trade name, trade mark, copyright or design." In this case Costa Vraca does not allege that Berrigan engaged in misleading or deceptive conduct by reason of having made a representation which resulted in Costa Vraca being misled in some way. The conduct that is said to be misleading or deceptive is the failure by Berrigan to inform Costa Vraca that it had used its spraying rig to spray 2,4-D ester on occasions prior to spraying Costa Vraca's crop. It is clear that a failure to provide information can be conduct which is misleading or deceptive. For the purposes of s 52(1) "engaging in conduct" is defined in s 4(2)(a) as a reference to doing or refusing to do any act and by s 4(2)(c) a reference to refusing to do an act includes a reference to refraining (otherwise than inadvertently) from doing that act. However, when the complaint is that s 52(1) has been infringed by conduct that involves either refusing or refraining from doing an act before that conduct is actionable it must have been deliberately engaged in. Bowen CJ in Rhone-Poulenc Agrochimie SA v Uim Chemical Services Pty Ltd (1986) 68 ALR 77 at 84 said this followed from the use of the words "refuse" and "refrain" in s 4(2). This conclusion is reinforced by the fact that by s 4(2)(c) conduct includes the refraining from doing an act provided it is "otherwise than inadvertently": see also Edgar & Ors v Farrow Mortgage Services Pty Ltd (in liq) [1992] ATPR 46-096 at 53375; Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1996] ATPR 46-159 at 53362; Demagogue Pty Ltd v Ramensky [1992] 39 FCR 31 at 42; Diversified Mineral Resources NL v CRA Exploration Pty Ltd [1995] ATPR 41-381 at 4284. Accordingly, to determine whether Berrigan has contravened s 52(1), which must be established before it can be said that Mr Kocks has been involved in a contravention of the Act, two questions arise for consideration. The first is whether the failure by Berrigan to inform Costa Vraca that it had used 2,4-D ester in its spraying rig was misleading or deceptive conduct. The second question is whether that conduct was deliberate. Generally in commercial dealings between parties the law does not impose any obligation upon one party to inform the other party of matters that might be important for the other party to know before that party enters into some agreement or embarks upon some transaction with the first party. Of course there are exceptions. There can be no fraudulent concealment of facts. Further, some relationships require facts to be disclosed. For example, an insured must inform his insurer of matters relevant to the risk to be undertaken by the insurer, a trustee must keep his beneficiaries informed about the affairs of the trust and a company must disclose certain facts in a prospectus when it is seeking to raise capital and so on. Section 52(1) has brought about an important change to this common law position. In Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 88 Samuels JA said that now: "silence is not misleading only when there is a duty to disclose at common law or in equity. It may simply be the element in all the circumstances of the case which renders the conduct misleading or deceptive." See also Demagogue 39 FCR 31 at 40-41, Rhone-Poulenc 12 FCR 77 at 85. One circumstance where the failure to provide information will constitute misleading or deceptive conduct is where the circumstances of the case give rise to a reasonable expectation that if a relevant fact exists it will be disclosed: Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR 46-054 at 53195. In Demagogue, supra, at 41 Gummow J put the matter this way: "But, consistently with regard to the natural meaning of the terms of s 52, the question is whether in the light of all relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive." Counsel for Costa Vraca argues that the failure to disclose the prior use of 2,4-D ester was misleading or deceptive conduct for the following reasons. Berrigan knew that even in low concentrations 2,4-D ester was harmful to tomatoes. Berrigan knew how difficult it was to decontaminate its spraying rig and it also knew that the manufacturer's instructions for the use of 2,4-D ester were not being complied with. Berrigan was aware of Costa Vraca's concern about the use of harmful chemicals because Joseph Vraca had enquired of Mr Kocks about such use in October 1994. Thus it was reasonable for Costa Vraca to assume that it would be informed of the use of any other chemicals that could be harmful to tomatoes and the failure to provide that information was misleading in the circumstances. I think there is much force in this argument. Once Costa Vraca had notified Berrigan that it had concerns about the use of harmful chemicals, that is chemicals that might be harmful to its tomato crop, it became incumbent upon Berrigan to disclose all of the chemicals that were used in its spraying rig so that Costa Vraca could decide whether or not to engage the services of Berrigan to spray its tomato crop or whether to continue that engagement. By failing to inform Costa Vraca that the spraying rig had been used to spray 2,4-D ester, Berrigan misled Costa Vraca leading it to form the erroneous view that it was safe to use the spraying rig. But the critical question in this case is whether the failure to disclose the prior use of 2,4-D ester was deliberate Or, putting the matter another way, did Mr Kocks intentionally withhold information from Costa Vraca which he knew should have been disclosed to it? On this question I have come to the firm view that Mr Kocks did not deliberately withhold information from Costa Vraca. Mr Kocks said that it did not enter his mind that he should make mention of the fact that the spraying rig had been used to spray 2,4-D ester. The reason he gave was that he had never before experienced any problems with contamination and he had been in the business of spraying crops for many years. Even when he saw the damage to the tomato crop in mid February 1995 Mr Kocks said that it did not occur to him that the damage had been caused by his spraying of a contaminated product. Having observed Mr Kocks give his evidence I am satisfied that he did not turn his mind to the issue whether he should have disclosed the use of 2,4-D ester either at the time of his conversation with Joseph Vraca or at any time before the crop was damaged. I do not mean to suggest that I accept all of the evidence given by Mr Kocks. For example, I have already dealt with Mr Kocks' account of the procedures he adopted for cleaning the spraying rig. It is clear that Mr Kocks exaggerated the effort involved. He did so because he believed it would serve his cause in the litigation. It was also submitted that Mr Kocks gave untruthful evidence about the manner in which he carried out the spraying of paddock 3. According to Costa Vraca Mr Kocks sprayed the paddock moving from west to east because it was on the western side of the paddock where the crop suffered its greatest damage. According to Mr Kocks he sprayed paddock 3 moving from east to west. It was put to Mr Kocks that his reason for giving that evidence was because the crop on the eastern side of the paddock was least affected by whatever caused the damage to the crop and if he had commenced to spray on the eastern side that side would have been most severely affected if the damage was caused by contamination It is not necessary for me to resolve whether Mr Kocks' evidence about the manner in which he sprayed the paddock should be accepted. I do note that the gate that provides access to paddock 3 is located in the north west corner of the paddock so that it is likely that spraying commenced on the western rather than the eastern side of the paddock. But even if I was of the view that Mr Kocks' evidence should be rejected it would not alter my opinion that Mr Kocks was being truthful when he said that it just did not occur to him that he should disclose to Costa Vraca that the spraying rig had been used to spray 2,4-D ester. There was also an attack made on Mr Kocks' credit for failing to discover the records that demonstrated that Berrigan had used 2,4-D ester in its spraying operations. Initially it was claimed that those records had been lost or destroyed in a flood although they were subsequently located. It is by no means clear that Mr Kocks did deliberately conceal the company's records. But even if he did I would reach the same conclusion on the critical question. The result is that the claim against Mr Kocks will be dismissed and I will hear the parties on costs. In relation to the claim against Berrigan it will be necessary for Costa Vraca to quantify the interest that it is entitled to receive so that it can be recorded in the Order of the Court.