Both labels gave instructions as to first aid should poisoning occur and provided emergency numbers.
14 It seems that Rendell Nominees Pty Limited had been requested by its banker to spray the land so as to eradicate the weeds thereon and to enhance the capital value of the property.
15 The south west corner of "Billabong" and the north east corner of the Rendell property adjoined, being separated only by a roadway. Vineyard 1 on "Billabong" went down to that corner. The distance between the nearest portion of the sprayed paddock on the Rendell land and the nearest portion of "Billabong" was about 300 metres. The distance to the farthest part of vineyard 2 was well over one kilometre. The sprayed paddock was 600 acres or 240 hectares in size, running in an east-west direction.
16 Records of the first defendant and of the pilot, John Herschfelder, show that Mr Herschfelder had been an agricultural pilot for thirty-three years and was engaged by Fieldair (Deniliquin) Pty Limited to spray the 600 acre paddock which was infested with thistles. Mr Herschfelder sprayed on 12 November 1989 using a Piper Pawnee Brave aeroplane fitted with Micronair nozzles, the blades of which were set at an angle of thirty-five degrees. Mr Herschfelder commenced spraying at 16.50 pm at a time when the wind direction was 150 degrees, with a light wind blowing at about two knots or 3.6 kilometres per hour. The temperature was twenty-five degrees Celsius. The plane flew at a height of approximately six to eight feet above the ground. To check the wind direction, Mr Herschfelder arranged for Mr Rendell to light fires in some old tyres. These were set near the north-east boundary of the paddock. Probably, Mr Herschfelder flew in an east-west line along the length of the paddock. After the second load, Mr Herschfelder found that the wind had swung to due south. He stopped operations until the wind changed back to approximately 150 degrees. Mr Herschfelder concluded spraying at 19.50 pm. During the spraying he used 480 litres of the weedicide, that is two litres per hectare, which was within the recommended limit of up to four litres per hectare.
17 The wind was blowing from a direction of 150 degrees, that is thirty degrees to the east of due south, approximately south-south-east. The south-west corner of "Billabong" adjoined the north-east corner of the Rendell property, while the eastern boundary of the Rendell property ran northerly on a line with much of the western boundary of "Billabong". The general run of "Billabong", from its south-west corner to its north-east corner, was about twenty-five degrees to the east of the northerly line.
18 There must have been a wind shift after the spraying concluded, as had occurred earlier during the spraying, for at about 10 pm that evening the plaintiffs noticed the strong and distinctive odour of the chemical, and this continued at least until they retired to bed at about 11 pm. They had to shut the windows of their residence in order to exclude the smell.
19 On the following day, Monday 13 November 1989, the plaintiffs noticed that their vines had been affected particularly those vines closest to the Rendell property. Over the ensuing days and weeks the harm to the property became more and more apparent. The vines on Vineyard 1 were badly affected although the damage was a little patchy. The Cabernet vines appeared to suffer a little less than the others. The newly planted vines on Vineyard 2 died. Roses and other plants in the Bonic's garden suffered from the spray and a number of fruit and nut trees were badly affected. Some persimmon trees died. Many of the walnut trees, particularly those nearest the Rendell land, became stunted and failed to grow and produce nuts as previously they had done.
20 The land at "Billabong" was inspected by Mr Rendell and by persons acting in his interests and those of Fieldair (Deniliquin) Pty Limited and also by officers from the Department of Agriculture NSW. The plaintiffs engaged an expert, Mr D.N.M. Hutchins, who was an agricultural consultant trading as Hutchins Agronomic Services and who had had experience with this type of problem. Mr Hutchins inspected "Billabong" on 22 December 1989 after having first inspected a neighbouring property "Canarney Farms" to the west of Billabong Creek, which also had suffered damage to its sugar beet, roses, fruit and nut trees and other plants as a result of the aerial spraying on the Rendell property.
21 Mr Hutchins found that the grapevines on "Billabong" were suffering from epinasty, leaf distortion with the leaves having a hard, leathery appearance, chlorosis of new growth, fan shaped leaves and prominent veins on new growth, twisting and distortion of new growth, some shoot necrosis, grape bunches twisted, bunch and berry necrosis and loss of yield. The damage was not completely uniform over the whole area with the Cabernet Sauvignon vines being not as badly affected as the white varieties, although individual Cabernet vines were badly affected. The Rhine Reisling and Semillon vines were more affected than the Trebiano. By the time of the inspection, the plants in Vineyard 2 were dead. Indeed, in 1990, Vineyard 2 was ploughed up and a rice crop was planted; although so late in the season that it was unsuccessful. The damage seen by Mr Hutchins was typical of exposure to a 2, 4-D weedicide, that weedicide being deadly to grapevines. What grapes were produced in the season could not be sold.
22 The evidence establishes clearly that spray drift from the spray applied to the Rendell property caused the damage to the vineyards and to trees and plants on "Billabong".
23 All the defendants would have been aware that aerial spraying of the weedicide 2, 4-D was likely to cause harm to any occupier of a property in the proximity which had susceptible vines, trees and plants on it, if adequate care to avoid harm was not taken. The labels alone made that plain. It cannot be in doubt that it was known to the four defendants that the weedicide was a dangerous chemical and that care in its use must be taken to avoid harm.
24 In Burnie Port Authority v General Jones Pty Limited, the majority made the point that, where activities were carried out which involved the handling or storing of dangerous goods, the duty to take care would not necessarily be discharged by the employment of a competent independent contractor and that each person had a duty to ensure that reasonable care was taken. At 550, the majority said:
" It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and 'more stringent' kind, namely a 'duty to ensure that reasonable care is taken': see Kondis v State Transport Authority (1984) 154 CLR 672 at 686. Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken.
...
Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person: The Commonwealth v Introvigne (1982) 150 CLR 258 at 271, per Mason J. "
25 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.
26 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.
27 The 2, 4-D weedicides were deadly to grapevines. The Rhone Poulenc label stated that spray drift can travel great distances. Mr Hutchins gave evidence that he knew of two instances where, in calm conditions, spray drift had caused harm fifteen and twenty-five kilometres away from the sprayed property. The spraying of land only three hundred metres away from the nearest vines on "Billabong" was an inherently dangerous activity which was likely to cause harm unless extreme caution was taken.
28 Amongst his other fields of expertise, Mr Hutchins has expertise with respect to aerial spraying, for he has had control of such spraying and had studied means of minimising spray drift. Mr Hutchins gave evidence which I accept that aerial spraying is particularly dangerous when there is only a very light wind or no wind. Mr Hutchins said that, unless there is a wind, which should be blowing away from any vulnerable properties, the spray tended to remain in the air in the form of droplets or mixed with dust and that spraying should not be carried out unless there was a wind of five kilometres per hour or more but less than fifteen to twenty kilometres per hour. He said that a wind of ten kilometres per hour was ideal for such a wind tended to drive the spray down into the crop which was being sprayed. Mr Hutchins explained that there was also more risk when the weather was relatively warm, as it was on the evening of 12 November 1989 when the temperature was twenty-five degrees Celsius, for in warm conditions the spray tended to remain in the air and even to undergo a process of volatisation, to become a gaseous mixture. Another significant factor is the size of the drops which form the spray. When the small Micronair nozzles are used and set so as to create a fine spray, which was the position with the setting at 35 degrees, the spray may hang in the air and even vaporise. In such circumstances, the spray is particularly susceptible to drift. Mr Hutchins explained that spraying is safest when heavier drops are used and when there is a firm wind blowing away from any susceptible crops.
29 Mr Hutchins explained that the quantity of spray used is a relevant factor, for the greater the quantity the greater may be the spray drift. Mr Hutchins said that 480 litres sprayed over the Rendell property was a substantial quantity, for only a small mount of the 2, 4-D Amine would cause severe damage to the Bonics' vineyards.
30 Mr Hutchins expressed the view which I accept that it was not safe to aerial spray the Rendell land when the plaintiffs' vineyard were in such close proximity. He also expressed the view which I accept that, if such spraying were to be done, which was unwise, it should only have been done when there was a wind of over five kilometres per hour blowing away from "Billabong", which would have been the case had the wind been blowing from the north or north-east rather than from the south-south-east. Mr Hutchins said that the use of a fine spray in warmish weather contributed to the spray drift.
31 The following two paragraphs appear in the Mr Herschfelder's statement which was read as part of the plaintiffs' case:
" 10. From my knowledge and experience as an agricultural pilot I am fully aware of ideal spraying conditions. It is important for there to be a slight breeze which there was while I was applying the spray. In my opinion the spraying conditions were ideal.
11. Further in my opinion from the wind speed and direction during the spraying operation, the alleged damage to the Plaintiff's crop did not occur from the aerial spraying performed by myself. "