GEJ & MA Geldard Pty Ltd v Mobbs & Ors

[1]

[1] The first defendants (the Mobbs) are the owners of the cattle property "Sherwood". The second defendant (Simon Drury) was employed as the manager of that property.

[2]

[2] The third defendant (MDH Pty Ltd) is the owner of the cattle property "Wallumba". The fourth and fifth defendants (McDonald and Maher) were employed as managers and operators of that property.

[3]

[3] The seventh defendant (Ross York) has a business supplying agricultural products and supplied chemicals to those landowners to control wattle regrowth on their cattle properties.

[4]

[4] Those chemicals were used by the sixth defendant, Meandarra Aerial Spraying Pty Ltd, (Meandarra) in an aerial spraying operation which took over five hours and involved two fixed wing aircraft.

[5]

[5] The eighth defendant, Lachlan Hill, who is a director of Meandarra, was one of the pilots who flew on the day. The other pilot, Michael Baker, is not a party to these proceedings.

[6]

[6] The plaintiff carries on a business of cotton production in the Condamine area of south-east Queensland.

[7]

[7] In March 2007 the plaintiff instituted proceedings against the eight defendants alleging negligence in relation to the carrying out of the aerial spraying of various chemicals to control plant regrowth on "Sherwood" and "Wallumba" on 15 December 2005. The plaintiff alleged that the negligence of all the defendants had resulted in economic loss due to the damage to its cotton crop and the consequent drop in yield.

[8]

[8] The plaintiff's action against all the defendants except for the sixth and eighth defendants was compromised prior to trial and the action in negligence continued as against the sixth and eighth defendants only. That trial was held in late 2009 and early 2010 with final written submissions provided on 19 March 2010.

[9]

[9] On 23 June 2010 I published my reasons in relation to the plaintiff's claim for negligence against the sixth and eighth defendants.

[10]

[10] I was satisfied that the sixth and eighth defendants had breached the duty of care that they owed to the plaintiff when they carried out extensive aerial spraying of various herbicides in "off label" concentrations to control wattle regrowth on the cattle properties "Sherwood" and "Wallumba" on 15 December 2005.

[11]

[11] In those reasons published on 23 June 2010, I indicated that the herbicides had been sprayed from the two aircraft over an extensive period on a day of high temperatures, gusty winds and low humidity. I was satisfied that the herbicides had been sprayed in inappropriate conditions and were not mixed to the correct ratios and rates.

[12]

[12] I was satisfied that it was more probable than not that the spraying caused the loss to the plaintiff's cotton crops which I assessed at $467,187.45.

[13]

[13] I indicated during the trial and in my reasons that I would hear further submissions in relation to the issues of -

[14]

(i) the apportionment of liability under the Civil Liability Act 2003 (Qld) in relation to the other six defendants with whom settlement had been effected;

[15]

(ii) the effect of the plaintiff's pre trial settlement with the other defendants; and

[16]

(iii) the degree of responsibility which is to be shared between the sixth and eighth defendants.

[17]

[14] The matter was listed for a further hearing in relation to those issues on 27 August 2010. After that hearing I requested further submissions in relation to liability of the seventh defendant, as well as submissions on the question of who bore the onus in relation to the limitation of liability of a defendant in s 31(1)(a) of the Civil Liability Act 2003 (CLA).

[18]

[15] It is clear that the provisions of the CLA have brought about a considerable change in the law. Previously at common law persons who by their actions caused the same damage were often severally liable. Therefore previously the sixth and eighth defendants would have been liable for the entirety of the loss.

[19]

[16] The CLA however brought in a new regime in relation to the liability of defendants who are concurrent wrongdoers. Pursuant to those changes, a defendant who is a concurrent wrongdoer is only liable for and can only have judgment entered against it for "that proportion of the loss or damage claimed that the court considers just and equitable having regard to the extent of the defendant's responsibility for the loss or damage."

[20]

[17] As this regime is relatively new there are not a great number of decisions in this area of the law. There are however some recent decisions of the New South Wales Supreme Court which have examined provisions similar to the Queensland provisions. I will refer to these decisions in some detail as I have found them of considerable assistance. The relevant principles were discussed by Palmer J in the 2007 New South Wales Supreme Court decision of Yates v Mobile Marine Repairs Pty Ltd:[1]

[21]

"93 The object of Part IV CLA is remedial and it dramatically changes the previous law. Formerly, a plaintiff could choose to sue only one of several wrongdoers who caused the same loss and the Court could enter judgment for the whole of that loss against that defendant. Even if the defendant cross claimed in the proceedings for indemnity or contribution against the other wrongdoers, the plaintiff could enforce a judgment against the defendant alone for the whole of the loss, leaving the defendant to recover from the cross defendants, if it could. Sometimes the defendant obtained judgment against a cross defendant but could not recover the judgment because of the cross defendant's insolvency.

[22]

94 Part IV is designed to alleviate this perceived injustice. It is intended to visit on each concurrent wrongdoer only that amount of liability which the Court considers 'just', having regard to the comparative responsibilities of all wrongdoers for the plaintiff's loss. How the Court is to assess what is 'just' is not explained. The Court must exercise a large discretionary judgment founded upon the facts proved in each particular case. The principles upon which the Court will exercise this discretionary judgment will come to be developed on a case-by-case basis. However, it seems clear enough that the policy of Part IV is that a wrongdoer who is, in a real and pragmatic sense, more to blame for the loss than another wrongdoer should bear more of the liability. This calls for the exercise of the same kind of judgment as the Court exercises in apportioning responsibility as between a defendant sued in tort for negligence and a plaintiff who, by his or her own negligence, has been partly responsible for the injury.

[23]

97 ...However, the Court is required to go beyond the legal character of the duties imposed upon concurrent wrongdoers and to examine the practicalities of responsibility. Accordingly, the Court should apportion liability according to considerations such as (but not limited to):

[24]

which of the wrongdoers was more actively engaged in the activity causing loss;

[25]

which of the wrongdoers was more able effectively to prevent the loss happening.

[26]

102 In my opinion, although Mobile Marine was more actively engaged, if not solely engaged, in the physical activity which caused Mr Yates' loss, nevertheless, MAN Australia was not in a position where it was unable effectively to prevent the loss occurring. Because it had its own expertise, it could not disregard its responsibility under the contract to ensure that Mobile Marine had carried out the work properly.

[27]

103 In my opinion, the liability for Mr Yates' loss should be apportioned equally between Mobile Marine and MAN Australia. Judgment should be entered against them accordingly." (emphasis added)

[28]

[18] That decision indicates therefore that the following factors should be taken into account:

[29]

(i) The purpose of the legislation and the fundamental change in the law.

[30]

(ii) That the Court must exercise a large discretionary judgment founded upon the facts proved in each particular case.

[31]

(iii) A consideration of the actual practicalities of responsibility.

[32]

(iv) A consideration of which of the concurrent wrongdoers were more actively engaged in the activity which caused the loss.

[33]

(v) A consideration of which of the wrongdoers could have prevented the loss.

[34]

(vi) The responsibility of all the parties, particularly those who had the duty or expertise to prevent the loss.

[35]

[19] In the 2008 New South Wales Supreme Court decision of Reinhold v New South Wales Lotteries Corporation (No 2)[2] Barrett J also discussed the process to be undertaken as well as the meaning of "just and equitable" as follows:

[36]

"37 The task prescribed by s 35(1) of the Civil Liability Act must, in this case, be approached without reference to s 35(2) and s 35(3). This is because all the claims established against Lotteries and the Newsagents are 'apportionable claims', there is no allegation of contributory negligence on the part of Mr Reinhold and there is no 'concurrent wrongdoer' who is not a defendant.

[37]

38 Section 35(1) applies separately to Lotteries and to the Newsagents. Its effect is to limit the liability of Lotteries to a particular amount and to preclude the award of judgment against Lotteries for more than that amount. Its effect is also to limit the liability of the Newsagents to a particular amount and to preclude the award of judgment against the Newsagents for more than that amount. The section is, in terms, concerned to fix the amount of the liability of each wrongdoer, as distinct from splitting the whole of the entitlement of the plaintiff into parts that together equal that whole and allocating the parts to the wrongdoers. But absent contributory negligence of the plaintiff (dealt with in s 35(3)), I must say that I cannot envisage a situation in which the amounts separately determined under s 35(1) in respect of the several wrongdoers (whether or not actually parties: see s 35(4)) will not together equal the plaintiff's established entitlement. I say this because the "just" criterion on which s 35 is based, being a criterion having regard to respective degrees of 'responsibility' of the wrongdoers, would not be met if the plaintiff were not given that entitlement in full. The wrongdoers must be taken to bear, among them, full 'responsibility'. There is accordingly no room to determine in relation to any of them an amount which, when added to the amounts determined in relation to the others, does not provide the whole of the plaintiff's established entitlement.

[38]

39 The approach dictated by s 35(1) requires the court to determine in relation to each of Lotteries and the Newsagents the amount that reflects the proportion of Mr Reinhold's loss of $2,000,000 that it 'considers just having regard to the extent of the [particular] defendant's responsibility for the damage or loss'. These words have close counterparts in other legislation. Section 9(1) appearing in Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 under the heading 'Apportionment of liability in cases of contributory negligence' is in these terms:

[39]

'If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:

[40]

(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and

[41]

(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.'

[42]

40 Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 'Contribution among tort-feasors' provides in sub-section (2):

[43]

'In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.'

[44]

41 Like wording is found in analogous statutes of other States and Territories and also in the United Kingdom.

[45]

42 Many of the other statutory provisions (including those just quoted) use the word 'just and equitable', where s 35(1) uses the word 'just' alone. The phrase 'just and equitable' is widely employed in statutes: see Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 at [43] to [49]. There is a question whether 'just' alone means something different from 'just and equitable'. I doubt that it does or that any shade of difference there may be is of significance. That which is not 'equitable' is unlikely to be 'just'. In any event, a direction that the court, acting judicially, do what it considers 'just' is, in reality, a direction that it undertake an evaluation and come to a discretionary conclusion about where the justice of the case lies. Considerations of what is equitable will inevitably intrude, subject to the terms of the legislative directive.

[46]

50 Blameworthiness and causative potency are recognised in Australia as determinants of responsibility. In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494, a case involving apportionment for contributory negligence, the High Court (Gibbs CJ, Mason J, Wilson J, Brennan J and Deane J) said:

[47]

'The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] TASStRp 11; [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.'

[48]

51 This is the authoritative statement of the law in Australia. The passage I have set out has been frequently and consistently quoted and applied in both contributory negligence cases and tortfeasor contribution cases. A recent example is found in the judgment of Beazley JA in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 at [278]. Her Honour also quoted with approval the following passage from the judgment of Rolfe AJA (with whom Sheller JA and Fitzgerald JA agreed) in Vinidex Tubemakers Pty Ltd v Thiess Contractors Pty Ltd [2000] NSWCA 67 at [29]:

[49]

'[T]he court must have regard to what is just and equitable and, in doing so, it must make a comparison of the culpability and of the acts of the parties causing damage and, thus, to the relative blameworthiness and the relevant causal potency of the negligence of each party, and to the whole conduct of each negligent party in relation to the circumstances of the accident by way of comparative examination: Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492; Wynbergen v Hoyts Corporation Pty Limited [1997] HCA 52; (1977) 72 ALJR 65; Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal - 28 March 1995 - unreported) and James Hardie & Coy Pty Limited v Roberts & Anor (1999) 47 NSWLR 45.'

[50]

52 Reference may also be made to a passage in the judgment of McColl JA in Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731, a contributory negligence case, at [71]:

[51]

'Although as will become apparent it is not necessary to make a decision about apportionment in this case, I note that the statutory requirement that, if contributory negligence is found, the damages have to be 'reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage ... " requires the trial judge to "compare the culpability of the plaintiff and defendant in the sense of the 'degree of departure from the standard of care of the reasonable man'": Liftronic Pty Ltd v Unver [2001] HCA 24 ; (2001) 75 ALJR 867 at 872 [28] per McHugh J referring to Pennington v Norris [1956] HCA 26 ; (1956) 96 CLR 10 at 16. The trial judge has to have "regard ... to the 'relative importance of the acts of the parties in causing the damage'". It is '"the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination'": Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52 ; (1997) 72 ALJR 65, 149 ALR 25 at 29.'

[52]

53 There is not in the Australian case law any indication that factors beyond the relevant person's 'responsibility for the damage in question' may be taken into account in the determination of what is 'just' or 'just and equitable'; or that the benefit of profits or burden of losses is relevant to the question of such 'responsibility'. The 'having regard to' specification delimits the field of inquiry.

[53]

57 These two cases show that the financial strength or profitability of a party is not to be taken into account in assessing contribution or apportionment. Nor is it relevant to look to the situation or status of a party (for example, that it is a polity financially dependent on the exaction of revenues from its citizens). The attitude of a wrongdoer in the terms of remorse or lack of remorse is also irrelevant. The Dubai Aluminium case (above) raises an issue which, it appears, has not received direct attention in Australia, that is, whether the fact that one wrongdoer has profited from the wrongdoing and retains the profit may be taken into account. I am of the opinion that, for the reasons stated at paragraph [53] of the speech of Lord Nicholls (see paragraph [48] above), that fact, if it exists, is inevitably relevant since, as his Lordship observed, it goes to the issue of responsibility with which s 35(1)(a) of the Civil Liability Act is expressly concerned.

[54]

60 Because the legislature has seen fit to adopt in s 35(1)(a) of the Civil Liability Act a form of words concerning apportionment which is almost indistinguishable from that which has long been used in statutes concerning contributory negligence and contribution among tortfeasors, I consider it appropriate to follow approaches to the meaning of those words developed and sanctioned by appellate courts. I therefore approach the matter before me on the basis that my principal task is to make findings about

[55]

(a) the degree of departure from the standard of care of the reasonable man, as regards the causative conduct of Lotteries and the Newsagents; and

(b) the relative importance of the acts of Lotteries and the Newsagents in causing the economic loss suffered by Mr Reinhold,

[56]

making a comparative examination of the whole conduct of each of Lotteries and the Newsagents in relation to the circumstances in which the loss was sustained.

[57]

61 I also approach the matter on the basis that, if either party has profited from its own actions causative of the plaintiff's loss and the other is or will be out of pocket, that imbalance can and should be brought into account as an element of the respective degrees of responsibility."

[58]

[20] The Reinhold decision therefore added blameworthiness and causative potency as two further factors which should be taken into account when determining responsibility of the respective parties. It is also clear that Reinhold indicated that factors which should not be taken into account included the financial strength of a party, the status of a party or whether there had been any indication of remorse.

[59]

[21] The making of an apportionment of the respective shares in the responsibility for the damage therefore involves a comparison of both culpability, ie of the degree of departure from the standard of care of the reasonable man, and the relative importance of the acts in causing the economic loss suffered by the plaintiff. It is the whole conduct of each negligent party in relation to the circumstances which must be subjected to comparative examination. Furthermore the significance of the various elements involved in such an examination will vary from case to case and if a party has profited from its actions which have caused the plaintiff's loss and the other is or will be out of pocket, then that imbalance can be brought into account.

[60]

[22] As the cases indicate, a determination of what is 'just and equitable' will inevitably involve the court making an evaluation and coming to a discretionary conclusion about where the justice of the case lies.

[61]

[23] I have therefore been asked to determine the amount that reflects the proportion of the plaintiff's loss of $467,187.45 that I consider is just and equitable, having regard to the extent of the sixth and eight defendant's responsibility for the damage to the cotton crop.

[62]

[24] I will turn first to the question of what effect the pre trial settlement with the other defendants has on the present proceedings. The defendants having previously argued that the settlement figure should be taken into account in the calculation of the damages which the sixth and eight defendants should be ordered to pay.

[63]

What is the effect of the settlement and does it get taken into account?

[64]

[25] Section 32B of CLA provides as follows:-

[65]

(1) In relation to an apportionable claim, nothing in this part prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any loss or damage from bringing another action against any other concurrent wrongdoer for that loss or damage.

[66]

(2) However, in any proceeding in relation to the other action, the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the Plaintiff in relation to the loss or damage, would result in the Plaintiff receiving compensation for loss or damage that is greater than the loss or damage actually suffered by the Plaintiff."

[67]

[26] It is clear that s 32B only relates to a situation where a plaintiff has previously recovered judgment against a concurrent wrongdoer.

[68]

[27] That is not the position in the current case as the plaintiff has not actually recovered judgment against a concurrent wrongdoer as the proceedings against the other defendants were settled prior to trial.

[69]

[28] Section 32B does not therefore apply.

[70]

[29] Turning then to the next question which relates to the apportionment of liability with the other six defendants in this proceeding.

[71]

[30] The provisions which relate to proportionate liability are set out in part 2 of the CLA.

[72]

The requirements of s 31 of the CLA.

[73]

[31] The provisions of s 31 need to be carefully considered.

[74]

"31 Proportionate liability for apportionable claims

[75]

(1) In any proceeding involving an apportionable claim-

[76]

(a) the liability of a defendant who is a concurrent wrongdoer in relation to the claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just and equitable having regard to the extent of the defendant's responsibility for the loss or damage; and

[77]

(b) judgment must not be given against the defendant for more than that amount in relation to the claim.

[78]

(3) In apportioning responsibility between defendants in a proceeding the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceeding.

[79]

(4) This section applies to a proceeding in relation to an apportionable claim whether or not all concurrent wrongdoers are parties to the proceeding."

[80]

[32] Section 31(1)(a) requires therefore that before I proceed to examine any issue as to the amount of any judgment to be given pursuant to s 31(1)(b) I must first consider the liability of the other defendants who are concurrent wrongdoers.

[81]

[33] There are two qualifications which must be satisfied before s 31 applies to limit the defendant's liability for the plaintiff's loss:

[82]

(i) the proceedings must be for an "apportionable claim" and

[83]

(ii) the defendants must be "concurrent wrongdoers".

[84]

[34] The term "apportionable claim" is defined in s 28(1)(a) to include "a claim for economic loss or damage to property in an action for damages arising from a breach of duty of care".

[85]

[35] I consider that the claim made by the plaintiff against the defendants in negligence is an apportionable claim as defined in s 28 of the CLA because the claim was for economic loss or damage to property in an action for damages arising from a breach of a duty of care.

[86]

[36] Therefore the next question I need to determine is whether the current action involves concurrent wrongdoers and if so who they are.

[87]

Are the other defendants and the second pilot concurrent wrongdoers?

[88]

[37] Amongst all of the parties involved in this case are there any concurrent wrongdoers?

[89]

[38] Are the landholders and their employees, that is essentially the first to fifth defendants, concurrent wrongdoers?

[90]

[39] Are the aerial spraying company and its chief pilot, that is the sixth and eighth defendants, concurrent wrongdoers?

[91]

[40] Is the second pilot Michael Baker who was an employee of the sixth defendant, and not a party to the proceeding, nonetheless a "concurrent wrongdoer" as defined in s 30 of the CLA?

[92]

[41] Section 30, which sets out the requirements of a concurrent wrongdoer, is as follows:

[93]

"A concurrent wrongdoer, in relation to a claim, is a person who is 1 of 2 or more persons whose acts or omissions caused, independently of each other, the loss or damage that is the subject of the claim." (my emphasis)

[94]

[42] In this regard I note that the Queensland legislation is different to the New South Wales provisions which are set out in Reinhold. That legislation contained the words "or jointly" after the words "independently of each other" set out above.

[95]

[43] The sixth and eighth defendants submit that all the defendants are concurrent wrongdoers as all the defendants were sued for essentially the same liability, namely, the failure to take reasonable care to prevent damage to the plaintiff's cotton crop.

[96]

[44] On 26 October 2010 I sought further submissions in relation to the following questions:

[97]

(i) Having regard to s 30 of the CLA are the sixth and eighth defendants and Michael Baker concurrent wrongdoers?

[98]

(ii) If so, identify the acts or omissions of each causing independently of the other, loss or damage to the plaintiff.

[99]

(iii) Having regard to s 30, are the first and second defendants and the third and fourth defendants concurrent wrongdoers?

[100]

(iv) If yes, identify the acts or omissions of each, causing independently of each other, loss or damage to the plaintiff.

[101]

(v) Is a person a concurrent wrongdoer only if that person is in breach of an obligation enforceable at law eg "By an action for damages for breach of tort or contract" and that breach caused or contributed to loss or damage suffered by the plaintiff?

[102]

(vi) If so, what is the evidence which demonstrates in respect of each of the first to fifth defendants, the seventh defendant and Michael Baker,

[103]

(c) that the breach caused or contributed to the loss?

[104]

The onus in relation to s 31(1)(a).

[105]

[45] Another preliminary issue which needs to be determined is the question as to who bears the onus of proof in relation to the limitation of the liability of a defendant which is found in s 31(1)(a). That section limits a particular defendant's liability to that proportion of the loss or damage that the court considers just and equitable having regard to the extent of the defendant's responsibility for the loss or damage.

[106]

[46] The Act itself is silent as to who bears the onus.

[107]

[47] The sixth and eighth defendants argue that the plaintiff continues to bear the onus of proving its case, including the onus of proving the proportion of loss or damage which is just and equitable, having regard to the extent of the particular defendant's responsibility for the loss or damage. The argument is that the plaintiff needs to prove all the necessary facts to satisfy the Court that a defendant is liable to it and the amount of damages it should accordingly pay.

[108]

[48] The sixth and eighth defendants also argue that s 12 of the CLA supports their argument. Section 12 provides that in deciding liability for a breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

[109]

[49] Reliance is also placed on the High Court decisions of Watts v Rake[3] and Purkess v Crittenden[4] which dealt with the onus that rests on a plaintiff to prove the quantum of its loss. The sixth and eighth defendants submit that those principles also apply to the onus that rests on a plaintiff to prove all of the necessary facts to establish liability and, in a regime where the defendants' liability is limited, the extent of that liability (i.e. what the defendant has caused by its negligence). The plaintiff must also prove the amount of damages for which the defendants should be liable.

[110]

[50] In those cases, the High Court indicated that where a plaintiff prima facie meets its burden and establishes that the defendant has caused the injury and the amount of damages for which it should be responsible, it is for the defendant to prove that in fact there was another cause of the damages or that the damages should be reduced on account of a failure to mitigate or contributory negligence. Whilst the defendants accept that a defendant bears the burden of establishing affirmative defences, the defendants submit that s 31 does not establish a defence, but rather it limits the liability and the plaintiff's entitlement to that part of the loss the defendant has caused. The defendants argue that that is part of the plaintiff's case and is a matter for the plaintiff to establish.

[111]

[51] In order to succeed in a claim for negligence, the defendants submit that the plaintiff has to prove the facts necessary to establish that: (i) a duty of care existed; (ii) it was breached; and (iii) that the defendant's negligence caused a particular amount or proportion of the loss. The defendants submit that burden must rest and remain on the plaintiff throughout.

[112]

[52] In this regard, the defendants also rely upon the observations of de Jersey CJ (with whom Jerrard JA and White J - as her Honour then was - agreed) in the decision of PMB Australia

[113]

Ltd v MMI General Insurance Ltd,[5] where the Chief Justice observed that:[6]

[114]

"I turn to the issue of the onus of proof. Was the learned Judge right to regard the onus of identifying the loss particularly relevant to the outbreak as being borne by the appellant? Relying on Watts...and Purkess...the appellant submitted that it fell to the respondents to do the "disentangling". But the Judge took the view that the appellant had not in certain respects by evidence established even a prima facie entitlement to the whole of the loss, such as would - had it occurred, have obliged the respondents then to dissect out any parts for which they contended they should not be liable. On that basis Her Honour distinguished the approach established by Watts and Purkess: it was for the appellant to establish what loss directly resulted from interruption to the business in consequence of the contamination, being the loss referable to the specific instant of contamination, not extending to the broader "new awareness" aspect. To the extent to which the appellant's claim failed, the Judge took the view that the appellant had not reached a prima facie level of proof. Again, I regard her approach as justified."

[115]

[53] The defendants therefore submit that the failure of the plaintiff in these proceedings to lead evidence about the role and negligence of the other defendants[7], especially when combined with the plaintiff's own allegations against those parties, should lead to a Jones v Dunkel[8] inference being drawn against them. The defendants argue that it should be inferred that the evidence from those persons would not assist the plaintiff in proving that they were not responsible for the loss or that their contributions were minimal. If that were the case, the plaintiff should have called them as witnesses.

[116]

[54] Thus it is submitted that the plaintiff bore and bears the onus of leading evidence to establish that the defendants are liable and to what extent. The defendants submit that the plaintiff has failed to meet that burden and the defendants' liability should be limited.

[117]

[55] The plaintiff, however, argues that the onus falls on the defendants because its case against the sixth and eighth defendants based on negligence succeeded. The essence of the plaintiff's argument would seem to be that, if the sixth and eighth defendants wish to have the benefit of a limitation on liability, then those defendants should bear the onus of pleading and proving the elements of that limitation.

[118]

[56] The plaintiff relies on the reasoning adopted by Hammerschlag J in the New South Wales Supreme Court in Ucak v Avante Developments Pty Ltd[9] as follows:

[119]

"[34] In order for a person to be a concurrent wrongdoer he must be one whose acts or omissions caused the damage or loss that is the subject of the claim.

[120]

[35] It follows in my view, that for a defendant to assert that there is a person who is a current wrongdoer, the defendant must plead the necessary elements which result in the asserted conclusion. Those elements are:

[121]

(b) the occurrence of an act or omission by that particular person; and

[122]

(c) a causal connection between that occurrence and the loss that is the subject of the claim."

[123]

[57] The plaintiff also relies in particular on an article by Professor Barbara McDonald,[10] referred to by Einstein J in Nemeth v Prynew.[11] Whilst the decision is of no particular assistance, as it was an ex tempore decision given in relation to an interlocutory application by the third defendant to amend a pleading to allege proportionate liability against an unnamed wrongdoer, the article is of assistance as the author examines the question as to who bears the onus of proof of concurrent wrongdoing. The article stated:

[124]

"The legislation is silent as to which party bears the onus of proving that the defendant is a concurrent wrongdoer, whose liability will be limited to its proportion of responsibility, rather than what might be called a sole wrongdoer. This silence is only significant in jurisdictions other than Victoria, as in those jurisdictions a court may consider the contribution of concurrent wrongdoers who are not parties to the action: therefore, the fact that the plaintiff has joined only one defendant does not necessarily mean that that defendant will be treated as a sole wrongdoer.

[125]

Obviously where a plaintiff has sued more than one defendant in relation to any loss then it is implicit that, if the plaintiff succeeds against each one, they are each liable as a concurrent wrongdoer. In other cases it may be obvious from the plaintiff's pleading that more than one person was to blame, eg, where defendant A's negligence is a failure to supervise B (who may or may not be a party) or a failure to prevent loss caused by B, who was also negligent. In such cases, it will be clear that the facts involve concurrent wrongdoers. But in other cases, the contributions of other parties may not be obvious on the facts pleaded by the plaintiff, eg, A is a head contractor who has been negligent, but part of the work was in fact carried out by a reputable sub-contractor B who was also negligent.

[126]

The legislation stops short of explicitly placing an onus on defendant A to plead and prove that other wrongdoers also caused the relevant loss and that therefore the apportionment provisions apply to limit his liability. It merely states that in the case of concurrent wrongdoing, A's liability is limited.

[127]

Is this a defence which A must plead? It seems just that if a defendant wishes to have the benefit of a limitation on liability, then the defendant should bear the onus of pleading and proving the elements of that limitation. In Platt v Nutt Kirby P, in a dissenting judgment, referred to 'the general rule which obtains in our courts namely that "those who assert must plead". That principle applies throughout the law'. If the onus is on a defendant to plead and prove a defence under limitations of actions statutes then, by analogy, the onus should be on the defendant to prove the limitation of liability under apportionment legislation.

[128]

It will sometimes be the case that a defendant is in a better position than the plaintiff to identify who else was to blame. Under previous models the plaintiff was put in an invidious position if, in ignorance of B's contribution, it sued only A, its recovery of 100 percent of its damages could be limited by A alleging, well into the proceedings, that B was also to blame, yet there was no explicit obligation on A to inform the plaintiff of the contribution by B. Indeed, there could be said to have been an incentive under this model for A to keep quiet about B's involvement and to adduce evidence that non-parties were to blame.

[129]

The federal reforms and the NSW Act provide for a limited deterrent on defendants against keeping silent about wrongdoers at an early stage in proceedings: they provide that if the defendant does not give the plaintiff written notice 'as soon as practical' of circumstances it knows which, on reasonable grounds, make another person a concurrent wrongdoer, then it will be liable, possibly on an indemnity basis, for the plaintiff's 'unnecessary ... . costs in the proceedings'. But this provision is a long way short of a more effective guarantee of co-operation by a defendant in the bringing of all relevant parties to court: eg, a provision which would estop it from relying on the contribution of non-parties to reduce its own liability unless it gave early notice, say, in its pleadings, of its intention to do so. A plaintiff will not necessarily want to halt proceedings at a later stage and set about joining another party, even if the defendant has to bear the costs of it doing so."

[130]

[58] The question is really whether the CLA changes the general rule that the onus is on a defendant to plead and prove a defence.

[131]

[59] It would seem to me, having considered the relevant principles as well as the cases referred to above, that the onus should be on a defendant to prove the limitation of liability under apportionment legislation. I consider that the plaintiff has prima facie met its burden and established that the defendants caused the injury and the amount of damages for which they should be responsible. It is the sixth and eighth defendants who have pleaded reliance on the proportionate liability provisions of the CLA.

[132]

[60] I therefore consider it is for the sixth and eighth defendants to prove that the damages should be reduced because there are concurrent wrongdoers who are liable to the plaintiff because their act or omission has caused the loss or damage. In this regard, I would endorse the approach of Hammerschlag J in Ucak v Avante Developments Pty Ltd set out above in paragraph 51. Such an approach was also supported by the observations of McGill DCJ in Evans & Ors v Brannelly & Ors,[12] where his Honour stated:

[133]

"[205] The pleading of the first and second defendants did not outline any basis upon which the other asserted concurrent wrongdoers were liable to the plaintiff_. Given that this was an issue raised by the defendants, it seems to me that it follows logically that the defendants have the onus of showing the existence and liability of the concurrent wrongdoers._ The current pleading does not even satisfy the requirements laid down in Ucak v Avante Developments Pty Ltd [2007] NSWSC 367, where Hammerschlag J held, among other things, that in order to assert that the person was a concurrent wrongdoer the defendant must plead the occurrence of an act or omission by that person: [35]. He went on to hold that it was insufficient to assert a conclusion without pleading the material facts on which that conclusion depended: [36]. The same deficiency occurred in the present case." (my emphasis)

[134]

Have the defendants satisfied the onus in relation to whether the other defendants are "concurrent wrongdoers"?

[135]

[61] The question therefore is whether the sixth and eighth defendants have each satisfied the onus on them to establish that each of the other defendants and Michael Baker are concurrent wrongdoers.

[136]

[62] As Palmer J stated in Yates, the Court must exercise a large discretionary judgment founded upon the facts proved in each particular case (my emphasis). In my view the question which looms large in this case is: what are the facts which have been proved in relation to the liability of the other defendants?

[137]

[63] It is clear that in this case, unlike Yates and many of the other decisions referred to in the submissions, the other defendants were not parties at the trial of the action.

[138]

[64] What facts have been proved such that the sixth and eighth defendants can rely on them as indicating a basis for the apportionment of liability?

[139]

[65] It is significant to note that the sixth and eighth defendants submit that the pleadings can be relied upon in this regard. However, as Hammerschlag J noted, the question which arises is whether the pleadings simply assert that the parties are concurrent wrongdoers or whether the material facts which establish the occurrence of an act or omission and the causal connection between that occurrence and the loss that is the subject of the claim have in fact been pleaded.

[140]

[66] The only Queensland case which I have been referred to is the decision Evans & Ors v Brannelly & Ors[13] referred to above and I concur with the views of McGill DCJ about the intention of the legislation:[14]

[141]

"Whatever the legislative intention was in relation to these provisions, it could hardly have been to encourage judicial speculation about these matters. There needs to be a proper foundation for any conclusion that there was liability on the part of an alleged concurrent wrongdoer."

[142]

Are the first to fifth defendants and the seventh defendant concurrent wrongdoers?

[143]

[67] The first to fifth defendants were the landowners and managers of the properties "Sherwood" and "Wallumba". The seventh defendant was the supplier of the herbicides.

[144]

[68] The evidence at trial indicated that the spraying which was conducted was clearly not a routine matter as it involved the spraying of 420 hectares of land over a five hour period to kill trees (rather than fertilise crops or spray for insects). It is clear that the chemicals had to be specially mixed and the pilot's evidence was that this was not a usual spraying operation. The pilot Baker, who had flown many thousands of hours and was an experienced aerial sprayer, stated that he had never done such a job before and that it was a delicate operation.

[145]

[69] The plaintiff claimed that the first to fifth defendants engaged the sixth defendant to spray the herbicides and that the seventh defendant advised those defendants in relation to the use and application of the herbicides and supplied those chemicals to them.

[146]

[70] It would seem to me that the eight defendants really potentially fall into several categories of defendants.

[147]

(i) The defendants who requested the chemical spraying of their fields to kill the trees.

[148]

(ii) The defendants who joined in with the arrangement, organised by others, to spray the trees,

[149]

[71] The question remains, however, as to what facts have been proved in relation to the relative responsibilities of each of these defendants in relation to the spraying. The only defendants who gave evidence are the defendants in category (iv).

[150]

[72] In relation to the first category of the defendants, that is those defendants who requested that the spraying should take place, the potential defendants are the first to fifth defendants who are the landowners or the managers of the properties where the spraying took place.

[151]

[73] As I have indicated none of the landowner/manager defendants gave evidence. Even if the pleadings are relied upon as submitted what do they actually reveal? The sixth and eighth defendants argue that it is "their omissions which are independently causative of the loss. They each failed to ensure that reasonable care was taken." It is argued that these defendants omitted to ensure reasonable care was taken and because they omitted to exercise reasonable care in having regard to the label on the chemicals. It is argued that because the warnings on the label for Metsulfuron were clear then it would have been clear to all defendants and that the 'proper inference' is that "the First to Fifth defendants either saw, or ought to have regard to, the label."

[152]

[74] In my view the evidence does not support such an inference. The findings which were made did not include any findings about the knowledge or responsibility of the first to fifth defendants in relation to the mixing or spraying of the chemicals. Neither do the pleadings assist. In the Defence of the third, fourth and fifth defendants the fourth and fifth defendants admit that they engaged the seventh defendant to arrange the aerial spraying. The third, fourth and fifth defendants admit that the seventh defendant supplied herbicides to them. The seventh defendant, however, only admits that in November 2005 he gave advice to the fifth defendant, who was acting on behalf of the third defendant, identifying a formula for the control of trees on "Wallumba". The seventh defendant admits only that he sold various herbicides to the third defendant in December 2005 but denies supplying herbicides to the first, second, fourth or fifth defendants. The eighth defendant also stated in evidence that he was contacted about the job by an employee of the seventh defendant.

[153]

[75] The seventh defendant is in the second category of defendant. The seventh defendant Ross York is an agronomist who trades through a business called Elite Agricultural Services. It was alleged that employees of that business advised in relation to the use of the chemicals.

[154]

[76] It is argued that it was the seventh defendant's responsibility to supply and give advice on the combinations and strengths of chemicals for particular agricultural purposes. The fifth defendant went to the seventh defendant with a request for chemicals to treat a particular problem. The seventh defendant came up with the chemical solution or "recipe" to solve the problem. The seventh defendant was not present when the chemicals were mixed. However we have no evidence directly from either Ross York or the employee, Marcia Smith, about any instructions that may have been given about the mix. This is a significant problem in my view, as we do not have any evidence as to what in fact occurred in relation to the supply or mixing of the chemicals.

[155]

[77] The difficulty is of course that six of the eight defendants did not participate in the trial. In particular, the evidence at trial did not in fact establish:

[156]

(ii) who the seventh defendant supplied the chemicals to

[157]

(iii) who the seventh defendant advised in relation to the use of the chemicals

[158]

(iv) the state of knowledge of each defendant about the concentration and mix of the chemicals or the need for a permit.

[159]

(v) the knowledge and expertise of the first to fifth defendants.

[160]

(vi) who was present at the fields on the day of the spraying.

[161]

(vii) what was said by any of the first to fifth defendants on the day of the spraying.

[162]

[78] Accordingly against that background, what facts have been proved which allow me to be satisfied firstly that these parties were concurrent wrongdoers and then to allocate the proportionate liability which is just and equitable in the circumstances?

[163]

[79] It is important to again consider the definition of concurrent wrongdoer which is as follows:

[164]

"A concurrent wrongdoer, in relation to a claim, is a person who is 1 of 2 or more persons whose acts or omissions caused, independently of each other, the loss or damage that is the subject of the claim."

[165]

[80] Accordingly, the issue is whether these defendants are persons whose acts or omissions caused, independently of each other the loss or damage.

[166]

[81] In Reinhold Barrett J examined the meaning of "concurrent wrongdoer" in the New South Wales provisions and stated:

[167]

"19 It seems to me clear that a person will be a 'concurrent wrongdoer' only if the court makes findings about the existence of "loss or damage" and about which acts or omissions "caused" the loss of damage. It is only when those findings are made that it is possible to identify, as contemplated by s 34(2), each person whose acts or omissions, as found, "caused' the "loss or damage", as found. At that point and not before, a person can be seen to be a concurrent wrongdoer.

[168]

The relevant "claim" - that is, the claim in relation to which the identified person is a "concurrent wrongdoer" - can only be the claim in respect of which the findings concerning loss or damage and causation are made. That claim, is of necessity, a claim already litigated, not a pending or foreshadowed claim. Its nature and content (and therefore, its status under s 34(1)) will be discoverable by looking at the findings that cause it to be determined as it is determined. If on those findings, it is seen that the loss or damage (as established in an "action for damages") arose from a failure to take reasonable care and did not arise out of a personal injury, the case will be within s 34(1) (a); and if it is seen that there was a contravention of s 42 of the Fair Trading Act, the case will be within s 34(b). In either such case, the already litigated 'claim' will be an 'apportionable claim' because of s 34 (1) and, if, on the findings made, the acts or omissions of several persons caused the 'damage or loss' as found, the persons will be 'concurrent wrongdoers'."

[169]

[82] It is clear that Barrett J considered that these things can only be judged after the loss or damage and its causes have been identified through a process of fact finding and analysis. Whilst he considered that pleadings might allege an intentional act or omission it is impossible to say when a claim is in a "pending state" whether the loss or damage was in fact caused by that act. He concluded:

[170]

"22 On this basis, the nature of a 'claim', for the purposes of part 4, will be determined by what the court has decided in the case, not by what might be prayed or pleaded in an initiating process or points of claim. In short 'claim' refers to a claim as proved and established, not a claim as made or advanced."

[171]

[83] No findings have been made in respect of the first to fifth or the seventh defendant such that the findings identify any of those defendants as being persons whose in acts or omissions caused the loss or damage.

[172]

[84] What evidence is there that each of those defendants is a "person who is 1 of 2 or more persons whose acts or omissions caused, independently of each other, the loss or damage that is the subject of the claim"?

[173]

[85] It is clear that in my reasons I found that the sixth and eighth defendants were negligent as they had breached a non delegable duty to ensure that the products sprayed did not affect the susceptible cotton crops in the vicinity. It is clear that those findings in essence indicated that the damage to the cotton crops was caused by the spraying of off-label concentrations of chemicals that were not mixed to the correct ratios during inappropriate weather conditions in an inappropriate way. Whilst reliance was placed on Bonic v Fieldair,[15] I made findings only in relation to the liability of the sixth defendant Meandarra Aerial Spraying and the eighth defendant, the pilot Hill.

[174]

[86] The first to fifth defendants who are the landowners and managers are not vicariously liable for the actions of the sixth and eight defendants. They were independent contractors who appeared to have the necessary skills and experience to carry out the work for which they were engaged. There is no evidence that the third and fourth defendants gave any instructions to the sixth defendant. Even if I accepted the submission that the pleadings can be relied upon I do not consider that the pleadings in this case establish the matters I need to be satisfied about.

[175]

[87] I am not satisfied that the sixth and eighth defendants have satisfied the onus on them to establish that the first to fifth or the seventh defendants were concurrent wrongdoers.

[176]

Are the sixth and eighth defendants and Michael Baker concurrent wrongdoers?

[177]

[88] The sixth defendant Meandarra Aerial Spraying was engaged by the first five defendants to do the aerial spraying on their properties.

[178]

[89] Lachlan Hill the eighth defendant, who is the managing director and chief pilot of Meandarra, flew one plane. Michael Baker the other pilot was employed by Meandarra and flew the second plane. It was the sixth defendant that was engaged by the landowners and the sixth defendant that sent invoices for the work done by the eighth defendant and Baker.

[179]

[90] Baker was the pilot in charge of the second plane on the day of the spraying and he was therefore one of the 2 pilots who actually did the spraying on the day. Whilst there is evidence he loaded the chemicals into his plane there is no clear evidence that he was the one who actually mixed the chemicals on the day. The evidence indicates that Baker was briefed by Hill on the work to be done and that he received specific instructions from Hill in relation to the job that day. It was clear from Baker's evidence that he was deferring to Hill's greater experience as he had never completed a job of this nature before. Hill's evidence also indicated that there was a company policy about the height the plane was to be flown over the canopy and the release height.[16].

[180]

[91] I agree with the submissions of the plaintiff that there is a gap in the evidence as to the extent of Baker's involvement in the mixing of the chemicals on the day and what he knew about the chemicals.

[181]

[92] It is argued by the sixth and eighth defendants that because Baker carried out the spraying he therefore breached a non delegable duty to ensure that the properties in the vicinity were not damaged by the spraying.

[182]

[93] Bearing in mind that the definition of "concurrent wrongdoer" is a person who is one of two or more persons whose acts or omissions caused, independently of each other, the loss or damage that is the subject of the claim, what evidence is there that Baker by his act or omissions, independent of the actions of the Meandarra and Lachlan Hill, has caused loss or damage the subject of the claim as argued by those defendants?

[183]

[94] Similarly, Hill was an agent of the sixth defendant Meandarra and accordingly his position is similar to that of Baker. What evidence is there that Hill, independently of the actions of the sixth defendant, caused the loss or damage?

[184]

[95] As Barrett J held in Reinhold v New South Wales Lotteries Corporations (No 2):

[185]

"32. The provisions of part 4 are compulsory. They change substantive rights, so that a plaintiff's ability to obtain an adjudication of joint and several liability is removed where the circumstances of the type to which the alternative regime of proportionate liability is applied. A case no doubt needs to be pleaded and proved by one or more defendants so as to engage the statutory provisions. But it will be the findings ultimately made that determine whether the statutory conditions compelling the court to adopt the proportionate approach are satisfied." (my emphasis)

[186]

[96] Furthermore it is significant that the CLA definition of "concurrent wrongdoer" does not include the words "or jointly". The liability of a negligent employee and a vicariously liable employer is "joint" and not "independent".

[187]

[97] I am not satisfied the sixth and eighth defendants have satisfied the onus on them to establish that they were concurrent wrongdoers.

[188]

[98] I am not satisfied the sixth and eighth defendants have satisfied the onus on them to establish that Baker was a concurrent wrongdoer.

[189]

[99] Accordingly, in relation to the liability as between the sixth and eighth defendants, I am not satisfied that the statutory conditions compelling the court to adopt the proportionate approach have been satisfied and I will not proceed to apportion liability as between the sixth and eighth defendants pursuant to s 31(a) of the CLA.

[190]

[100] With respect to the liability as between the eight defendants and Michael Baker similarly I am not satisfied that the statutory conditions compelling the court to adopt the proportionate approach have been satisfied and I will not proceed to apportion liability as between the Michael Baker and the eight defendants.

[191]

[101] The sixth and eighth defendants have not shown therefore that the first to fifth defendants, the seventh defendant or Michael Baker are concurrent wrongdoers for the purposes of s 30 of the CLA. The claim for apportionment under the CLA therefore fails.

[192]

[102] Accordingly, each of the sixth and eighth defendants is liable for the damage unaffected by the CLA.

[193]

[1] [2007] NSWSC 1463.

[194]

[2] [2008] NSWSC 187.

[195]

[3] [1960] HCA 58; (1960) 108 CLR 158.

[196]

[4] [1965] HCA 34; (1965) 114 CLR 164.

[197]

[5] [2002] QCA 361.

[198]

[7] For example from the landowners and managers themselves (the First to Fifth Defendants) and the Seventh Defendant and his employee or agent Marcia Smith.

[199]

[8] [1959] HCA 8; (1959) 101 CLR 298.

[200]

[10] 2005, 26 Australian Bar Review 29.

[201]

[11] [2005] NSWSC 1296.

[202]

[12] [2008] QDC 269.

[203]

[13] [2008] QDC 269.

[204]

[15] [1999] NSWSC 636.