Hager, Vaughan --- "Do You Catch My Drift? Use of Herbicides in Agricultural Spraying" [2023] PrecedentAULA 56; (2023) 178 Precedent 36

---

Do you catch my drift? Use of herbicides in agricultural spraying

By Vaughan Hager

If you didn't care what happened to me

And I didn’t care for you

We would zigzag our way through the boredom and pain

Occasionally glancing up through the rain

Wondering which of the buggers to blame

And watching for pigs on the wing

Pigs on the Wing (Part One), Roger Waters (1977)

AM I A NUISANCE?

The tort of nuisance is tied to property rights and the use of property, particularly the unreasonable use of property. Likewise, although there have been incremental changes to the law of negligence, for the purposes of this article, we can assume it to be reasonably settled – one should always be a good neighbour. I will discuss the law in this area in light of the decision in Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd^[1] (Butler).

The plaintiff (Butler) had contracted with Coles for the ongoing supply of spring onions. In 2014, the plaintiff started growing spring onions in Swan Hill, leasing 30 acres of land from the defendant (Burrell) for this purpose. The defendant grew lucerne on the adjoining land. Lucerne dies back over winter and re-sprouts in spring. Spraying of herbicides such as flumioxazin usually takes place in winter to stop regrowth of weeds in the spring. Such chemicals are sold under trade names. In this case, a mixture of SpraySeed and Valor (flumioxazin) was purchased by the defendant from, and on the recommendation of, a local supplier. At that time, however, Valor was not registered for use on lucerne while SpraySeed was specified for use in lower concentrations than ultimately applied.^[2]

Between 22 and 28 July, the defendant’s contractor sprayed the lucerne with these herbicides. By 28 July 2014, the plaintiff’s spring onions were ready for harvest. It was windy and there was evidence that spray drift had been seen during the day. Damage to the spring onion crop was immediate and the spoilage patterns observed on the spring onions were consistent with the spray drift that had been observed. Most of the crop was unfit for sale and in order to complete the Coles contract, the plaintiff had to source spring onions from Queensland at considerable expense.

THE LAW

Claims in nuisance require that the plaintiff show that there has been a substantial and unreasonable interference in their use of land, leading to loss and damage. In contrast, claims in negligence require the existence of a duty of care, a breach of that duty and the quantification of loss and damage which flows from that breach – naming, blaming and claiming. Foreseeability is relevant in the sense that the defendant will not be liable if the harm was unforeseeable. But once harm is foreseeable, the evidentiary burden shifts to the defendant to show that the interference was reasonable. Assessing what is unreasonable can involve:

• where there are competing land uses, weighing various public interest factors regarding each use; and

• asking whether the defendant had taken reasonable precautions to prevent the harm.

In practice, it is common to plead both causes of action.

However, there continues to be some tension in the decisions in this area, and some conflation of ideas in argument. In Butler, the plaintiff contended that nuisance attracts strict liability. This is not correct, as Richards J found. The Privy Council’s advice in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty^[3] (Wagon Mound (No. 2)) has not been overruled: ‘negligence is not an essential element in nuisance’ however ‘fault of some kind is almost always necessary’^[4] – the blaming part. And that requires a consideration of foreseeability.

Whether someone has failed to abate a nuisance or failed to take proper care in creating a nuisance is a question of fact and involves a balancing of the property rights of the parties, including as to use. It is no excuse to say that the plaintiff came to the nuisance or that one had done everything possible to contain the nuisance. If the risk of the nuisance is high, the diligence expected of a defendant commensurately increases. Foreseeability is therefore important and a necessary element in all classes of nuisance. In a libel case in 1903, Lord Collins, sitting as the Master of the Rolls, coined the term, ‘The man on the Clapham omnibus’.^[5] This is what we know in modern practice as the reasonable person test. Faced with all of the facts, what would she do? What would have been foreseeable to her at the time of the nuisance? Was it obvious she should take some positive step or have avoided some step to prevent the nuisance? In that inquiry, the court may find fault. And then damages. But it will not do so where the foreseeability of the harm is too remote, or if the harm is de minimis.

In Butler, her Honour found that the plaintiff’s ‘entire spring onion crop was damaged by herbicide spray drift’ from the spraying of the defendant’s lucerne and the harm was ‘entirely foreseeable’. She also found that the plaintiff ‘was unable to sell any of its crop during the window from late July to early September’ and that there could be ‘no doubt that the spraying amounted to a substantial interference’ with the plaintiff’s use and enjoyment of the land.^[6]

The other part of the blame game is to show that the interference was unreasonable. This requires the court to consider a number of competing factors. On the one hand, an individual’s property rights are sacrosanct in the Western world and the system of law and commerce it has produced. On the other, individual liberty will be curbed by the law to the extent that it impinges on another person’s legitimate interests. In Butler, Richards J said that the following factors were relevant:

‘... the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.’^[7]

The Court’s inquiry is a value judgement. In Butler, her Honour, rightly, concerned herself with the question of whether Burrell’s crop spraying attracted a ‘stringent’ degree of diligence. The High Court has said that there will be situations where ‘the standard of “reasonable care” may involve "a degree of diligence so stringent as to amount practically to a guarantee of safety”’.^[8] The correct consideration is of the standard of care which an ordinary person in the circumstances of the defendant should exercise to avoid or stop a nuisance. In simple terms, there is a correlation – the higher the risk, the higher the degree of care required. A synthesis of these factors produces the standard of care required in a given situation. Her Honour went on to cite a case involving aerial spraying of herbicides resulting in damage to cotton crops, in which the Queensland Court of Appeal held:

‘Having regard to the potentially catastrophic and widespread consequences of careless aerial spraying of potent herbicides the appellants were obliged to fulfil a very high standard of care, but their duty remained a duty to take reasonable care.’^[9]

As her Honour noted, in Riverman Orchards Pty Ltd v Hayden,^[10] a case involving herbicide spray drift damage to a neighbouring vineyard, Dixon J reached a similar conclusion:

‘The defendant did not dispute that he owed [the plaintiff] a duty to take reasonable care when spraying ... herbicides. He accepted that he owed a duty to exercise the reasonable care and skill of a farmer in the same or similar circumstances.’^[11]

And so, Richards J found that Burrell owed a duty to its neighbour, Butler, to take reasonable care when spraying herbicides and to avoid a foreseeable risk of damage to the spring onion crop that Butler was growing on the adjacent block. In total, $1,346,570 in damages were awarded to the plaintiff.

DO YOU CATCH MY DRIFT?

Several factors led to Butler’s success, but mainly record keeping:

• Butler gave clear evidence of the state of the crop just prior to the spray drift event.

• The spring onions were inspected by an agricultural expert shortly after the spray drift event.

• Burrell had knowledge of the spring onions and agreed to them being grown.

• Burrell’s contractor was not properly certified with the correct permits in place.

• Precautions were not taken for the elements, particularly wind.

• The instructions for the use of the chemicals were not read or were not read properly.

• There was clear evidence of the loss suffered by Butler by reason of the loss of the Coles contract.

Farming is a dangerous business. Agriculture, forestry and fishing are Australia’s most dangerous industries. They account for more deaths per 100,000 people (13.1) than the next two industries combined (transport, postal and warehousing (7.8) and construction (3.1)).^[12] Agricultural spray drift incidents are not new to farmers, their insurers, or lawyers, and continue to cause harm. In January this year, the ABC reported on a spray drift incident which occurred in the Darling Downs basin in Queensland and caused an estimated $100 million in damage to a crop of cotton.^[13] The cost of the chemicals, according to one agronomist, might have been $500. In that article, Crop Consultants Australia ‘confirmed there had been spray drift detected across every cotton valley planted in Australia so far this season’.

Several factors affect the increased use of chemicals and other additives in agriculture, a major factor being climate change and the knock-on effects. Parts of Australia have suffered long drought and in recent times have had unprecedented rain. As a result, weeds have become more difficult to control without the use of farming inputs. Weeds also become more resistant to commonly used poisons. There are state-by-state regulatory requirements for agricultural aerial spraying, but being state based, the requirements vary.^[14] When advising on liability in this space, this is worth remembering – and if all else fails, read the instructions (both on the product label, and elsewhere).

Lastly, remember to be a good neighbour.

Vaughan Hager is a Melbourne based lawyer specialising in commercial litigation. He is the principal of his own firm, Hager & Co., having established the practice in 2022 after several years with large, mid-tier and boutique firms.

---

^[1] [2018] VSC 768 (Butler) (Richards J).

^[2] Ibid [109].

^[3] [1966] UKPC 1; [1967] 1 AC 617 (Wagon Mound (No. 2)).

^[4] Butler, above note 1, [95] quoting Wagon Mound (No. 2), 639.

^[5] McQuire v Western Morning News Co Ltd [1903] UKLawRpKQB 105; [1903] 2 KB 100, 109 (Collins MR).

^[6] Butler, above note 1, [92]–[99].

^[7] Butler, above note 1, [93] quoting Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287, [118] (McClure P, Buss JA agreeing).

^[8] Butler, above note 1, quoting Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, [41].

^[9] Butler, above note 1, quoting Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319, [8].

^[10] [2017] VSC 379 (Riverman).

^[11] Ibid [197]–[205].

^[12] Safe Work Australia, Key work health and safety statistics, Australia 2021 (25 Oct 2021) <https://www.safeworkaustralia.gov.au/doc/key-work-health-and-safety-statistics-australia-2021>.

^[13] E Bradfield and A Felton-Taylor, ‘Spray drift damages up to $100 million in cotton, prompting calls for more herbicide controls’, ABC News (6 Jan 2023) <https://www.abc.net.au/news/rural/2023-01-06/spray-drift-damages-100-million-dollars-of-cotton-darling-downs/101816638>.

^[14] For example see NSW National Parks and Wildlife Service, Aerial Spraying Guidelines, State of NSW and Department of Planning and Environment (2022) <https://www.environment.nsw.gov.au/-/media/OEH/Corporate-Site/Documents/Animals-and-plants/Pests-and-weeds/aerial-spraying-guidelines-220396.pdf>.