GEJ & MA Geldard Pty Ltd v. Mobbs & Ors (No 2) 
QSC (11 March 2011)
A defendant has the onus of proving that its liability should be
limited under part 2 of the Civil Liability Act 2003 (Qld)
(CLA), to avoid having to pay 100% of the
The plaintiff claimed its cotton crop had been damaged by the
drift of herbicides resulting from the aerial spraying of
neighbouring properties. The plaintiff sued eight defendants
including the neighbouring owners, the aerial spraying operator,
its pilot and the company supplying the herbicides.
Before trial, the plaintiff settled its claim with all
defendants except the aerial spraying operator and the pilot. At
trial, the court found the aerial spraying operator and the pilot
negligent: having sprayed the chemicals in incorrect ratios and
mixes and in inappropriate weather conditions. Damages in the sum
of $467,187.45 were awarded.
A further hearing was held to determine first, if the liability
for those damages could be reduced by the settlement sum previously
received by the plaintiff and second, if the liability for damages
could be apportioned between all defendants, including the
defendants who had earlier settled with the plaintiff.
With respect to the first point, the court found that the
earlier settlement was not a "judgment" against a
concurrent wrongdoer within the meaning of section 32B of the CLA
and was therefore not relevant to any apportionment question.
With respect to the second point, the court found that the onus
was on the defendants who were attempting to limit their liability
(the aerial spraying operator and the pilot) to establish that the
proceedings were an "apportionable claim" under section
28 of the CLA and that the other defendants were "concurrent
wrongdoers" under section 30.
The court agreed the claim was apportionable as it involved
economic loss suffered as a result of damage to property caused by
a breach of duty of care.
In determining if other parties are concurrent wrongdoers, it is
necessary to determine what was "just" (and therefore
"equitable") in terms of what burden each party should
bear for the full loss. For example:
Which of the wrongdoers was more actively engaged in the
activity causing loss?
Which of the wrongdoers was more able to effectively prevent
the loss happening?
In the instant case, the other defendants who settled with the
plaintiff were not concurrent wrongdoers as there was no evidence
led at trial and no findings were made to establish that the acts
or omissions of those other defendants had caused the
plaintiff's loss and damage.
Negligent defendants pursued by a plaintiff must prove that the
claim is one in which liability can be shared and that the court
has made findings that the other parties have contributed to and
caused the same loss to the plaintiff before they can limit their
liability and argue what proportion of the loss they justly deserve
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