Australia: Aerial spraying company found liable for damage to crops on neighbouring property

In brief – Court of Appeal dismisses claim against property owner and pilot of aircraft

The NSW Court of Appeal has found that only the company which conducted the aerial spraying with herbicide was liable for the damage to crops on an adjacent property.

Damage by Aircraft Act considered in aerial spraying case

The NSW Court of Appeal recently set aside orders made in the District Court in a case involving damage to crops as a result of aerial spraying of herbicide which drifted onto neighbouring property.

The appeal in Bootle v Barclay [2013] NSWCA 142 involved consideration of the application of the Damage by Aircraft Act 1999 (Cth), the duty owed by the pilot, operator and property owners for whom spraying was being carried out and whether the aircraft owner was a "trading corporation" and the pilot an "employee".

Owners of damaged crops make claim against neighbours, spraying company and pilot

The Barclays claimed that aerial spraying of the herbicide glyphosate on the 5th and 6th of July 2005 caused damage to their emerging wheat and lucerne crops when the spray drifted onto their property from the adjoining property, which was owned and operated by the Bootles.

Proceedings were brought against the Bootles (both Richard Bootle in person and a related corporate entity), Macquarie Valley Ag Services Pty Ltd (MVAS) which conducted the aerial spraying business and Murray Shapley, the pilot of the aircraft during the aerial spraying operation.

There was no dispute regarding the damage sustained.

District Court finds breach of duty of care

The Court found that the spray damage occurred on the 6th of July 2005. Judge Williams found that all four defendants breached their duty of care to the Barclays. The judge concluded that:

...the combined effect of the magnitude of the foreseeable risk of an accident happening, the inability to control the substance once released and the forseeable potential damage are such that a reasonable person would consider it necessary to take special precautions in relation to it.

The Barclays obtained a verdict for $49,857.88 plus interest, a total of $77,187.20.

Despite the verdict being for a relatively small amount, the Bootles, MVAS and Shapley all sought leave to appeal.

Leave was granted and the appeals proceeded on a number of issues.

Were the defendants negligent in allowing the spraying to take place?

The primary judge had found that each of the defendants had breached its duty of care by allowing aerial spraying to take place in the circumstances prevailing on the day. That finding appears to have been influenced by his finding that the spraying was an activity so inherently dangerous that it meant the Bootles owed a non-delegable duty of care to the Barclays.

The judges in the Court of Appeal pointed out that a finding that an activity conducted on land is so dangerous as to attract a non-delegable duty of care on behalf of the occupier does not mean that the occupier is liable without proof of fault. The neighbour who has suffered damage must still show a want of reasonable care for which the occupier can then be held liable.

The primary judge found no fault with the conduct of the spraying and the only basis for the finding of negligence was the asserted unsuitability of the weather conditions. The Court of Appeal considered that the findings of negligence were not supported by the evidence. This disposed of the claim against the Bootles.

The judgment against MVAS and Shapley depended upon whether each was liable under the Damage by Aircraft Act.

Spraying company argues that owner of aircraft not a "trading corporation"

MVAS argued that the Act did not apply because the owner of the aircraft was not a "trading corporation". However, it was noted that the aircraft owner hired the aircraft for reward to MVAS and to others from time to time and the Court of Appeal found that a significant part of the overall activities of the aircraft were for commercial purposes. Accordingly, the owner could be regarded as a "trading corporation" in the meaning of that term in the Damage by Aircraft Act.

Pilot found to be an employee and not liable for damages

In relation to the liability of the pilot, section 7 of the Act provides:

If an employee of a person... uses an aircraft in the course of his or her employment, then, for the purposes of this Act:
  1. the employee is not taken to use the aircraft; and
  2. the employer is taken to use the aircraft.

Accordingly, it was critical to determine whether Shapley was using the aircraft in the course of his employment.

Shapley contracted his services to MVAS through a company of which he was the sole director and shareholder. The Court of Appeal noted that there was no reason why the director of a one person company cannot also be an employee of the company. The Court rejected the finding that Shapley was not an employee. Accordingly, Shapley as pilot had no liability in damages to the Barclays under the Damage by Aircraft Act.

Liability under Damage by Aircraft Act

The case is an interesting one for its analysis of the issues of liability arising under the Damage by Aircraft Act and for the analysis undertaken of the issue of negligence in relation to aerial spraying. While the decision produced good news for the pilot and for the Bootles, the result was less of a happy one for MVAS (and, presumably, its insurer) upon whom the award of damage finally rested.

Andrew Tulloch
Insurance and reinsurance
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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