1. Smoke taint
1.1 Southern Properties (WA) Pty Ltd v Ex. Dir Dept of Conservation and Land Management WASC 2010
- Manjimup/Pemberton Warren Region
- 926,000 ha State Forest
- 80 years of prescribed burns
- 1961 Dwellingup fires – Royal Commission
1.2 Fire risk
- Sources – humans 90%, lightning 10%
- Fuels – vegetation, dry matter, tree type
- Weather – summer drought, prevailing winds
1.3 Management
- Government policy 200,000 ha/year to be burnt
- Fallen behind in 2003 and backlog of 452,000 ha
- Limited opportunities Karri Forest burning
1.4 Experience up to 2001
- No reports of smoke/ash affecting vineyards/wine to Department of Environment and Conservation (D.E.C.) pre 2001
- 2001 fires near Barwick vineyards
- Resultant wines rejected August 2001
1.5 Studies
- AWRI Report 2003
- Studies 2007, 2008 confirmed that smoke can contaminate vines and berries
1.6 2004 fire
- Notification by D.E.C. of burn to take place on 31 March (favourable conditions)
- Edge burn 31 March
- Core burn 1 April
- Winds changed
- Smoke covered the vineyard for 7 days
- Ash for 3 days
1.7 2006 injunction proceedings
- Notification by D.E.C. of a further burn to take place in February 2006
- Injunction sought and rejected:
- Damages adequate remedy
- Public interest
1.8 2005 proceedings
- Damages (quantum agreed)
- Injunction to restrain lighting fires until after harvest each year
- Causation not disputed
1.9 2009: the hearing
Plaintiff's case:
- Duty of care not to harm Plaintiff's vineyards
- Heightened due to the dangerous nature of the activity
1.10 Decision in 2005 proceedings
Justice Murphy:
- The fire was not the product of negligence
- Strategy/policy sanctioned by legislation
- No common law duty owed by Defendant to Plaintiff
- Defendant did have regard to Plaintiff's grapes in its planning
- Defendant had no duty of care to avoid smoke taint
- A reasonable person in the position of the Defendant would not have deferred the burn
2. Spray drift
2.1 Landsdale Pty Ltd v Moore WASC AC 2009
- Defendant a vineyard operator
- Plaintiff farms marron (freshwater crustaceans)
- Plaintiff alleges that in the periods December 2002 to March 2003 and October 2004 to March 2005 escape of chemicals sprayed on the vineyard caused marron deaths on its property
- Plaintiff claims breach of Defendant's duty of care to prevent chemical sprays escaping causes losses of $8m
- Defendant denies negligence and maintains that spraying has been done in accordance with guidelines, by a skilled operator. Did not admit that winds carried spray and says that even if it did the amount that drifted would not cause the damage alleged
- Interlocutory Procedural issue before the Court – order that a single trial be held on questions of liability and damages
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