The Primary Judgment
It appears that a good deal of argument was devoted at the trial to whether the Bootles owed a non-delegable duty of care to the Barclays on the principles stated by the High Court in Burnie Port Authority v General Jones Pty Ltd  HCA 13; 179 CLR 520 (“Burnie“). Presumably for that reason, his Honour examined in some detail whether the spraying of herbicides was a sufficiently dangerous activity to warrant the imposition of a non-delegable duty of care on the occupier of the land being sprayed.
In that context, his Honour identified (at ) three significant characteristics of glyphosate when sprayed from the air:
(1) Once in the air it basically cannot be controlled
(2) It is damaging to healthy productive plant material on contact
(3) It is likely to kill healthy plant material and thus reduce production.
His Honour concluded (at ) 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 foreseeable potential damage are such that a reasonable person would consider it necessary to take special precautions in relation to it.
The primary Judge rejected a submission by Mr Bootle that he did not owe the Barclays a duty of care because BBM was the occupier of Bonna and he was merely a lessor. His Honour considered (at ) that Mr Bootle was the “hand and mind” behind the occupation and use of Bonna. Thus, for relevant purposes “Mr Bootle was BBM and BBM was Mr Bootle”. Furthermore, in his Honour’s view (at ), while BBM entered an agreement with MVAS for the latter to spray glyphosate on Bonna, the agreement came about at the “behest” of Mr Bootle. To argue that Mr Bootle did not contract with MVAS was “simplistic and ignore[d] the reality on the ground”.
The primary Judge found that all four defendants had breached their duty of care to the Barclays. He reached this conclusion because each could (and presumably should) have called off the spraying on the Pine and Taxi paddocks on Bonna on 6 July 2005. His Honour reasoned as follows:
75 What is factually true is that neither Mr Bootle nor BBM actually carried out any aerial spraying. The individual who did that was Mr Shapley. But that spraying was at the direction of Mr Bootle and BBM. Although neither Mr Bootle or BBM or MVAS had control over how the plane was flown, anyone of those entities could have directed the pilot not to engage in aerial spraying on the day in question.
76 It is important to emphasise that the prime cause of the damage occurring on the day, did not arise out of the manner in which the plane was piloted, including choice of droplet size and nozzle angle, but because the weather was unsuitable in all the circumstances due to the wind speed and direction. That damage was, in my view, prima facie preventable by either Mr Bootle or BBM or MVAS telling Mr Shapley not to spray on that day or by Mr Shapley himself deciding not to spray in the prevailing conditions…
80 … I do agree with the submission that if Mr Bootle had a duty of care [then] that was a duty of care no less nor greater than that owed by BBM.
81 I think the situation needs to be put in perspective. Here we have two farmers with significant common land boundaries engaged in the production of cereal crops to feed humans and lucerne crops to feed animals. In order to control weed infestations over large areas requires broad acre spraying of glyphosate and other herbicides with the obvious and real risk of such herbicides damaging productive crops. A balance has to be weighed between economics and the risk that if your decision to spray in conditions that result in damage to your neighbours crop, then you may be absolutely liable for any consequential damage.
82 … [T]he fault in this case is not in the methodology of the operation but in the decision to carry out the aerial spraying on the day in question, rather than ground spray or spray on another more suitable day. This is not an issue as to the skills of the pilot, the nature of the herbicide, the patterns of spraying, the control of the aircraft but simply whether or not aerial spraying should have been conducted on that day having regard to all the circumstances.
83 Having regard to the expert evidence and the risks involved in the given climatic conditions, aerial spraying should not have been carried out where there was a risk of terminal damage to a neighbours crop. Had the aerial spraying been of some benign substance, we would not be here, but what was sprayed was a substance fatal to both good plants and bad and thus in my view what was said in Burnie Port Authority is apposite.
91 There is no doubt that all the defendants were well aware of the risks attaching to the use of glyphosate both from long experience in the agricultural industry and from previous problems of overspray between the properties in 2003. Although any such damage was denied by Mr Bootle, having regard to some problem in the former good relationship between Mr Bootle and Mr Barclay, apparently an amount of $3,000 was paid for its nuisance value by Mr Bootle to Mr Barclay for what I understand to be an overspray in that year.
110 An occupier or user of farm premises cannot, once a decision is made to aerial spray a noxious substance, simply pass over responsibility to either or both the pilot or the aircraft company. Whilst the flying of an aeroplane is a specialised activity that would be beyond the control of someone like Mr Bootle, what is to be sprayed, where and when is not. I would expect that a broad acre farmer would have developed experience of the types of conditions likely to generally impact on aerial spraying activity. In Mr Bootle’s case, he was aware that his neighbour had emergent crops which were more likely to be adversely affected by glyphosate than more mature plants. Mr Bootle could have directed MVAS not to engage in spraying on that day, or used ground spray equipment instead, as he was and had already been doing. Because he was 2 weeks behind and needed to have those paddocks treated, he decided on aerial spraying, knowing the nature and quality of the extra risk involved as apposed to ground spraying, which is also not without risk.
112 In the circumstances I am satisfied, as per Burnie, that liability exists in the first and second defendants as it does for the third and fourth defendants. I am satisfied that each is jointly and severally liable for damage caused by the aerial spraying in terms of the Civil Liability Act and the common law. (Emphasis added.)
As I have noted, the primary Judge found that in the circumstances prevailing on 6 July 2005, each of the defendants breached its or his duty of care by allowing aerial spraying to take place on Bonna (or in Mr Shapley’s case, by carrying out the spraying (at -)). The finding of breach of duty appears to have been influenced, if not dictated by the finding that aerial spraying of glyphosate on Bonna was an activity so inherently dangerous that it attracted the principle laid down in Burnie. His Honour seems to have regarded the latter finding as sufficient of itself to justify his conclusion that each defendant breached the duty of care owed to the Barclays. That reading of the judgment is supported by the reference (at ) to absolute liability.
If this is a correct understanding of the judgment, as I think it is, the primary Judge was in error. Assuming aerial spraying of glyphosate on Bonna to be a hazardous activity in the Burnie sense, this would mean that BBM as the occupier of Bonna (and possibly Mr Bootle as the lessor) owed a non-delegable duty of care to the Barclays. Such a duty required BBM to ensure that reasonable care was exercised in the use of aerial spray on Bonna so as to avoid inflicting damage on susceptible crops on Kilbirnie. BBM could not comply with its duty of care simply by engaging an ostensibly competent contractor to perform the aerial spraying: Burnie, at 550-552, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. Consequently, BBM would be liable to the Barclays if the contractor engaged by it (whether MVAS, Mr Shapley or both) failed to exercise reasonable care when undertaking aerial spraying on Bonna so as to prevent damage to the susceptible crops growing on Kilbirnie.
The finding that an activity conducted on land is so dangerous as to attract a non-delegable duty of care on the part of the occupier (or the “person in control of the premises” (Burnie, at 551)) does not mean that the occupier is liable without proof of fault. A neighbour who has suffered damage as a result of the dangerous activity must still show a want of reasonable care for which the occupier can be held liable. The dangerous nature of the activity may require a reasonably prudent person to exercise a higher, perhaps much higher, degree of care (Burnie, at 554). But a plaintiff claiming damages must still prove that the occupier has breached the non-delegable duty of care: Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd  QCA 315, at , per Fraser JA (with whom White JA and Mullins J agreed).
David Cormack – Brisbane Barrister