TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – Where the plaintiff grows cotton crops on properties 20 kms south of the first defendant’s cattle properties – where the sixth and eighth defendants carried out aerial spraying of herbicides to control wattle trees on the first defendant’s cattle properties in December 2005 – where subsequent to the aerial spraying the plaintiff’s cotton crops began showing adverse symptoms including yellowing, discolouration, deformity and crinkling – where the herbicide sprayed was “off label” – where the weather conditions during the aerial spraying included high winds, low humidity and high temperatures – where the pilots logged significantly different weather conditions to the local weather stations on that day – where varying accounts exist as to the release height of the aerial spraying – where various experts tendered reports as to the possibility of spray drift causing the crop damage – whether an amount of herbicide reached the plaintiff’s properties – whether the herbicide caused damage to the plaintiff’s cotton crops – whether the sixth and eighth defendants could have reasonably foreseen that aerial spraying in the particular circumstances would cause damage to the plaintiff’s crops – whether the sixth and eighth defendants are liable in negligence for the damage caused.
Ann Lyons J
In circumstances where the plaintiff had settled their claim against all the defendants, save the 6th and 8th (aerial sprayer and another pilot) for crop damage some 20 km’s away, her Honour was required to determine apart from the usual principles of negligence, “non-delegable duty” and causation in the context of the Civil Liability Act 2003 (Qld).
Ultimately, her Honour was not satisfied with the evidence of the 6th and 8th defendants and preferred the evidence of the independent weather stations and the joint expert findings in respect to certain questions, together with the absence of any other explanation for the loss, unlike Amaca’s case.
The decision highlights the need to make the causal link to the damage suffered, together with a restatement of the general principles of negligence and “non-delegable duty” in respect of dangerous goods.
The plaintiff’s claim in negligence
 The plaintiff initially sued in both negligence and nuisance but has abandoned the claim in nuisance. It is clear that since the High Court decision in Burnie Port Authority v General Jones Pty Ltd issues, such as those raised in this case, “should be dealt with according to the ordinary principles of negligence”. The plaintiff alleges that the defendants breached the duty of care and that they have suffered loss as the result of negligence. As previously indicated, all the defendants other than the sixth and eighth defendants have settled the action.
 In order to show the defendants were negligent, the plaintiff must establish that a duty of care was owed to it and the determination of that question involves a consideration of the proximity of the relationship and whether the injury caused to the plaintiff was reasonably foreseeable.
 The issue of foreseeability was discussed by Mason J in The Council of the Shire of Wyong v Shirt:
“Notwithstanding this Australian support for a narrower version of the foreseeability doctrine as applied to breach of duty, this Court would be well advised to accept that the law upon the point was correctly stated and applied by the Judicial Committee in The ‘Wagon Mound’ (No. 2.). I say this not only because The ‘Wagon Mound’ (No.2) was a unanimous decision given on appeal from the Supreme Court of New South Wales, but also because there are sound reasons for accepting it as a correct statement of the law.
In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone  UKHL 2; (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
 The relevant guiding principles of law are set out by Balkin and Davis in Law of Torts 3rd Edition as follows:
“In Wyong Shire Council v Shirt Mason J held that, in order to determine what a reasonable person would do by way of response to a given risk, the trier of fact would need to consider ‘the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have’. The standard of care required of the reasonable man or woman placed at the time of the accident in the shoes of the defendant is an objective one and only by balancing these factors can it confidently be asserted that this standard has been met. The need for establishing this balance ostensibly remains even in situations which would formerly have attracted the rule in Rylands v Fletcher. In such circumstances, however, the High Court has now ruled that a reasonable prudent person would exercise ‘a high degree of care’ which, depending on the magnitude of the danger, might well involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’. Principles along the same lines as those stated by Mason J have now been included in legislation in some of the Australian jurisdictions, applicable generally to causes of action arising other than from the use of a motor vehicle or in the workplace. It is assumed that, when interpreting this legislation, the courts will be guided by the principles already developed by the common law over the previous century or more.”
 The Civil Liability Act 2003 has been enacted in Queensland and the relevant principles as examined by Mason J are dealt with in ss 9, 10, 11 and 12 of that Act. Once a duty is established, it must then be shown that the duty which was owed to the plaintiff was breached and the determination of that issue also involves a consideration of whether the event which gave rise to the injury was reasonably foreseeable and whether the defendants failed to do what a reasonable person would have done in the circumstances. The final issue is that the plaintiff must establish that the breach caused the injury complained of.
 It is clear that the plaintiff has the burden of proving each element of its claim and that this burden of proving causation always remains with the plaintiff. The plaintiff must also prove the nature and extent of its claimed loss.
 The defendants clearly have a duty of care which includes taking precautions to avoid spray drift which would cause damage to non-target crops and plants. The defendants’ duty is to exercise the care and caution that a reasonable applicator should use in the same or similar circumstances. The duty of an aerial applicator of herbicides was discussed in Bonic v Fieldair (Deniliquin) Pty Ltd & Ors where Davies AJ held:
“The nature of the chemicals being sprayed was such that all persons responsible for the operation, that is the four defendants, had a non delegable duty to ensure that properties in the vicinity of the Rendell land were not damaged by the spraying.”
 Therefore, the plaintiff must essentially establish that the sixth and eighth defendants by spraying the chemicals in the way they did breached their duty of care and that, because of that breach, the sixth and eighth defendants caused the chemicals to drift onto their property in a sufficient quantity to cause the damage alleged.
Were the defendants negligent?
 The duty which the defendants owed is set out in Bonic v Fieldair (Deniliquin) Pty Ltd & Ors:
“ All the defendants would have been aware that aerial spraying of the weedicide 2, 4-D was likely to cause harm to any occupier of a property in the proximity which had susceptible vines, trees and plants on it, if adequate care to avoid harm was not taken. The labels alone made that plain. It cannot be in doubt that it was known to the fourth defendants that the weedicide was a dangerous chemical and that care in its use must be taken to avoid harm.
 In Burnie Port Authority v General Jones Pty Ltd, the majority made the point that, where activities were carried out which involved the handling or storing of dangerous goods, the duty to take care would not necessarily be discharged by the employment of a competent independent contractor and that each person had a duty to ensure that reasonable care was taken. At 550, the majority said:
‘It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and “more stringent” kind, namely a “duty to ensure that reasonable care is taken”: see Kondis v State Transport Authority (1984) 154 CLR 672 at 686. Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken.
Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person: The Commonwealth v Introvigne (1982) 150 CLR 258 at 271, per Mason J.’
 In the present case, the nature of the chemicals being sprayed was such that all persons responsible for the operation, that is the four defendants, had a non-delegable duty to ensure that properties in the vicinity of the Rendell land were not damaged by the spraying.”
 I consider that the reasonable man in the position of the defendants would have foreseen that their conduct in spraying off label concentrations of herbicides in inappropriate weather conditions involved a risk of injury to the plaintiff. I am satisfied that, given the nature and combination of the chemicals being sprayed, the sixth and eighth defendants had a non-delegable duty to ensure that the susceptible cotton crops growing on the plaintiff’s properties, which they admitted they were fully aware of, were not damaged by the spraying.
 I consider that the defendants breached the duty of care they owed to the plaintiff by spraying the quantities and combinations of chemicals in the weather conditions which prevailed on 15 December 2005.
 Accordingly, whilst I am satisfied that there was a drift of an unknown quantity of chemicals from the spray event on 15 December 2005, the critical question is whether I am satisfied that there is sufficient evidence to support a finding that it is more likely than not that the actual damage to the crops was caused by the drift of these specific but unquantifiable chemicals from the spray event on 15 December 2005.
 The relevant questions which should be posed in answering such a question were recently posed in the New South Wales Court of Appeal decision in Flounders v Millar:
“16 In Bendix, Mason P emphasised (at 318) that a party who negligently exposes a plaintiff to a risk of injury will not be liable unless the plaintiff can persuade the trier of fact that it was probable that the risk came home. His Honour said that the basal principle remains: ‘[t]he law never gives judgment in favour of a plaintiff when the only finding is equally consistent with liability and non-liability’. Beazley JA held (at 339) that the onus remains on the plaintiff to prove causation on the balance of probabilities and stated: ‘[t]he onus is not discharged by establishing that a particular matter cannot be excluded as a cause of the injury’. Stein JA dissented on the issue of causation.
17 Mason P’s statement in Bendix echoed what was said in Luxton v Vines. His Honour concluded that to discharge the onus of proof in regard to causation, it was not sufficient for a plaintiff to prove that the defendant negligently exposed the plaintiff to a risk of injury. Liability depended upon the plaintiff persuading the trier of fact that it was probable that the risk came home.
18 In Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355, Beazley JA (with whom Sheller JA and Sheppard AJA agreed) followed Bendix, saying (at 362 to 363, ) that it ‘applied well-known principles of causation’ and that ‘[a] plaintiff must show more than that it is possible that injury was caused by the defendant’.
19 In E M Baldwin & Son Pty Limited v Plane & Anor (1998) 17 NSWCCR 434, Fitzgerald AJA (with whom Meagher JA and, in substance, Beazley JA agreed) referred to the relevant authorities, including those I have cited, and said (at 473, ):
‘All relevant circumstances, including an increase in the risk to the plaintiff from the defendant’s breach of duty and the character and sequence of events, must be considered in deciding whether a defendant’s breach of duty which is a possible cause of the plaintiff’s damage probably materially contributed to that damage. Circumstances are relevant for this purpose if they assist in establishing or strengthening a causal connection between the defendant’s breach of duty and the plaintiff’s damage according to expert opinion or by the application of logic, common sense or experience.’”
 Counsel for the sixth and eighth defendants provided further written submissions on 19 March 2010 regarding the High Court decision of Amaca v Ellis. That decision related to a claim in negligence brought by the estate of Mr Cotton, who had died of lung cancer after being a smoker for over 26 years and also being exposed to respirable asbestos fibres during the course of his employment for some 15 years. No scientific or medical evidence could particularise what the cause of the lung cancer was. The central question in the case related to causation and whether it was more probable than not that the defendant’s negligence (exposing Mr Cotton to asbestos) was the cause of the lung cancer. The claim ultimately failed and it was held per curiam that although exposure to asbestos may have been a cause of the cancer, it was not a probable cause.
 Counsel for the sixth and eighth defendants relied on the decision in Amaca to reinforce the importance of causation and the onus on the plaintiff in this regard. Counsel for the defendants argued that the plaintiff’s submission that the defendants were negligent was a conclusion based solely on the order of events, without ruling out other factors which could explain the connection. They submit that in the present case, as was the case in Amaca, there is insufficient evidence to support a positive finding of causal connection.
 I agree with Counsel for the plaintiff, that Amaca merely applies settled legal principles to the particular facts of that case. I do not consider that Amaca is of any particular assistance, given the particular factual circumstances operating here. Unlike the situation in Amaca, in this case there is no evidence of competing causes that could explain the crop damage.
 As the case law clearly establishes, it is not sufficient for a plaintiff to prove that the defendants negligently exposed the plaintiff to a risk of injury. It is clear that I need to be persuaded that it was probable that the risk came home.
 On the basis of the findings I have made which are set out above, I am satisfied that it is more probable than not that the damage to the plaintiff’s cotton was caused by the spray event on 15 December 2005 at Sherwood and Wallumba.
 Accordingly, I consider that the total quantifiable loss is $467,187.45.
 As I indicated during the trial, I will also now hear from Counsel in relation to the issue of the apportionment of liability under the Civil Liability Act 2003 (Qld) and the effect of the settlement by the plaintiff with the other defendants. I will hear submissions from Counsel as to the degree of responsibility which is to be shared between the sixth and eighth defendants.
Brisbane Barrister – David Cormack
 (1994) 170 CLR.
 Bonic v Fieldair (Deniliquin) Pty Ltd & Ors  NSWSC 636.
 146 CLR 40 at 47-48.
 Batiste v State of Queensland  QCA 275 at ; Civil Liability Act 2003 (Qld), s 12.
 Flounders v Millar  NSWCA 238 at .
  NSWSC 636 at .
  NSWSC 636 [23-25].
  NSWCA 238.
 (2010) 263 ALR 576.
 (2010) 263 ALR 576 at .