Litton Legal recently successfully represented Hardy Irrigation Pty Ltd, the Plaintiff in a New South Wales District Court proceeding against the Defendants Leeton Aerial Ag Pty Ltd and JN Aviation Pty Ltd.
Hardy Irrigation Pty Ltd (Hardy) operates a large farming enterprise in Colleambally in the New South Wales Riverina area, where they grow cotton crops.
In around November 2022, Hardy engaged the Defendants to undertake aerial spraying on their cotton crops and apply the herbicide Weedmaster to control various other weeds growing in the cotton. Weedmaster is a herbicide of which the active ingredient in is glyphosate.
Hardy’s case was that after the crop dusting was carried out by the Defendants, the cotton fields that were sprayed became damaged and that damage was consistent with application of the chemical 2,4-D. The chemical 2,4-D is used to control certain other weeds in agriculture – however is extremely destructive to cotton.
Hardy’s claim was that the Defendants had contaminated the Weedmaster with 2,4-D and caused loss and damage to the Hardy’s crops. Liability was denied by the Defendants who said that Hardy had not proved that the damage was caused by them and suggested that the damage may have instead been caused by spray drift or by the Hardys in their own spraying.
His Honour Judge Robert Newlinds SC found on the balance of probabilities that the cotton was poisoned by 2,4-D and that the poising occurred uniformly across the fields that were sprayed by the Defendants.
His Honour found that the First Defendant was liable to the Plaintiff for breach of contract, given that it was contracted to spray Weedmaster for Hardy and not 2,4-D on the Hardy’s fields.
His Honour also found that both Defendants were strictly liable under the Damage by Aircraft Act (Cth), which imposes a strict liability on owners and operators of aircraft for any damage caused to any person or property by “an impact” with a “thing” “dropping” or “falling” from an aircraft.
As for the damages, His Honour was satisfied that the caused by the Defendants to Hardy’s crops amounted to $568,436.76, plus interest of $105,081.38, resulting in total damages awarded of $673,518.14 to Hardy.
The Defendants were also ordered to pay Hardy’s costs of the proceeding.
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