A Condamine cotton grower who had already settled his crop damage lawsuit against six parties, has gone on to last week recover 100% of the assessed damages against the two remaining defendants in a case which has occupied the Supreme Court for more than three sitting weeks since August 2009.

Judgment had been given against them in June 2010 in favour of the Geldard family for the financial loss of $470,000 associated with the “off label” aerial spraying of agricultural herbicides intended for weed control on neighbouring properties but also carried, in hot gusty conditions, on to their cotton crop in December 2005.

The recalcitrant defendants – the aerial spraying company and its director/pilot –required a second trial to argue that their responsibility had to be reduced according to the proportionate liability provisions of section 31 (1) of the Civil Liability Act 2003 (“CLA”):

(1) In any proceeding involving an apportionable claim-

(a) the liability of a defendant who is a concurrent wrongdoer in relation to the claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just and equitable having regard to the extent of the defendant’s responsibility for the loss or damage; and

(b) judgment must not be given against the defendant for more than that amount in relation to the claim.

Her Honour decided that the action was an “apportionable claim” but the defendants not the plaintiff, had the onus of determining each defendant’s liability: “it is for the sixth and eighth defendants to prove that the damages should be reduced because there are concurrent wrongdoers who are liable to the plaintiff because their act or omission has caused the loss or damage”.

The defendants could not establish that the other parties against whom the claim had been settled were “concurrent wrongdoers” because no evidence was led against them and they had not given any evidence. Likewise for the second pilot who flew the aircraft on the day of the chemical contamination.

The mere pleading of the allegations – without evidence – was not enough, according to Her Honour.

With no evidence to determine any apportionment of liability, their claim for an apportionment was dismissed and the sixth & eighth defendants were ordered to pay ALL assessed damages, without regard being had to any amount already received by the plaintiff against those defendants who previously settled.

To be sure of future updates you should subscribe to eNews.

Note that this result would not have occurred had the payment to the plaintiff by the other defendants been recovered under a judgment, as opposed to a settlement: s32B CLA. If paid under a judgment, the amount previously paid would have been deducted so that the plaintiff only received 100% of damages.

In considering the practical application of this case, litigators should also consider the implications of section 6 of the Law Reform Act 1995 discussed in our September 2010 post.

GEJ & MA Geldard Pty Ltd v Mobbs & Ors (No 2) [2011] QSC 033 (07/2773) Ann Lyons J 11/03/2011