A Cautionary Tale - Vineyard Owner awarded more than $7million in damages for Chemical Spray Drift

6 September 2017

In a decision which was handed down in the Supreme Court of Victoria on 28 June 2017 (Riverman Orchards Pty Ltd (as Trustee for the A&C Caccaviello Family Trust) v Rodney James Hayden [2017] VSC379)[1], Justice Dixon awarded to Riverman Orchards Pty Ltd $7,248,213.76 in damages in respect of losses it suffered to its Mallee Block vineyard (Mallee Block) as a result of chemicals which drifted onto the Mallee Block from a neighbouring paddock.

In the proceedings which were filed in August 2015, the Plaintiff claimed that the chemicals which had drifted onto the Mallee Block destroyed its grape crop which it had been harvesting and selling to a local winemaker. The chemicals were identified as 2,4-D, glyphosphate and metsulphuron which are toxic to grapevines and were never applied in any form on the Mallee Block.

The Mallee Block was established by the Plaintiff in 2000. It comprises approximately 61 hectares upon which numerous grape varieties have been planted including Chardonnay, Mataro and Shiraz. It is situated to the south-east of the Defendant’s paddock where the spraying emanated from and at its closest point it is approximately 90 metres away.

At the trial which was held in Bendigo in October and November 2016, the Defendant asserted that although he admitted spraying his paddock with these chemicals at the time of the incident, he did not interfere with the Plaintiff’s ability to harvest the Mallee Block. Alternatively, the Defendant argued that if the chemicals had drifted onto the Mallee Block, it was not due to any negligence by the Defendant and any damage to the vineyard was not caused by exposure to those chemicals but by other factors – water stress from inadequate irrigation, excessive pruning, inadequate management of the vineyard and improper fertilisation.

In response, the Plaintiff asserted that:

• The Department of Primary Industries had issued a warning letter to the Defendant after they investigated the incident confirming that the Defendant had failed to follow appropriate spraying practices;

• The wind records (from the Bureau of Meteorology) showed that the wind at the time of the incident was blowing from the north and well in excess of 20 kms/h and up to 100 kms/h, and therefore were not suitable for spraying;

• The Defendant applied a heavy dose of the chemicals at the time he arranged to have his paddock sprayed in order to destroy “vetch” which had grown on the paddock in one application;

• Samples taken from the Mallee Block just after the Defendant sprayed his paddock showed residues of glyphosphate and 2,4-D;

• The winemaker that had been buying the Plaintiff’s grape crop rejected the crop outright in 2014 a few months after the spraying event and has since purchased reduced quantities of the crop due to its poorer quality which the Plaintiff has been able to harvest since the event;

• The Defendant failed to follow the recommendation of his own chemical expert as well as the warnings and recommendations on the chemical labels as regards application rates, suitable spraying conditions and appropriate spray equipment.

• All of the surrounding paddocks in the area, other than the Defendant’s were “green” and about to be harvested at the time of the incident.

His Honour accepted these assertions and held that the Defendant was negligent in the way he carried out his spraying at the time of the incident which “catastrophically” interfered with the Plaintiff’s use and enjoyment of its vineyard.

The damages awarded to the Plaintiff comprise its costs to re-establish the Mallee Block, the costs it incurred in rehabilitation and mitigation costs immediately following the incident and its losses from grape sales including its past losses and future losses for a period of 10 years until the vineyard is re-established and back to producing commercial quantities of grapes.

The highly toxic combination of chemicals used by the Defendant in this case is commonly used in the agricultural industry and is recommended by experts to destroy hard to kill weeds, including vetch crops.  This case therefore serves as a warning to farmers considering using these chemicals on their own properties to be highly vigilant when spraying and to ensure they are spraying in the “right conditions” and carefully following the recommendations of any experts retained to advise on the chemicals to use and more importantly, the warnings and instructions on the chemical labels themselves.   This includes but is not limited to applying the correct concentration of chemicals, spraying in the right wind conditions and using the appropriate equipment including the correct spray nozzles. A failure to do so could lead to a warning from or prosecution by the Department of Primary Industries as well as a hefty payout to the affected neighbour, as in this case, if Court proceedings are commenced.