Sherry v Dunwoody[1998] QDC 235

BETWEEN

AND

AND

REASONS FOR JUDGMENT - WOLFE D.C.J.

Delivered the 7th day of August, 1998

In this action the plaintiffs claim damages, including exemplary damages, of $100,000 each for the intentional infliction of nervous shock, trespass to the person, nuisance by noise and harassment, and trespass to land. The plaintiffs also claim injunctions to restrain the defendant from entering their land or carrying out his cane farming business so as to cause nuisance to them.

The first plaintiff, Mr Sherry, and the defendant, Mr Dunwoody, are neighbouring cane farmers in the Seaforth district, north of Mackay. The matters complained of follow the sale and lease of the Sherrys' cane paddocks to Mr Dunwoody in 1989. This action was instituted in 1995 and the plaintiffs' claims are founded upon incidents which allegedly occurred during the years 1991 to 1997. They mostly relate to farming activities carried out by Mr Dunwoody in comparative proximity to the Sherrys' residence which was surrounded by the cane paddocks which they had sold or leased in early 1989 to Mr Dunwoody.

By December 1990 relations between the parties had deteriorated from excellent to “cool” to “quite frozen”. By August 1991 their relationship had broken down completely. In October 1992 there was an incident on the Sherrys' land involving collisions between Mr Dunwoody's tractor and the Sherrys' utility. The Sherrys claimed their health and marital problems emanate from this incident. When this matter came on for trial there has been considerable litigation involving the parties to this action. In 1992 the Sherrys issued a writ out of the Supreme Court in Mackay claiming possession of the land they had leased to Mr Dunwoody and the following year Mr Dunwoody was found guilty by a District Court jury of a criminal offence relating to the October 1992 incident. The Supreme Court action was dismissed “on a technicality” in 1994 and the Sherrys were ordered to pay Mr Dunwoody's taxed costs of approximately $34,000. On 13 September 1995, the plaint in this action was filed and on 20 November 1996 the Sherrys issued another writ out of the Supreme Court claiming damage to the reversion, although this writ was not served until November 1997.

The years following the sale and lease of the Sherrys' land brought many other complaints about Mr Dunwoody's activities. The Sherrys complained to the police, the local mill, the Pioneer Shire Council, the Ombudsman, and the Department of Primary Industries and its Minister. Sergeant Daniel Graham of the Marian Police Station gave evidence of their numerous complaints, not all of which, he said, were trivial.

However Sergeant Graham said he had also received complaints about Mr Dunwoody from others in the district, and that police were often involved in disputes involving Mr Dunwoody and persons other than the Sherrys.

The Claims

The plaintiffs (Mr and Mrs Sherry) rely on three groups of incidents in formulating their claims. These are:

Of the 18 particular incidents of nuisance pleaded, there are six in 1993. Two of these involve rifle shots, the other four concern tractor or harvester lights and noise late at night or in the early hours of the morning. There were said to be five such incidents in August 1994, one in October 1994 and two in November 1994 (one of which was a midnight cane fire), three in 1995 and one in 1996.

The Parties

Although both men are the sons of Mackay cane farmers (Mr Sherry was born in Mackay in 1941 and Mr Dunwoody in Brisbane in 1943), their lifestyles and educational background differ considerably. Mr Sherry left school at about 14, after passing the scholarship examination. He worked for and with his parents and later with his brothers on the family cane farms. Mr and Mrs Sherry were married in about 1965. He was then 24 and she was 19. Mrs Sherry came to Australia as a child from Malta and grew up in Mackay. She left school after the scholarship examination when she was about 15 and worked as a hospital domestic until her marriage. They have 6 daughters. Both were brought up as Catholics and are devout members of their church. In 1989 the family was living on their farm at Miers Road, Seaforth. Both Sherrys were involved in community activities and Mr Sherry in the habit of pursuing his over-night fishing past time on regular occasions.

Mr Dunwoody's family moved to their Seaforth farm in 1946, where first they grew pawpaws, then small crops, turning to sugar cane in 1963. However in 1954 Mr Dunwoody left Mackay for boarding school. He then studied horticulture and agricultural science at tertiary level for many years. He obtained a diploma in 1961 from the Queensland Agricultural College, Gatton, then a Bachelor of Agricultural Science with Honours in 1965 from the University of Queensland, before leaving for the United States where he obtained a Masters degree in Science in entomology from the Virginia Polytechnic Institute. Between 1969 and 1972 he was at Illinois, studying towards a Ph.D., which he did not obtain. He remained in the United States working at universities and for various groups involved in toxicity studies and environmental concerns. After 20 years in the United States he returned to the Seaforth area, having decided to help his parents and take over their farm with the objective of developing it into a larger form which would be economically sustainable in the future. Mr Dunwoody is not married and lives alone. His approach to cane farming is more contemporary than Mr Sherry's. He also works as a private consultant specialising in environmental impact statements.

Mr Dunwoody and Mr Sherry first met soon after Mr Dunwoody's return to Australia in about 1986. The Sherrys' farm then contained almost 120 hectares, and Mr Dunwoody's about 70 hectares. They had a casual relationship based upon their being neighbours, attending farmers' meetings and having a common interest in cane farming. Undoubtedly they discussed cane farming and probably Mr Dunwoody sought Mr Sherry's opinions with respect to aspects of farming. Whether or not he needed that information, Mr Sherry certainly felt that Mr Dunwoody was actively seeking his advice about cane farming. During 1987 Mr Sherry had also worked his backhoe for Mr Dunwoody when he needed some rocks cleared from some land.

Mr Dunwoody and his family were, according to his evidence, pioneers with the Farleigh Mill in contour cane farming. Mr Dunwoody's implementation of contour banks on the cane lands leased from the Sherrys appears to have been the trigger for the break-down in his relationship with the Sherrys. Mr Sherry and Mr Dunwoody had discussed contour cane farming prior to the Sherrys' leasing part of their cane lands to Mr Dunwoody in 1989. I accept that during those discussions Mr Dunwoody led Mr Sherry to believe that Mr Dunwoody had experienced problems with contour farming and that Mr Dunwoody would not employ that method on the leased land.

The Farms - 1989

In early 1989 the Sherrys' farm of about 120 hectares (which is described as Lots 1, 2 and 3) was used for cane farming and grazing cattle. There was also an orchard on the land. The farm is situated along Miers Road, Seaforth. Lots 1 and 2 abut the southern side of Miers Road, and Lot 3 is opposite those blocks, on the northern side of Miers Road. The parts of Lots 1, 2 and 3 which were under assignment then produced about 3,500 tonnes of cane per year. Miers Road also leads, in an easterly direction, to the Dunwoody farm, part of which is adjacent to the Sherrys' Lot 3. In a westerly direction from the Sherrys' farm (Lots 1, 2 and 3), Miers Road crosses Seaforth Creek and then intersects at a T junction with the Yakapari Seaforth Road which travels in a north/south direction. From the western boundary of Lot 1 and stretching west to the Yakapari Seaforth Road is a large block of about 120 hectares known as Lot 300. It fronts the southern side of Miers Road and in 1989 was owned by a Mr Daniels. Mr Dunwoody was to purchase an interest in this block in February 1995. Opposite Lot 300, on the northern side of Miers Road and east of the Yakapari Seaforth Road, are a number of blocks of land which, in 1989, were owned or farmed by others. The Sherrys were to purchase one of those blocks, Lot 6, in about 1991. Lot 6 is a small triangular portion bounded by the Yakapari Seaforth Road to the west and Miers Road to the south. Exhibit 1, a map of the area, shows the position of the various blocks and the roads.

In 1989, Dunwoody's farm consisted of four or five relatively small blocks totalling about 70 hectares. This farm is on the northern side of Miers Road and to the east of the Sherrys' Lot 3, and shares a common boundary with Lot 3. At that time about 40 hectares or 100 acres of the farm grew assigned cane producing about 2,500 tonnes per year.

The Sale and Lease of the Sherrys' Cane Lands

The 1989 season saw the implementation of a number of changes in cane farming and milling. The Farleigh Mill, which crushes the Seaforth cane and is operated by a farmers' co-operative decided to introduce continuous harvesting and milling. This involved placing some farmers, with their agreement, on a six day roster, and later an early roster for the pick up of empty bins and the collection of filled bins so that the Mill could process the cane 24 hours a day seven days a week during the harvesting season. Mr Sherry decided to scale back his farming activities in about 1989. The implementation of the new system up was probably one of the reasons why Mr Sherry decided to quit cane farming.

Mr Dunwoody said Mr Sherry told him in late 1988 or early 1989 that he had decided to get out of farming and to subdivide the farm into three Lots, keeping Lot 2 for himself Ultimately, in early 1989, the Sherrys sold Lot 1, an area of about 47 hectares, to Mr Dunwoody for approximately $201,000. Mr Dunwoody would have been hard pressed to purchase all the Sherrys' cane land on Lot 3 and to assist Mr Dunwoody with his cash flow, Mr Sherry suggested that he could lease it and perhaps buy it later from him. In May 1989 the Sherrys agreed to lease about 13 hectares of cane lands to Mr Dunwoody. The parties entered a lease agreement dated 30 May 1989 providing for a term of at least 5 years. It was said to be determinable on two years notice. The leased land consisted of the cane lands on part of Lot 2 and part of Lot 3. The Sherrys also sold to Mr Dunwoody, for about $40,000, standing pine trees and an irrigation system which provided irrigation to Lot 1 and to the cane land on Lot 2. They also agreed that during the 1989 season Mr Dunwoody would harvest for Mr Sherry the cane then growing on the leased land for about $50 per ton.

The leased cane lands on Lot 3 abut the northern side of Miers Road opposite the Sherrys' residence. The balance of Lot 3, the northern part, was kept by the Sherrys for grazing cattle. The leased part of Lot 2 consisted of the eastern portion of that block. The Sherrys retained the western portion of Lot 2 (“the house block”) on which is situated their residence, sheds and a shade house. The Sherry's house faces Miers Road to the north and is set back about 70 metres from the road. Behind the home block, about 65 metres to the south of the house, a cane railway line runs through a cutting on Lot 1. In an easterly direction from that cutting, the train line runs towards the Farleigh Mill and in a westerly direction to the Belmunda siding which is on Lot 300, east of the Seaforth Creek. In 1989 cane harvested from the Sherry and Dunwoody farms was collected from the Belmunda siding. The line travels north west from the Belmunda siding across Miers Road to the Hillsborough siding which is near the Yakapari Seaforth Road and northwest of Lot 6. A map of the area (Exhibit 67) shows the position of both sidings.

The leased canelands on Lot 2, like the house block, front Miers Road. Lot 1 (which Mr Dunwoody purchased) also has a frontage along Miers Road. Lot 1 lies to the west and to the south of the house block and the leased land on Lot 2. A map of this area, exhibit 51, shows how the cane paddocks and the house are set out.

Access to the Sherry residence and the sheds on the home block was by way of a roadway near the western boundary of the home block. Prior to the sale and lease, Mr Sherry had also used that roadway for access to those parts of Lot 1 which are to the west and the south of the house block. Soon after Mr Dunwoody took possession of the Sherrys' cane fields he built another road for access from Miers Road across the railway line to Lot 1. This road (“the Farm Road”) is roughly parallel to the western boundary of the house block and the access road on the home block. The Farm Road travels from Miers Road close by the boundary between Lot 1 and the home block, and crosses the cane railway line south of Lot 2.

Breakdown of the Relationship 1989

As a result of the Sherrys' sale and lease of their cane land, the land farmed by Mr Dunwoody extended within about 90, 80, 45 and 30 metres to the north, south, east and west of the Sherrys home.

Both plaintiffs gave evidence of the distress they suffered in the years after Mr Dunwoody took over their cane fields. Both broke down while giving evidence, although Mr Sherry appeared to be far more affected while recounting events which he had found particularly distressful, Mrs Sherry reacting more angrily to questions impinging on those events or her relationship with her husband. On the other hand, Mr Dunwoody was cool and controlled in giving his evidence. He apologised when required to recount conversations containing robust language.

The first indication that the relationship might not proceed smoothly came at the end of the 1989 crushing season when the mill announced it would pay a crushing allowance as some compensation for the continuous harvesting. This amounted to about $140 in respect of all cane which Mr Dunwoody had harvested for Mr Sherry. Mr Dunwoody thought he was entitled to this amount and asked Mr Sherry for it because Mr Dunwoody believed he had been the person who had incurred the additional costs related to the continuous harvesting and crushing. Mr Sherry refused, saying they had agreed on the appropriate rate. At the trial Mr Dunwoody said he would not jeopardise a good working relationship over this and that he did not argue for it further.

Mr Dunwoody said he felt that rows of cane planted up and down some hilly areas on Lot 3 were leading to erosion and that the solution would be to plant the cane in contoured rows and build a drain below these rows to reduce bogginess. Mr Dunwoody said he spoke to soil conservation officers of the Mackay branch of the Department of Primary Industries in August and September 1989 and they gave him some soil contouring advice. Mr Dunwoody said Mr Sherry provided his back hoe to dig a trench on Lot 3 after Mr Dunwoody said he wanted to insert agricultural tile to eliminate the boggy area. Mr Dunwoody said he began contouring work on Lot 3, and that by about the end of September 1989 he had planted cane on the contoured part of Lot 3. He said he spoke to Mr Sherry in December 1989 and told him he was going to turn the rows sideways and that there had been no objection. This is unlikely, having regard to the conversation that took place between them in December 1990.

1990

DPI officers had surveyed waterways on the leased land on Lot 3 in about August and September 1989. They effected a further survey on that land in January 1990 and DPI files indicate that DPI officers carried out survey works on about 5 occasions between September 1989 and August 1990. The department kept two sets of files on the leased land, one under Mr Sherry's name, the other under Mr Dunwoody's. The files however contain no express reference to Lot 3 being leased until 4 September 1990. Lothar-Hans Teske gave evidence of the surveys and inspections carried out by the DPI on the leased land. Mr Teske had known Mr Sherry since about 1966 when Mr Teske was a fertilizer sales representative. He was with the DPI as an advisor in soil conservation from 1981 until he retired in 1993, and had known Mr Dunwoody since about 1986. Mr Teske's evidence was not satisfactory in many respects and one must conclude from other evidence and what is contained in those files, firstly that Mr Dunwoody did not ensure that DPI officers understood, in 1989 and probably early 1990, that the land in respect of which Mr Dunwoody sought advice was land which he was leasing from the Sherrys and did not own; and secondly, that Mr Teske was not involved in any surveys of the leased land until December 1990. Although Mr Teske referred in his evidence to the department's policy allowing DPI officers advising on soil conservation to work with the person managing the land, whether he be owner, sharefarmer or lessee, it was clear from evidence of the Minister's letters to Mr Dunwoody that it was normal practice for departmental staff, when preparing a soil conservation plan of any property, to consult with the property owner, being the person with the responsibility for long term management of the property.

Mr Teske of the DPI inspected the land on 28 November 1990, after he received Mr Sherry's first complaint about the contouring on 26 November 1990. By then Mr Dunwoody had effected contouring to other parts of the land and had just begun contouring in the northeast corner of Lot 3. It was at this meeting that Mr Sherry learned that Mr Dunwoody had not clearly informed the DPI officers that they were being asked to contour leased land when Mr Dunwoody had originally sought their advice. Mr Teske knew that Mr Sherry had not had problems with erosion on Lot 3 prior to November 1990. Mr Teske probably told Mr Sherry the cane lands on Lot 3 did not need contouring. Mr Teske indicated to Mr Sherry that the DPI would have first sought Mr Sherry's consent before advising on the contouring, if the DPI officers had realised Mr Dunwoody did not own the land. Mr Sherry told him the contour banks would cause erosion and asked Mr Teske to stop the contouring immediately, to replace the waterway as it had been and to stop ripping up the headlands. By this time Mr Dunwoody knew from DPI officers and the Council that the Sherrys had complained to the DPI about the contouring of the watercourses and that they had complained to the Council that the culvert Mr Dunwoody had built from Miers Road to the western end of Lot 3 was too steep for the Sherrys' utility.

On 4 December 1990 Mr Teske re-surveyed one of the contour banks which had been built by Mr Dunwoody. A few days later Mr Dunwoody spoke to Mr Sherry in a fairly offensive manner. It is useful to recount this conversation having regard to Mr Dunwoody's evidence at the trial that Mr Sherry had not objected in 1989 when he told him he was going to turn the rows sideways and that it was not until August 1991 that there he had the first indication of a problem with Mr Sherry in respect of the common headland on Lot 2 between the eastern side of the home block and the leased land on Lot 2.

On the morning of 9 December 1990, while Mr Dunwoody was seated on his tractor on the Farm Road, Mr Sherry told Mr Dunwoody that he was unhappy with what Mr Dunwoody was doing on the leased land. Mr Dunwoody asked him what was wrong, and Mr Sherry said:

Mr Dunwoody said:

Mr Sherry said:

Mr Dunwoody said:

Mr Sherry said:

Mr Dunwoody said:

When Mr Sherry agreed that he had seen the Department of Primary Industries about the matter, Mr Dunwoody said, “That's right. That's right. Now if you've got something to say to me, you have the guts to say to me directly.” Mr Sherry said: “I have.” Mr Dunwoody said: “Don't you go to everybody else. You've been to everybody else around this district for the past month.” Mr Sherry asked him: “What did I say?” Mr Dunwoody said:

Later in the conversation, Mr Dunwoody went on:

Mr Sherry said: “All right.” Mr Dunwoody then said:

Mr Sherry told him that the Department of Primary Industries had been under the impression that Mr Dunwoody had owned the land, to which Mr Dunwoody said,

Mr Sherry complained that a headland had been ripped up, and Mr Dunwoody said:

When Mr Sherry told him he had a witness and a film of it, Mr Dunwoody said:

The Sherrys' solicitors had already written to Mr Dunwoody on 7 December 1990. At the trial Mr Dunwoody suggested that he realised the relationship with the Sherrys had soured when he received this letter. The solicitors had advised Mr Dunwoody that the Sherrys had farmed that land for about 12 years without any erosion or wash problems and of the Sherrys' concerns that the contour banks had altered water flow and that erosion would become a serious problem. They suggested Mr Dunwoody had not complied with all DPI requirements and that the DPI had been led to believe that he was the owner and not simply the lessee, that he had specifically advised the Sherrys that he would not contour the land unless he first sought their permission and that the failure to seek their consent constituted a breach of the lease. Mr Dunwoody's response to the solicitors in his letters dated 12 December 1990 and 5 January 1991 (Exhibit 73 and 74) encapsulate Mr Dunwoody's attitude to Mr Sherry's complaints. Others had taken some of the Sherrys' complaints seriously and the mill had acted upon one of them. Mr Dunwoody had placed soil and pengola grass on Lot 2 hear the railway line. Mr Sherry complained to the Farleigh Mill, and in December 1990 the mill removed the soil and grass placed there by Mr Dunwoody. It was clear that at that stage the Sherrys had been accommodating Mr Dunwoody in some respects. During the 1990 harvesting season Mr Dunwoody had crossed the boundary when he used the common headland between the home block and the Lot 2 leased land to turn the harvester, tractor and haul-out units. There was no complaint made about this.

1991

It is little wonder that Mr Sherry had understood that the DPI officers agreed with him that the contouring caused erosion, or why he later suspected that the DPI officers were “on Dunwoody's side”. On about 23 or 24 December 1990 the Seaforth district suffered a deluge when Cyclone Joy hit the district, and on 9 January 1991 Mr Teske again inspected the leased land. By that time, Mr Teske was fearful of being involved in litigation between the parties, and some months later his superior officers were to direct him to desist from carrying out survey works on the leased land without Mr Sherry's consent. According to the DPI's Sherry files, Mr Teske told Mr Sherry on 9 January 1991 that “damage on his land is not as severe as witnessed in other paddocks in that area”. The DPI's Dunwoody file notes that this inspection revealed “damage in waterway and diversion bank overlapped. Our opinion that contourage dramatically reduced the erosion damage as little damage to cane rows.” At the trial, Mr Teske said he found some erosion in the contoured paddock but there was less erosion there than was anywhere else and that the erosion was similar to that suffered by comparable land in the district. He said that the erosion damage within the waterway could be repaired easily, compared with erosion within a paddock when the landholder would have to wait four or five years to repair it. However, the soil eroded from the contoured land was deposited on the lower part of the leased land and, as Mr Teske conceded, there had been no erosion on the parts that had not been contoured.

In February 1991, the Sherrys served a notice to remedy breach of covenant in respect of an insurance provision in the lease. In April 1991, Mr Sherry complained to the Farleigh Mill that Mr Dunwoody was growing cane on the road reserve on Miers Road near Lot 3. This part was not covered by a road licence. Mr Sherry himself had farmed that part and had told Mr Sherry before the lease was entered into that Mr Dunwoody would be able to grow cane wherever Mr Sherry was growing it, include this area beside the road. Mr Dunwoody did not know whether or not it was covered by a road licence. As a result of the complaint Mr Dunwoody had to wait some months for payment for the cane grown on the reserve but he then ascertained that it was covered by a roaming licence, and was permitted to grow it there. Mr Sherry admitted he had reported the matter to the mill out of vindictiveness. The DPI Dunwoody file records there were further re-survey works in May 1991 and that on 25 June 1991 when officers inspected repair work on a waterway, they had asked that the contour bank be increased in size. In June 1991 another notice to remedy breach of covenant was served on Mr Dunwoody. In July, the Sherrys complained to the DPI about Dunwoody's having sprayed their fruit frees which he denied having done. Meanwhile in June or July Mr Dunwoody had again used the common headland between the home block and the leased land on Lot 2 while cultivating and reshaping the paddock. There was no complaint. The Sherrys' solicitors complained in August 1991 about the contouring, his spraying and the culvert on Miers Road east of the Sherrys' residence which Mr Dunwoody had graded. The Sherrys too had complained that August to the local Council about the culvert.

It seems that during 1991 the Sherrys noticed that Mr Dunwoody was driving around the farm late at night for short periods. They were disturbed by Mr Dunwoody occasionally driving his tractor around Miers Road and the Farm Road sometimes coming onto his land nearby and working for 15 minutes or so before driving out. Mr Sherry's response to their being woken three nights in a row was to “pretend we didn't hear him”.

However, the Sherrys were also annoyed by tractors turning or cars parking on the home block on the strip between the Farm Road and their access roadway. The boundary between Lot 1 and the home block passes down the middle of this strip and is marked by survey pegs. Tractors working on the eastern portion of Lot 1 may have turned across the boundary and vehicles had certainly parked across it. Mr Sherry, who had complained to one of Mr Dunwoody's employees about this, had observed tyre marks made by cane harvesters and haulout tractors and bin trailers on the home block leading to the rows of cane growing on Lot 1 near the Farm Road. These tyre marks extended two to three metres on to the home block. On 17 August 1991, the Sherrys placed a public notice in the Mackay Daily Mercury newspaper, advising that any person found trespassing on Lot 2 or Lot 3 would be prosecuted.

The trespass claims

3. (a)
   22 August 1991 (para. 65)

Soon after the public notice was published, the Sherrys erected a sign, “Private Property. Trespassers will be prosecuted” on their home block. It was about one metre from their western boundary on the common headland between the Farm Road and the home block access road. On 22 August 1991 the Sherrys drove to town, and as they left the home block they saw Mr Dunwoody working the harvester on Lot 1, with a haulout tractor and trailer working in conjunction with him. The Sherrys returned home to find the sign bent over. There were two different types of tyre marks in the vicinity of the sign coming from and returning to the cane on Lot 1, but there were no further marks of such kind at any other point. They called the police. Mr Dunwoody denied bending the sign, or seeing anybody knock it over, and claimed he did not authorise anyone to knock it over, or knew who had done it, or that he had seen the notice published in the Mackay Daily Mercury. However he conceded he had seen the sign, that there was no need for the cane harvester to cross the boundary, and if the cane harvester or the haulout tractor had crossed the boundary, that would have been careless. I am satisfied that Mr Dunwoody drove the harvester across the boundary quite deliberately and he allowed his agent or employee working the tractor to do likewise and so by deliberate or reckless driving one or other of them knocked over the sign.

3. (b)
   30 August 1991 to 5 September 1991 (paras. 66 and 67)

Towards the end of August 1991, Mr Dunwoody was irrigating on the leased land on Lot 2, to the east of the house block. The boundary between the house block and the leased land was clearly delineated by the home block being mowed to the boundary and by white posts about four feet high at either end of the boundary. Mr Dunwoody worked the anchor tractor near the boundary for some days prior to Friday 30 August 1991. That night he moved it over the boundary leaving about two-thirds of its length over the home block. The following day Mr Sherry reported the matter to the police who came out and saw the tractor on the Sherrys' home block. A police officer spoke to Mr Dunwoody later that day, but he did not move the anchor tractor and so Mr Sherry rang the police again. The anchor tractor remained where it was. Originally Mr Dunwoody maintained that he had an implied licence to enter across the eastern boundary of the home block, but by the end of the trial he conceded that from at least the time when the police officer first spoke to him about the matter, he had no such licence. On 4 September 1991 the Sherrys' solicitors wrote to him complaining about the tractor and warning of litigation. The police contacted Mr Dunwoody again and he moved the tractor on 5 September, 1991.

On about 6 September Mr Sherry erected a star picket fence along the boundary. Mr Dunwoody claimed that as he was driving along Miers Road that morning he saw Mr Sherry and the newly erected fence, and stopped and called out “Let's talk about this” as Mr Sherry walked away. He said he wanted to stop the silliness and was frustrated. However, I prefer Mr Sherry's evidence that when Mr Dunwoody pulled up he came over to the fence post at the northern end of the boundary and began yelling to Mr Sherry to pull the fence down and that if he did not pull it down he, Mr Dunwoody, would pull it down. As he reached the fence, Mr Dunwoody put a hand on the post and one of his feet on the wire, pushing it down to the ground.

On the following day, 7 September 1991, Mr Dunwoody rang the Sherrys' home and spoke to their daughter and told her he was going to pull the fence down in order to move the irrigator. He then phoned the police advising them of what he intended to do. However the police officer told him not to touch the fence but to pull the irrigator backwards.

On 10 September Mr Dunwoody's solicitors wrote to the Sherrys' solicitors advising that the “offending” tractor had been moved, and suggesting the solicitors meet with their clients to discuss negotiating a settlement. It was clear from other evidence that as early as December 1990 Mr Dunwoody would not brook any criticism of his farming methods and it seems that his solicitors' offer to discuss the matter was made without the benefit of having seen Mr Dunwoody's letters of January 1991 to Mr Sherry's solicitors with his allegations of their “absence of legal due diligence”, of “knowingly” causing him distress, “standover tactics” and “to put up or shut up”.

3. (c)
   11 September 1991 (para. 68)

On 11 September 1991 Mr Dunwoody and his workers pulled up part of the fence in order to move the irrigator. This involved the removal and replacement of one star picket only. It was done deliberately and while Mr Dunwoody was aware that Mrs Sherry was watching. She videotaped the incident. He claimed he had done no damage to the fence, which I accept. He suggested that it was the only practicable way to move the irrigator. I do not accept this. There was clear evidence of Mr Dunwoody's intentional invasion of the Sherrys' home block.

The defendant is liable for the three trespasses committed on 22 August, 30 August to 5 September and on 11 September 1991. The plaintiffs are then entitled to an award of damages for these trespasses. In Plenty v. Dillon (1990-91) 171 CLR 635 Mason CJ and Brennan and Toohey JJ said at 645 that:

At 654-5, Gaudron and McHugh JJ said of police officers who entered on to a farm in order to serve a summons on the farmer's daughter:

3. (d)
   Sunday night, 14 August 1994 (para 51)

There was a further trespass of the home block three years later in the evening of 14 August 1994. It is convenient to deal with this here. The trespass occurred when a tractor drove along the eastern side of the home block between its eastern boundary and a row of the Sherrys' fruit trees. Mr Dunwoody had been burning cane on Lot 1 south-east of the home block. Mrs. Sherry saw the tractor with its headlights on drive along the home block near the eastern boundary and then turn around on the home block behind their greenhouse and a shed before driving to the Farm Road and across the tram line south on to Lot 1. She was extremely upset, which is explicable having regard to the events which occurred between the removal of the irrigator in September 1991 and this trespass in August 1994. Mr Sherry investigated with a torch and saw tractor tyre and trailer tyre marks, but did not tell his wife of this as he did not wish to alarm her further. He videotaped the marks the following morning. The tractor had taken the longest possible route to Lot 1. Mr Dunwoody agreed that the tractor driven from Miers Road on to the leased land on Lot 2 on Sunday night, 14 August 1994, was most likely his tractor and connected with his activities. He denied the trespass, asserting that none of his employees was authorised to drive on the Sherrys' land. However there was no explanation proffered as to the likelihood of a tractor travelling from the Dunwoody's farm reaching the Farm Road by that route nor was there evidence from which one might reasonably conclude that one of Mr Dunwoody's employees could easily have mistaken the route to Lot 1. By then the Farm Road had been used for some years to gain access to the southern part of Lot 1 and it would have been obvious to anyone that the Sherrys were then at home. I am satisfied that the tractor was one of Dunwoody's driven by Mr Dunwoody or one of his employees. There is no basis for concluding that the driver, whether Mr Dunwoody or his employee, was mistaken or even careless in driving onto the home block. It therefore amounts to a deliberate invasion of the Sherrys' home block.

Damages for trespass to land

Each of the four trespasses proved involved a direct invasion of the Sherrys' home block. Mr Dunwoody had no actual or implied licence or any other right to come onto the home block, and the Sherrys had made it plain through their actions that they would not permit his or his agents' entry onto the land. The bending or knocking over of sign erected on the Sherrys' home block adjacent to the Farm Road on 22 August 1991 indicates recklessness. There is no question on two later occasions, firstly from 30 August to 5 September 1991, and secondly, on 11 September 1991, there was deliberate trespass by the defendant of the plaintiffs' land. These involved parking the anchor tractor over Lot 1 and the temporary dislocation of the fence to move the irrigator and the defendant's driving the tractor on to Lot 1 on 11 September 1991. The plaintiffs also proved that the defendant or his employee drove the tractor through Lot 1 near the Sherrys fruit trees and shed, on 14 August 1994. No permanent physical damage to the land was caused by any of these trespasses. The Sherrys did not attempt to show they had sustained any actual loss in respect of the land but they are entitled to recover damages for these trespasses. It is not necessary to show there was my actual damage, and the trifling nature of the trespass is no defence, see Clerk & Lindsell on Torts, 1989, 16^th ed., at paras 23-07 and 24-41 where an explanation for this is given:

Again, it does not appear to me that Hackshaw v Shaw (or for that matter, Northern Territory v Mengel) provides support for the defendant's contention that trespass is no longer to be regarded as a tort of strict liability. The law concerning trespass to land is designed to protect those who are in lawful possession of their land from, at the very least, the indignity of unauthorised physical intrusion -- see, e.g. Greig v Greig [1966] VR 376. An indication as to the amount of damages payable appears in Plenty v. Dillon 171 CLR 635 at 655, where Gaudron and McHugh JJ said:

The plaintiffs succeed in their claims relating to the home block. I award them $10,000 for damages for the four trespasses in 1991 and 1994.

1992

During the early part of 1992 the relationship soured further. This was inevitable. As the evidence emerged it became clear that the parties could not accommodate each other, given their diametrically opposed ways of dealing with conflict or perceived wrongs. In early 1992 Mr Dunwoody won the Central Queensland Primary Producers Landcare award. Mr Sherry was aggrieved. He felt that Mr Dunwoody had claimed he had kept the guinea grass on Lot 3 from seeding into the cane by allowing his cattle to graze there, but the cows eating the guinea grass were Mr Sherry's grazing on Mr Sherry's land. And Mr Sherry so advised the judges who came out later to the property to evaluate Mr Dunwoody's farming practices for the State award.

Mr Dunwoody's driving or working around the lands near their residence late at night was, as Mr Sherry said, “starting to get to us”.

In June 1992 the Sherrys complained again to the Council about Mr Dunwoody levelling soil at the culvert on Miers Road, there was an attempt to prevent DPI officers entering the leased land and they served another notice to determine the lease on Mr Dunwoody. Their solicitors complained to the DPI about the land care inspection. In August the Sherrys served another notice claiming breach of the lease, and on 1 September 1992 they issued a writ for possession of the leased land out of the Supreme Court in Mackay. They complained to the Ombudsman about the Council's failing to take action about the head walls on the culvert, and again to the Council. They complained to the police about Mr Dunwoody's filling the potholes on Miers Road. They complained to the Farleigh Mill to stop the mill accepting the cane grown by Mr Dunwoody which was not covered by a road licence.

30 October 1992 (para. 7) - Trespass to the person and intentional infliction of harm

The Sherrys described this incident as the ramming incident. It involved a collision between Mr Sherry's utility and Mr Dunwoody's tractor. As a result of the incident Mr Dunwoody was later charged with two counts of unlawful and wilful damage, but at the trial the matter proceeded on one count only and of which a jury found him guilty. At the trial of this action Mr Dunwoody relied upon s.79 of the Evidence Act 1977 and so the conflicts between the Sherrys' and Mr Dunwoody's versions of the incident must be resolved. It is necessary to decide whether Mr Dunwoody did commit the acts constituting the offence and whether he had the requisite state of mind.

The incident occurred on Lot 6, the portion of land on the corner of the Yakapari Seaforth Road and Miers Road. It is northwest of Lot 300 and the home block. The Sherrys purchased Lot 6 in about late 1991. On the morning of 30 October 1992 Mr Sherry, his wife and youngest daughter, then aged about 8 years, drove in their utility from the home block to Lot 6. They had probably seen Mr Dunwoody or his employee earlier, driving tractors loaded with full cane bins along Miers Road in a westerly direction towards the Hillsborough siding. This siding is northwest of the Belmunda siding on Lot 300. The railway line runs northwest from the Belmunda siding, across Miers Road, then through a cutting beside the boundary of Lot 6 up to the Hillsborough siding. Vehicles can reach the Hillsborough siding by way of a gravel or dirt road which passes through Lot 6. The gravel road enters Lot 6 from Miers Road about 5 metres south west of the point where the railway tracks cross Miers Road. There is also a public way to the Hillsborough siding, that is, along the Yakapari Seaforth Road and then along a bitumen road north of Lot 6.

At the trial, Mr Dunwoody claimed he then believed he had access to the Hillsborough siding through Lot 6 as he had used the gravel road previously to attend farmers' meetings and to reach the siding. Mr Smith, who sold Lot 6 to the Sherrys, owned most of the land around Lot 6. Mr Dunwoody knew Mr Sherry had purchased some of Smith's land, he had seen white survey pegs to indicate that some of the land along the Yakapari Seaforth Road had been cut off Smith's land and he had seen Lawrence Sherry clearing the land and drilling there in about March or April 1992. Mr Dunwoody said he thought that the land had only been cut off to the top of the hill because Mr Sherry had only cleared the undergrowth to that point.

As Mr Sherry approached the gravel road leading into Lot 6, he saw a haul out tractor pulling empty cane bins along the gravel road heading out towards Miers Road. He recognised the tractor as one of Mr Dunwoody's. Mr Sherry drove into the entrance of Lot 6, parking on the gravel road. He stopped the tractor driver, Steven Camilleri, an employee of Mr Dunwoody. Mr Sherry said he told Mr Camilleri not to cart cane through his property. Mr Camilleri told him to see Ernest Dunwoody, as “this has nothing to do with me. I was told to cart cane through here and this is what I'm doing.” Camilleri then drove the tractor around the utility and out onto Miers Road.

Mr Sherry decided to wait and to take the matter up with Mr Dunwoody, believing Mr Dunwoody would be coming that way. He drove the utility up the gravel road into Lot 6, parking about 40 metres from Miers Road and about four to four and a half metres from the edge of the cutting. At that position the road is about 5 metres higher than the railway track below in the cutting and about 3 metres higher than the point where the railway tracks cross Miers Road. Mr Sherry stood at the rear of the utility while waiting for Mr Dunwoody. The utility was plainly visible to any person driving along Miers Road.

That morning Mr Dunwoody was driving a large 95 horsepower tractor of about 8 tonnes which was towing two full cane bins, a combined mass of about 20 tomes. He said he was heading westward on Miers Road down the hill “flat stick” at about 34 to 36 kilometres per hour so that he could “get a run up to take the next hill”. He suggested he did not see the parked utility until he swung onto the gravel road as he was carefully checking whether there was a loco shunt about to cross the line. He suggested he was about 30 to 35 metres from the utility when he first saw it and was then travelling at about 24 to 26 kilometres per hour. He said he did not stop at the entrance to Lot 6.

However Mr Sherry said he saw Mr Dunwoody drive the tractor with two loaded can bins along Miers Road, and cross the train line. Mr Sherry said he signalled to Mr Dunwoody with his hand to keep going and carry on up Miers Road to the Yakapari-Seaforth Road and around to the “normal” entrance to the siding. He said they were then over 40 metres apart with nothing to restrict Mr Dunwoody's view of him. Maps, charts, photographs and a videotape in evidence support this. He said Mr Dunwoody stopped the tractor for a few seconds and began yelling at him to move “that fucking vehicle or he was going to ram it”, and that he then drove the tractor and the bins up the dirt road, stopping about four metres behind the utility. Mr Sherry remained standing behind the utility, in which his wife and daughter were seated.

Mr Sherry said, “I told him I was not going to let him through and he kept repeating to shift the fucking vehicle or he was going to ram it” and he said, ‘Where's your bloody sign, Sherry? You're nothing but a trouble maker’.” Mr Sherry said he told Mr Dunwoody he was not letting him through, and went back into the cab of the utility to the driver's seat. He said Mr Dunwoody started up the tractor, “I could see him in my rear vision minor, the one on the side on the door. He drove forward.” The tractor collided with the rear of the utility, buckling and scratching the back corner of the tray on the driver's side. In so doing the tractor pushed the utility forwards and sideways, moving the utility one or two metres so that the utility ended up on an angle across the dirt road, about three and a half to four metres from the edge of the cutting. The tractor then reversed or rolled back.

Mr Dunwoody claimed at the trial that he did not see the utility when he crossed the line, and that when he did, it would have been unsafe to back out of the area or to take other action. However Mr Dunwoody knew the Sherrys had purchased land in the immediate vicinity of the gravel road and he had seen some of the land cleared and Mr Sherry working there. I do not accept Mr Dunwoody's evidence that he did not realise that that part of Lot 6 was owned by the Sherrys. Mr Dunwoody had good reason to prefer using the gravel road through Lot 6 rather than the public Yakapari Seaforth Road and the bitumen road off it which also led to the Hillsborough siding. At that time his tractor was not registered or insured. His counsel had suggested also that Mr Camilleri would give evidence for the defendant, but ultimately he was not called. The inference may then be drawn that Mr Dunwoody knew that the gravel road was on the Sherrys' land, that the Sherrys were aware that he was using the gravel road through Lot 6 to gain access to the Hillsborough siding, and that the Sherrys did not wish him to use that road. When he turned into the gravel road, he could not have reasonably suspected that he had any implied licence so to use the gravel road through Lot 6. He probably saw the utility before he turned off Miers Road and stopped his tractor when Mr Sherry indicated to him to move on.

Mr Dunwoody said his first reaction on seeing the utility 30 to 35 metres away, was “horror and shock at what was ahead of me because I could see the potential for a collision if I didn't get my unit slowed down before I came up to the tilly and so I started trying to slow down which involved changing down gears and braking gently”. He said he had not braked hard to avoid a collision because there was a potential “for sliding sideways”, and that the best way to slow down was “was to change down gears and use the engine so I concentrated on shifting down gears and not using trailer brakes as well as wheel brakes”. He said he stopped after making contact with the utility while travelling at one kilometre an hour or less, and that the utility moved forward about 6 or 10 inches. When the police interviewed him about the incident in November 1992, he told them he had slammed on the brakes when he saw the utility and that he was almost at a stop, travelling about one to two kilometres per hour when he came in contact with the rear of the utility. Having regard to the damage done to the tray of the vehicle, it is obvious that the tractor which travelled over almost four metres of the roadway was not moving fast when it collided with the stationary utility.

Mr Sherry said he was terrified and that his wife and child were screaming and crying. He wife got out of the utility, as did his daughter and Mrs Sherry went to the vehicle yelling to Mr Dunwoody to stop it or she would call the police. Mr Sherry then got out of the utility. He said he feared for her safety and that “Dunwoody was yelling and screaming and carrying on”, saying “to shift the bloody vehicle or he's going to push it out of the way”. “I got out and I told my wife to get back in the vehicle. My daughter was standing on the other side of the ute. I could see her on the other side of the tray and she was crying and screaming and she was left there standing on her own while my wife was beside Dunwoody trying to tell him to stop.” He told Mr Dunwoody that he did not want him carting cane through his property but Mr Dunwoody “kept shouting to shift that fucken vehicle or he's going to ram it out of the way.”

After pleading with Mr Dunwoody, a terrified Mrs Sherry fled with their daughter to a neighbour's place where she rang the police. When she left, Mr Sherry was sitting in the utility with the tractor three or four metres away from it. Mr Sherry thought Mr Dunwoody might try to drive the tractor between the utility and the cutting, and he said he moved the utility about half a metre further forward in case Mr Dunwoody tried to move ahead. Mr Dunwoody had probably started up his tractor and they were about three metres apart at that stage. Mr Sherry said it was a “spur of the moment thing” which he did “in order to block him” and that he then turned off his motor. The utility was still on an angle across the gravel road with most of it on the track. Mr Sherry said he remained in the vehicle, and looked out to see Dunwoody's tractor coming straight into the back of the cab. He was unsure whether or not Mr Dunwoody had moved the tractor before he moved the utility, or as the utility was moving. In any event he said the utility was stopped when the tractor drove into the side of the utility. Mrs Sherry heard the bang.

The utility was pushed sideways up the track. The bullbar on the front of the tractor caught in the cab and tray of the utility. Mr Dunwoody reversed the tractor pulling the utility back towards the tractor. Mr Sherry said he was terrified. He remained “frozen” in the utility, while Mr Dunwoody backed the tractor then drove off the dirt road along the passenger side of the utility then back onto the track continuing up to the Hillsborough siding. Clearly there had not been sufficient room for Mr Dunwoody to drive his tractor and bins safely between the utility and the cutting so he had in the event driven to the other side of the utility where there was ample room for the tractor to manoeuvre.

I prefer Mr Sherry's version of the incident to that of Mr Dunwoody. Both differed in some small respects from accounts they had given years earlier, but these differences were what one might expect given the time that had elapsed. Thus Mr Sherry had made it plain, while the tractor was stationary that Mr Dunwoody was not to proceed through Lot 6 but Mr Dunwoody threatened to ram the Sherrys' utility while he was stationary and then deliberately drove the tractor almost four metres into the tray of the utility, pushing it more than one metre forwards and sideways towards the cutting. I accept that Mr Sherry was shocked and terrified by the first collision as was his wife and his daughter. After the tractor rolled back from the impact, there was only about three metres between the utility and the tractor. Mr Dunwoody continued with his verbal barrage. Mr Dunwoody was determined to drive the tractor between the front of the utility and the railway cutting. To deter him, Mr Sherry not unreasonably moved the utility forward probably less than a metre, but Mr Dunwoody then accelerated the tractor causing the second collision. I accept Mr Sherry's evidence that he was stationary when Mr Dunwoody's tractor collided with the utility. Consequently I am satisfied that on both occasions Mr Dunwoody intentionally collided with the utility. One might also conclude that he did so to alarm or frighten the Sherrys.

A few days after the police interviewed him about the ramming incident, Mr Dunwoody received a letter dated 25 November 1992 from the Minister for Primary Industries, Mr Casey, telling him that the Department would give him assistance to implement further measures with the leased lands only if Mr Sherry gave his “full” consent. Consequently, there were no further contouring surveys done by the DPI.

Trespass to the Person:

The facts as found constitute trespass to the persons of the Sherrys by Mr Dunwoody. In Battiato v Lagana [1992] 2 Qd R 234 at 235, Moynihan J (with whom Thomas and Derrington JJ agreed) said at 235:

Mr Dutney Q.C. submitted that trespass should no longer be regarded as a tort of strict liability, relying upon Hackshaw v Shaw (1984) 155 CLR 614. There the plaintiff succeeded on her negligence claim but failed in her alternative claim based on trespass to the person. At 619 Gibbs CJ expressed his preference for the then current English position (Letang v Cooper [1965] 1 Q.B. 232) that in a claim for trespass to the person based upon battery by a blow or missile, the onus of proof lies on the plaintiff and that it is for the plaintiff to prove intent or negligence on the part of the defendant, to the view taken by Windeyer J in McHale v Watson (1964) 111 CLR 384. Windeyer J had said 111 CLR at 388-389 that where there is such a claim “the defendant must prove that he did not intend to hit the plaintiff and that he was not negligent in delivering the blow or discharging the missile”. However, it was not necessary in Hackshaw v Shaw for Gibbs CJ to resolve the question.

The Lelang v Cooper view was referred to with approval by the Full Court in Battiato v Lagana [1992] 2 QdR 234, which binds me, and the preference expressed by Gibbs CJ fits well with later developments in the law of tort in Australia (see e.g. the discussion of liability for the intentional infliction of harm in Northern Territory of Australia v Mengel (1996) 185 CLR 307, at 341-2; and at 347 where reference is made to Wilkinson v Downton.) The Sherrys did not claim negligence in the alternative. The Full Court explained the distinction where negligence is involved:

Accordingly the Sherrys succeed on this claim.

Intentional Infliction of harm

Undoubtedly the Sherrys were terrified when Mr Dunwoody deliberately drove the tractor into their utility after threatening that he would push it out of the way if they did not shift it. The utility was less than five metres from the edge of the cutting before the first impact but it was pointed towards the cutting and Mr Dunwoody's tractor was far larger and more powerful than the Sherrys' utility. I accept that after the first impact the utility moved at least one metre and ended up less than four metres from the edge of the cutting. Having regard to Mr Dunwoody's determined aggression prior to the impact, the deliberate ramming of their vehicle so close to the cutting involved, on any view, a threat of at least serious injury to the Sherrys and their child. I accept that both plaintiffs experienced significant fear, helplessness and horror at that point. Although the second impact occurred after Mr Sherry had moved his vehicle to block the tractor, this too was extremely frightening for Mr Sherry.

In Wilkinson v. Downton [1897] 2 QB 57 at 58-59, the tort was described as follows:

This cause of action differs from cases concerning interference with the ordinary and reasonable enjoyment of property amounting to a nuisance. As Dillon LJ explained in Khorasandjian v. Bush [1993] 3 WLR 476 at 482:

But as Peter Gibson J (dissenting [1993] 3 WLR at 490) pointed out, there is no tort of harassment, and consequently a distinction must be drawn between the wilful act calculated to cause physical harm to a person and mere harassment:

Thus the plaintiffs will be entitled to recover for the tort of intentional infliction of harm if they prove that they suffered injury, relevantly mental illness, as a result of the incident. It is convenient to consider this aspect later.

However, one effect of this incident of 30 October was that the relationship between the Sherrys deteriorated. Mr Sherry was unable to work for a few days, he had nightmares about the ramming incident and both felt that Mr Dunwoody could do what ever he liked to them, that they were unable to control their own property and they were concerned about their family. In effect they felt invaded in their home, in their person and their marriage.

The Sherrys were unable to discuss things in a way they had previously and Mrs. Sherry began threatening to leave the marriage unless things improved. The situation worsened after Christmas, when in early January there was a shooting incident.

On the night of 6 January 1993, Mrs Sherry became drunk for the first time in her life, she was uncontrollable and told Mr Sherry that she had had enough. The following day she told him she was terrified and if things did not get better she was going to leave him. Following those incidents of 6 and 7 January both, I accept, were concerned that they would have to put up with this behaviour from Mr Dunwoody and Mr Sherry felt extremely powerless at being unable to control him. When Mrs. Sherry was required to give evidence in the Magistrates Court at the committal on 8 April 1993, she was nervous, heartbroken and terrified. Communication between the Sherrys improved in September 1993 as the jury trial approached. They hoped that as a result of the criminal trial things would settle down and they would be able to return to their normal, carefree, happy family life. They decided they could cope, and Mr Sherry did not wish to upset his wife by suggesting they see a doctor, but he was frightened to be away from the house and his family for a night and consequently sold his fishing boat and gave up the regular fishing trips he had previously enjoyed. Throughout the period from October 1992 until the criminal trial in about September 1993, Mr Sherry relived his memories of the ramming incident whenever he heard tractor noises at night time. He said hearing a tractor noise when he was asleep brought back memories of the tractor coming towards the driver's door of his vehicle. The spirit of the household improved when the defendant was found guilty of wilful damage and a penalty imposed upon him. His appeal against the conviction was dismissed.

It was said that Mr Dunwoody's version should be preferred to that of the plaintiffs. However, I was not persuaded that the Sherrys' evidence of the ramming incident was materially different from versions given earlier, or that Mr Sherry had a desire to drive Mr Dunwoody out of the district. It is perfectly reasonable that what he wanted was that Mr Dunwoody's physical presence not be so close to his house.

1993

There is no question, as Mr Dunwoody admitted, that by the beginning of 1993 Mr Dunwoody well knew that the Sherrys did not want him to come any where near them for any purpose. However the Sherrys' house was surrounded by the cane paddocks farmed by Mr Dunwoody. It also became clear as the evidence emerged that Mr Sherry had become more concerned and disturbed by the presence of Mr Dunwoody, as well as by the noise or lights of his machinery:

The Sherrys claim that Mr Dunwoody's farming activities during the period from 1993 to 1997 caused them nuisance as well as an aggravation and perpetration of traumatic stress disorder. They complained of their being disturbed or woken from their sleep at night or in the early hours of the morning by the noise of Mr Dunwoody's trucks, tractors and harvesters passing along Miers Road near their house, along the Farm Road beside their house, and operating in the paddocks nearby. On occasions they said they were disturbed by the lights of those vehicles (including revolving lights) shining into their bedroom. They complained they were woken by their dogs barking when Mr Dunwoody or his employees drove down the Farm Road. They said they were required to sleep with the windows closed to reduce the noise.

The Sherrys have lived in their house for 18 years. At most times, at night and in the early hours of the morning, their neighbourhood was and is very quiet. There was some intermittent noise. During the harvesting season the cane train passes through the cutting south of the home block as it carries the empty bins west to the Belmunda siding where full bins are collected and earned east to the mill. From 1993 to 1995 the trains passed through the cutting about four times each night between the hours of 10 p.m. and 6 a.m. and in 1996 and 1997, about eight times each night.

The Farm Road (and before that the home access road) was also used on occasions at night or in the early hours of the morning by train drivers employed by the mill driving to or from the Belmunda siding on Lot 300 for their shift changes. Sometimes the Sherrys' dogs barked at the mill workers' utilities. Both said neither were ever disturbed in their sleep by the considerable noise of the train passing through the cutting or by the mill workers driving to or from the siding.

Nuisance

Before turning to the evidence of what was said to have occurred, it is convenient to consider firstly what activities amount to actionable nuisance, secondly, the accepted farming practices in the Mackay district during the relevant period, and thirdly the results of an engineer's noise and light tests carried out at the Sherry's farm.

In order to constitute actionable private nuisance, two elements must be satisfied:

As to what is reasonable, it is useful to repeat what was said by Jordan CJ in Don Brass Foundry Pty Ltd v. Stead (1948) 48 SR (NSW) 482 at 486-487;

In Spencer v. Silva [1942] SASR 213 at 219, Mayo J explained why, when a plaintiff is affected by the noise or light, that is not necessarily sufficient to establish a nuisance:

By 1993 significant changes to sugar production in the Mackay area were being implemented, and in order to compete with overseas sugar producers, farmers in the Mackay district had adopted new methods and practices. Thus during the relevant period-

Finally, most farmers in the area try to minimise the disruption their activities might cause others in the area, such as householders and churches. They accommodate them by good farm management and organisation. On occasions, because of breakdowns or weather, a farmer might inconvenience his neighbour, but generally with good planning and management, these episodes are rare.

Noise and Light

Various noise monitoring tests were undertaken on the Sherrys' land by an engineer specialising in environmental acoustics, Mr Max Winders, in November 1997. He also assessed the intensity and range of lights on some of Mr Dunwoody's machinery by reference to manufacturers' data. Noise was measured outside the house and within various parts of the house with the windows closed and open. Regard was had to various legislative criteria and policies. Basically these tolerate noise emitted for attaining agricultural purposes having regard to seasonal requirements.

The Farm Road comes to within 25 metres of the house at one point. The house is within 70 metres of Miers Road to the north and 65 metres from the cane railway line to the south. These tests suggested that the train noise averaged 73 decibels outside the house, or about 61 decibels in the house with the windows open. This might indicate that a person had a high tolerance of noise if that person was not disturbed by the train noises, unless that person slept with the bedroom windows closed when the noise level from the train would be reduced to about 54 decibels. Mr Winders' report (Exhibit 65) noted that there were established criteria for predicting when sleep would be disturbed from intermittent noise. He explained that a dog barking produced about 55 decibels which would cause most people to wake up or check the dog and from a planning point of view, below 55 decibels is acceptable for residential areas. Noise of below 50 decibels at night could be expected to elicit extremely few complaints, and about 10 times that number could be expected to be “highly annoyed” where the day/night level reaches 55 decibels.

A noise data logger was placed in a cane paddock in Lot 1, about 65 metres south of the train line and about 130 metres south of the house. From the data collected Mr Winders estimated the noise levels he would expect outside the house and inside the house with the windows closed and open, when the cane train passed at night or when a harvester, a harvester combination, a tractor or a utility drove along Miers Road or the Farm Road or worked in the various cane fields around the Sherrys' residence. From the data logged at that southern point he estimated that the typical peak noise level which one could expect outside the Sherry residence while a harvester and tractor were operating in the west would be 77 decibels, in the south 68 decibels, and north in Lot 3, 67 decibels; from a fully loaded tractor he would expect 72 decibels in the west, and a tractor with a light load 61 decibels in the west.

Vehicles travelling along Miers Road in the proximity of the residence generated between 50 decibels (the utility) and 66 decibels (a harvester). He estimated that the noise levels of a tractor approaching the Sherry residence on Miers Road peaked outside the residence at 57-60 decibels. Allowing for the vehicles slowing, he estimated that as they turned down the Farm Road, the tractor noise would then peak at about 68 decibels, a harvester at about 74 decibels and a utility at 61 decibels.

Thus he estimated that the typical noise level inside the house, with the windows open, from a harvester travelling along the Farm Road peaked at 62 decibels, and with the windows shut at 55 decibels, that the noise level of a tractor travelling along that road peaked at 56 decibels with the windows open and 49 decibels with the window shut. Similarly, from inside the house, the noise level from a harvester working on the farm peaked at 65 decibels with the windows open and 58 with the windows shut, a tractor on Miers Road peaked at 48 decibels with the windows open and 41 with the windows shut and a harvester on Miers Road peaked at 54 decibels with the windows open and 47 decibels with the windows shut.

The noise from passing cane trains was found to be exceeded by the noise of the harvester passing on the Farm Road, or when operating within 70 metres of the residence. Mr Winders then thought that the Sherrys, if in the heavy stage of sleep in the early hours of the morning, had their windows closed, they should not have been disturbed by the tractor if they had not been troubled by the cane train. The data logger recorded that outside the residence each of the trains passing exceeded the 55 decibel level for, on average 1.5 minutes, or at least 12 minutes each night. This had a significant impact on the acoustic amenity of the residence, but the Sherrys did not complain of this and Mr Winders suggested the Sherrys may have adapted to this. However, Mr Winders explained that it was not unexpected that the Sherrys complained of annoyance with Mr Dunwoody's night time and intermittent noise as intermittent noise was more disturbing than continuous noise. It should also be noted that the trains passed at the same time each night, unlike the Dunwoody machines of which the Sherrys complained.

Mr Winders also tested some of the lighting on tractors and a cane harvester of a type used by Mr Dunwoody in 1997. He did not test the harvester which Mr Dunwoody had purchased from the plaintiff. The machines tested by Mr Winders were fitted with headlights with high and low beam and work lights to illuminate the local work area on the side and rear of the machine. There were elevated head lights on those with cabs to illuminate the area immediately in front of the machine. He made no measurements of the lighting distribution in operating mode and relied upon his knowledge of tractor lighting supplemented by data obtained from a supplier. He then thought that when a machine was turning out of a row of cane to turn back again, it would be most unlikely that direct lighting to the Sherry residence from any of Mr Dunwoody's machines would have exceeded that of a road vehicle on high beam, or a level of seven lux. By comparison, in residential areas, street lights usually fall off to about 2 lux at the boundary of a residence in a neighbourhood unless they are set to illuminate a specific hazard. He thought if the lights of the tractor were on low beam, light intensity on the property would be less than 2 lux, and that the lights of vehicles travelling on the Farm Road would not illuminate anything in the house. There was no mention of flashing or revolving lights, presumably these are not now fitted to the vehicles Mr Winders considered.

However Mr Winders did not state that the tractor's revolving lights, or the elevated headlights or the lights on high beam could not have shone into the Sherrys' bedroom.

It will be seen that the combination of those lights with the noise of the harvesters or tractors passing along the Farm Road or working in close proximity to the house was often such as to waken the Sherrys or cause a disturbance to the Sherrys. This combination or the noise alone would not have been reasonable if emitted for purposes other than agriculture or without appropriate regard for seasonal requirements or if in excess of the ordinary practice of cane farmers in that district during the relevant period.

The events relied upon to ground the nuisance claim are as follows:

3. (a)
   5 January 1993 (para. 19 of the amended plaint)

The district then suffered from drought. At about 10.15 p.m. Mr Dunwoody drove a tractor and fertiliser bin west on Miers Road then along the Farm Road to the western portion of Lot 1, where he fertilized the cane until midnight. Mrs Sherry was watching television and her husband had gone to bed when she heard the tractor and bin driving down the Farm Road. She noticed its lights. Mrs Sherry then went to bed but she could not sleep. She said she was not disturbed by the noise or the lights from the tractor but she was disturbed because “his presence frightens me” and she could not sleep until she heard him leave. Mr Dunwoody claimed at the trial that on that particular occasion he expected rain. He said he could have fertilised during the day but at that stage he could not afford casual labour because he was financially destitute because of the preceding drought and the “law suit”, and so had to fertilise at night. The writ for possession had been issued four months earlier and Mr Dunwoody was facing committal proceedings on the wilful damage charges from the ramming incident two months earlier.

3. (b)
   6 & 7 January 1993 (paras. 27, 28 and 30)

Mr Sherry's cattle grazed on the northern part of Lot 3 and occasionally broke through an electric fence separating the grazing area from the leased cane land, especially in times of drought. Undoubtedly they did some damage to Mr Dunwoody's cane, and Mr Dunwoody was annoyed by this. In the afternoon of 6 January 1993, Mr and Mrs Sherry were at home with four of their children, one of the children's friends and Mrs Sherry's brother. Mrs Sherry was in the kitchen when she heard a tractor drive along the Farm Road and stop. Mr Dunwoody sounded the tractor horn. When Mrs Sherry looked out the window, Mr Dunwoody yelled out, “come on outside Sherry, you gutless wonder.” He told them to get the cows out of the cane or he would shoot them. At the trial Mrs Sherry said she was terrified when she heard him, “I just couldn't stand it.” After the tractor had driven away from the Farm Road, Mr Sherry and his brother-in-law left the house. About an hour later Mr Dunwoody returned to Miers Road, in his utility. He said he had waited to give the Sherrys an opportunity to get the cows out of his cane. He drove onto the leased land on Lot 3 opposite the house. Mrs Sherry heard four rifle shots. She said she thought “he might have come back for me and the kids”. She rang the police. Mr Dunwoody returned on his tractor and began working on Lot 1. Mr Sherry came home and drove his utility to the shed as Mr Dunwoody was driving his tractor out along the Farm Road. Mrs Sherry walked down to the shed to tell her husband about the shots. Mr Dunwoody stopped his tractor on the Farm Road and began yelling out about the cows again, and he probably made an inappropriate suggestion to both of them about what he would do to parts of their bodies. Both Sherrys were frightened of him, they had not seen the .303 rifle he was using that day, but they both knew he had been armed earlier, albeit to scare the cattle. This was sufficient to cause fear in the Sherrys as Mr Dunwoody was clearly angry and armed with the largest rifle he had ever used to frighten the stock. In the circumstances their fear that he was threatening physical violence is explicable.

Mrs Sherry became extremely upset. That night she argued with Mr Sherry. She told him she did not know why Mr Dunwoody “wanted to do that to us. We did nothing to him. I told Lawrence that if things weren't going to change I was getting out.” She became substantially intoxicated for the first time in her life. Mr Sherry said he tried to comfort her but she was uncontrollable. He said, “I felt awful because I'm supposed to be the head of our household. I couldn't do a thing about it.”

3. (c)
   7 January 1993 - (paras. 23-25)

However in the early hours of the following morning, Mr Dunwoody, wearing his ear muffs, again drove one of his big tractors down Miers Road from the east and along the Farm Road which is close to the residence. The Sherrys were disturbed by the noise and the working lights mounted on the tractor canopy. He said he had been fertilising throughout the day and simply had not got to that block till then and that rain was threatening. He operated the tractor and its attached fertilizer bin on Lot 1 from 12.30 a.m. till approximately 3.05 a.m., when he drove back on the Farm Road to the east.

That afternoon Mrs Sherry was at home with the children when she heard two rifle shots. Mr Dunwoody had fired his rifle to scare the cows out of the cane on Lot 3. Again she was terrified. The discharge of firearms while clearing the cane fields occurred barely two months after the ramming incident, and in the face of Mr Dunwoody's overbearing personality. It was not a reasonable user of land - not because of the effect it had on the Sherrys, but because it could not have been normal farming practice to threaten to shoot another's stock before firing a rifle to scare the stock.

On 7 January 1993 the Minister wrote again to Mr Dunwoody, confirming his earlier advice that until Mr Sherry consented, the Department would not offer further assistance with soil conservation works.

3. (d)
   February/March 1993 (paras. 33-35)

One night in either February or March 1993, Mr Dunwoody drove a tractor with a pump attached along Miers Road from the east and parked it with its engine running for three hours on Miers Road at a point in front of the residence. The tractor was being used as a mother tractor for a smaller tractor spraying chemicals on the cane planted on Lot 3 on the northern side of Miers Road, returning periodically to the large parked tractor to replenish stock. There would have been far less noise and interference from flashing lights had Mr Dunwoody parked the larger tractor further west along Miers Road, which was feasible in the circumstances. He claimed he then did not believe it would cause anyone any disturbance, but he then knew that the Sherrys did not want him anywhere near them. The events of that night contributed to nuisance.

3. (e)
   February/March 1993 and November/December 1993 - (para. 72)

During the crushing season in 1993, Mr Dunwoody and his employees used the Farm Road to gain access to Lot 1, cultivating Lot 1 in the night hours or the early hours of the morning. On many occasions the tractor had spraying equipment attached. The plaintiffs said they were unable to sleep when they heard the tractor driving near their house. There was no pattern to the time of night or the dates during this period on which the tractors would drive and work near their home. Both Sherrys said they would awaken, feel anxious and be unable to return to sleep until the tractors had left the area. They complained of the flashing lights and of having to sleep through summer and winter months with their windows closed in order to reduce the sound. Some of Mr Dunwoody's tractors were fitted with revolving amber lights. He would not accept that other lights fitted to the tractors shone into the Sherrys' bedroom. He knew that the Sherrys' dogs often reacted to his tractor's passing down the Farm Road late at night or in the early hours of the morning, so that if the Sherrys might wake, and if frequently enough, they would be annoyed.

I accept that the plaintiffs were disturbed at night or in the early hours on many occasions. There was no need to fertilize at night, provided of course that it can be done before the wet season begins. Mr Dunwoody said he sprayed the paddocks around the Sherry residence with herbicides at most, twice each year. Accepting that such spraying should be done preferably in the evening or early in the night, Mr Dunwoody chose to drive the tractor with a loaded spray tank down the Farm Road rather than down an alternative route which he could have used because he preferred to prevent any damage which might have been caused by the rougher road than the inconvenience or the stress caused to the Sherrys by the noise of the tractor, and the dogs barking. It was not unreasonable to irrigate during the night. It was not necessary for Mr Dunwoody to spray herbicides or fertiliser late at night and nor was it reasonable to disturb the plaintiffs by using the Farm Road in so doing.

By November 1993, the parties had faced each other in Court on three occasions. Mr Dunwoody was convicted of wilful damage in the District Court on the evidence of the Sherrys on 10 September 1993. He was ordered to perform 80 hours unpaid community service and pay compensation of $1,445.30 for the damage to the utility. Then, on 16 November 1993, the trial in the Supreme Court in the action for possession of the leased land commenced. After two days of evidence, the trial was adjourned part heard in order to allow the parties to attend a settlement conference.

3. (f)
   November/December 1993 (paras 38-40)

At about 10 p.m. on a night in November or December, Mr Dunwoody drove a tractor down Miers Road, along the Farm Road and south over the tram line to the rear of Lot 1. Mr Dunwoody did so in order to check the irrigator. He returned again about 2 a.m. to check the irrigator. He claimed his Dodge utility which he used for running around his farm lands was off the road. He said he had only a much larger truck, about the size of those used by the Council, which he thought might have made more noise. He had borrowed to purchase the Sherrys' land and suggested his outgoings were such that he had little available cash and said he could not afford to repair the utility. He claimed he could not at that time afford a smaller and roadworthy vehicle for these trips and had used the truck for trips into Mackay. Even accepting this, he could have used another route, along a waterway, on the infrequent occasions he irrigated. This alternate route may have taken a few minutes longer, but he said that would not have bothered him.

1994

Despite his being on early roster throughout 1993 and 1994, it was said on his behalf that Mr Dunwoody organised his farming practices so that only on one occasion in two seasons were the Sherrys disturbed by pre-dawn harvesting near their house, as opposed to movement of vehicles up the Farm Road. In 1994, eight occasions are pleaded, five of them in August 1994 and these also include the burn. Three of the occasions fell within the same week and are connected with the early harvesting roster.

Mr Dunwoody said he did not believe he was irrigating in 1994 or 1995, when water was low. However, he had used the tractor late at night.

The Supreme Court trial resumed in March 1994, but after two more days of evidence, the action was dismissed because notices served under the Property Law Act were found to be defective in some respect. The Sherrys were ordered to pay Mr Dunwoody's costs.

3. (g)
   January to June 1994 (paras. 43-44)

Mr Dunwoody was not harvesting during this period but the Sherrys allege that he continued to tend the leased land on Lot 1 at night, driving his tractor down Miers Road and along the Farm Road on numerous occasion at night or in the early hours of the morning. I am satisfied that it was more probable than not that Mr Dunwoody drove his tractors up or down the Farm Road frequently and far more than the few occasions he conceded. Mr Dunwoody said he had sprayed the crops with herbicide on two or three occasions and had ceased fertilizing at night. He said he was not irrigating at the beginning of 1994 as he had run out of water. He denied he would have driven around near the Sherrys' place for reasons unconnected with the running of his farms. He conceded that in those years that in using the Farm Road instead of another, slightly slower route, there was in effect a trade-off between the Sherrys being disturbed by tractor noise and the dogs erupting half the time, and any damage that might be caused to his herbicidal spray equipment by using the rougher alternate route.

On 9 June 1994 Mr Dunwoody's solicitors filed a bill of costs against the Sherrys, following the dismissal of the Supreme Court action.

When harvesting began, Mr Dunwoody was again on the early roster at the Belmunda siding. He said it was more convenient for him to cut cane on the leased land for the early morning pick up, than the cane on his home farm. He claimed he had most definitely taken the Sherrys into account. The cane harvesting group of which Dunwoody's farm was a member was to harvest about 14,000 tonnes as it had in 1993. However Mr Dunwoody claimed his 1994 harvesting season was unusual. He was late harvesting. He had had difficulty finding a harvester of whom the mill approved. He said his cash flow was low because of the late harvest and he was servicing the debts incurred in expanding his farm. The 2,500 tonnes produced from the 70 hectares of Dunwoody's home farm was hauled to the Belmunda siding. There were two routes to the siding. The first, which was shorter by 100 metres, was from Miers Road, down the Farm Road and then along a headland beside the train line. The second route went along Miers Road west across Seaforth Creek and then south to the siding. This longer route was quicker. Mr Dunwoody claimed that in 1994 as his cane was carted by the longer, but faster route, that he would not have permitted the waste of time and extra gear changes which would arise hauling cane along the Farm Road. He conceded there may have been occasions when the return trip was made along the Farm Road.

Sunday night, 14 August 1994 - Trespass

On 14 August 1994 a Dunwoody tractor drove along the eastern side of the home block between its eastern boundary and a row of their fruit trees by the greenhouse and garden shed over the tram line. This is the trespass to which reference has been made earlier. Both Sherrys were badly affected by this. Mr Sherry could not sleep, and memories of the ramming incident plagued him again. Clearly he felt powerless to stop Mr Dunwoody coming on to their land. He said he felt that if he had gone outside at night to tell Mr Dunwoody not to go through their property, Mr Dunwoody would run over him and say he did not see him in the dark.

3. (h)
   15, 16, 17 and 18 August 1994 about 3.45 a.m. (paras. 47, 53)

Harvesting continued on the south east portion of Lot 1 during this four day period. At about 3.45 a.m. on 15 August and the following three mornings, the Sherrys were awoken by a tractor pulling a bin trailer driving down the Farm Road.

A shorter route could have been taken at that stage to work that particular part of Lot 1. Mr Dunwoody operated his tractor while his contractor operated a cane harvesting machine close to the southern boundary of the home block between about 3.45 a.m. to about daybreak on 15 August. Much of his cane had been burned which meant he was required to harvest it quickly so it could be crushed before the sugar content of the burnt cane deteriorated. He had at that time also harvested green cane. The Sherrys' sleep was disrupted as the tractor made a loud, excessive and continuous noise, as did the cane harvester. They also complained of the lights from the tractor and the harvesting machine. The use of the machinery in the early hours of the morning was not unreasonable, having regard to the area being harvested and the mill roster on which Mr Dunwoody was operating and the number of bins he was required to fill.

On 17 August 1994 Mrs Sherry consulted a general practitioner, Dr Jacobs, complaining of stress and anxiety.

By about 24 August 1994, Mr Dunwoody's bill of costs in respect of the Supreme Court action had been taxed and the Sherrys ordered to pay more than $36,000. Mr Sherry found this depressing and the Sherrys objected to the assessment. He too consulted Dr Jacobs on 5 September 1994.

3. (i)
   5 October 1994 (para. 61)

At about 4.10 a.m. on 5 October 1994, Mr Dunwoody drove his tractor and an empty cane bin trailer along the Farm Road. Again the Sherrys claim this caused nuisance, annoyance and harassment, and that they suffered an aggravation and perpetuation of the traumatic stress disorder they claim they suffered as a result of the ramming/bumping incident. The continual use of the Farm Road to cart cane bins, move harvesters and other equipment, was unreasonable. Mr Dunwoody conceded that he would have been able to use another path in and out of lot 1, one which was to the west of the Farm Road.

Mr Sherry had consulted Dr Jacobs and on 25 October 1994 at the suggestion of their solicitors both consulted a Rockhampton psychiatrist, Dr Alroe. He confirmed a diagnosis of post traumatic stress disorder. In November the Sherrys failed in their application for review of the taxing master's decision. They were ordered to pay further costs of $1,569.00.

3. (j)
   Midnight 19 November 1994 to 20 November 1994 (paras 56 and 75)

At midnight on 19 November 1994, the Sherrys were awoken by their dogs barking and the burning of a cane paddock in Lot 1. The noise, light and smoke from the burning of the cane on that paddock disturbed them. That paddock did not adjoin the house block, but was separated from the home block by another paddock adjoining the house block on the western side. Mr Dunwoody said he burned at midnight because he was harvesting late in the season, he was using a harvester designed for burnt cane, and in his opinion that was the optimum time to control a bum, having regard to the condition of adjacent paddocks. He had not notified the Sherrys that he intended to burn that night, and he was not required to do so under the relevant regulations, as the paddock did not adjoin their residence. The Sherrys were disturbed again by noise at about 4 a.m. on 20 November when Mr Dunwoody and his burn crew drove the cane harvester and haulout tractor along Miers Road and along the Farm Road. This was an unreasonable use of the land as the men could have used an alternate route..

Mr Dunwoody then gave written notice to the Sherrys on 22 November 1994 that he would be burning the cane adjoining their residence at 10 p.m. that night, weather permitting. The note suggested they might wish to video-record the incident. Mrs Sherry wrote back advising that they objected to his burning at that hour “as we have kids going to school and they go to sleep at 8 p.m.” In the result, at about 7.30 or 8 p.m. that night Mr Dunwoody began burning off the cane paddock which is immediately adjacent to the western boundary of the home block, and between Miers Road and the paddock which had been burned on 19 November. He conceded that the same dangers that had concerned him sufficiently to delay the burn until after midnight on 20 November were present when he burned the adjoining paddock at 7.30 p.m. on 22 November. There is a considerable difference between commencing a burn at 7.30 p.m. when most people are awake, and one commencing at midnight when those living nearby could be expected to be asleep. Consequently, the burn on 19 November, and the related noise from the vehicles along the Farm Road was in the circumstances an unreasonable use of his land.

The Sherrys complained of Mr Dunwoody's trespassing during 1994, either by interfering with an electric fence on Lot 3 or by allowing vehicles to drive or park on their land. These claims were not pursued ultimately. They are mentioned as they form part of the narrative which, from the defence view, indicates the unreasonableness or paranoia of the Sherrys' complaints and from the plaintiffs' stance, their overwhelming sense of persecution by Mr Dunwoody.

During the 1994 crushing season - Trespass - para. 105

A tractor probably knocked over a boundary marker on the western boundary of the home block one night during the 1994 crushing season, which was from about 15 June to 15 November.

23 December 1994 - Trespass - para 99.

It was said that during the evening a tractor hauling a fertilizer applicator, and driven by Mr Dunwoody or one of his employees, drove from Miers Road through the leased land on Lot 2 to the east of the house block, and in the course of so doing pulled out a star picket and wiring on the eastern boundary.

1995

In 1995 there were three specific incidents of nuisance alleged (paras. 81, 87 and 90 of the amended plaint). All of these were videotaped by Mr Sherry, as were most of the specific incidents pleaded, and occurred in the evening, but prior to 10 p.m. Only one, harvesting on Lot 3 on 26 July 1995 (para. 81) involved an extended period of noise, that is, from about 7 p.m. to about 10 p.m. The other particular two incidents involved the tractor passing by the Farm Road. However there were also complaints of numerous occasions between January and June and from late July to November when the Sherrys said they were disturbed by tractors on the Farm Road at night.

Sergeant Dan Graham of the Marian Police had received many complaints from the Sherrys about Mr Dunwoody over the years. He kept telling Mr Dunwoody to try to talk to Mr Sherry, and during 1995, suggested to both that they try to get together to mediate their dispute. However Mr Sherry indicated “he would not be in a room with Dunwoody” and that he would “break” him. On 9 January 1995, the Sherrys were examined by Dr Peter Mulholland, a psychiatrist. He confirmed Dr Alroe's diagnosis of post-traumatic stress disorder flowing from the ongoing conflict with Mr Dunwoody.

In February 1995 Mr Dunwoody and a partner purchased Lot 300, an area, of about 120 hectares. They borrowed the whole of the purchase price and agreed that Mr Dunwoody farm the land and pay rent to the partnership. He then owned or held a significant interest in about 230 hectares around Miers Road which was sufficient for him to produce about 17,800 tonnes of cane in 1996. Mr Dunwoody continued working the morning roster in 1995 harvesting season. Undoubtedly, Mr Dunwoody made some appropriate concessions; now that he thinks about it in hindsight, there was nothing after February 1995 which would have prevented him using an alternative route west of Seaforth Creek through Lot 300, having regard to the tractor noise and the dogs barking periodically, on those times that he had chosen to use the Farm Road late at night or early in the morning.

3. (k)
   Between January and June 1995 (para 78)

The plaintiffs said they were disturbed on numerous occasions at night or in the early hours of the morning during this period by a tractor, with or without spraying equipment or other implements attached, travelling from the east along Miers Road and down the Farm Road on the western boundary of the home block over various cane paddocks on lot 1, and then out by the Farm Road. The Sherrys say the noise and the lights from the machinery disturbed them. I accept Mr Sherry's evidence that these disruptions were frequent but irregular. There was no pattern to them, unlike the passing of the cane train.

In 1995 a new siding was built at Belmunda allowing for a greater number of bins. Mr Dunwoody again agreed to be part of the early roster. That year Mr Dunwoody usually began harvesting about 5.30 a.m. or 6 a.m. and probably did not cut close to the Sherry residence in the early morning, more than once or twice.

3. (l)
   26 July 1995 (para. 81)

Mr Dunwoody harvested part of Lot 3, which is on the northern side of Miers Road between about 7 p.m. and 10 p.m. on 26 July 1995. The Sherrys were disturbed by the noise and lighting of the haulout tractor and cane harvester involved from when it first came along Miers Road from the Dunwoody farm and to when there had been a machinery breakdown and it was not returned three hours later. Although farmers in the district did not harvest after sundown, Mr Dunwoody was harvesting burnt cane, and it was not unreasonable for him to harvest then in those particular circumstances.

3. (m)
   from 26 July 1995 - 28 November 1995 (para. 84)

The period complained of was the crushing season. The Sherrys complained of the noise and disturbance from machinery lights on numerous occasions when a tractor with or without spraying equipment or other implements drove down the Farm Road. Mr Dunwoody denied he had driven down that road during that period on numerous occasions. Apart from harvesting, he said he had begun clearing the land on Lot 300, but he claimed that was done in daylight hours. On balance, the disturbance caused by Mr Dunwoody's tractors did occur as alleged, but on fewer occasions than in previous seasons.

3. (n)
   28 November 1995 (para. 87)

The Sherrys videotaped the occasion when they saw there were disturbed by a tractor to which a spray unit was attached driving down the Farm Road at about 9.45 p.m. and then driving out of the Farm Road and east along Miers Road at about 9.55 p.m.

3. (o)
   7 December 1995 (para. 90)

The Sherrys complain of the defendant or one of his employees driving a tractor with a spray unit attached along the Farm Road at about 9 p.m. and out on to Miers Road. Obviously the tractor was returning to the Dunwoody farm. This event was also videotaped.

21 May 1995 - Trespass (para. 100)

Mr Sherry had erected an electrified fence on Lot 3 along the eastern boundary between the leased land on Lot 3 and Mr Dunwoody's farm. Mr Sherry discovered that about four fence posts and associated electrified wiring had been knocked over. The Sherrys could not succeed on this claim. The fence is a fixture which is part of the land, and it was not suggested that the lease provided otherwise. Mr Dunwoody as lessee had no right to damage the fence intentionally or negligently, but Mr Dunwoody was lawfully in possession of the cane lands on Lot 3. Having regard to Mr Dunwoody's interest in the land, he cannot be said to have trespassed. Clerk & Lindsell on Torts, 1989, 16^th ed., defines trespass at para 23-01 thus:

And at paras 23-08 and 23-17:

Various explanations were given by Mr Dunwoody for the damage done to the fence, he in effect, denying that the damage had occurred as a result of any intentional or careless act by him or his employees. Having regard to the damage sustained and the times at which it occurred, I was not persuaded that the damage was caused by wallabies or calves on all occasions. The fence seems to have been fairly easily repaired by Mr Sherry. The fence posts and electrified wiring more probably were disturbed by the farming activities of Mr Dunwoody and his employees.

Occasional damage to fence posts is obviously an occupational hazard of cane farming as the evidence indicated. Mr Sherry was required to maintain the fence (clause 4.13), but at the expiration of the lease the fences were, on the evidence, in similar condition as at the commencement of the lease.

5 August 1995 - Trespass (para. 101)

The Sherrys did not press their complaint that a boundary marker was bent over by Mr Dunwoody or one of his employees driving a tractor on to the southwest corner of the home block.

5 August 1995 - Trespass (para. 102)

Again, the Sherrys did not press their complaint of interference or knocking over of about four fence posts and associated electrified wiring on the eastern boundary of the leased part of Lot 3. Mr Dunwoody probably repaired this part of the fence.

21 September 1995 - Trespass - (para. 103)

The Sherrys complained of a motor vehicle having been parked on the strip between the home block near the Farm Road and in front of the sign stating “Private Property. Trespassers Will Be Prosecuted”. This claim was not pressed, I assume because the vehicle, although parked on the Sherrys' home block by an employee of Mr Dunwoody in the course of carrying out his employment, had previously been parked on the Sherrys' land when that person had picked up the Sherrys' children for school.

22 October 1995 - Trespass - (para. 104)

This is a final claim for trespass which was bound to fail, and also relates to the interference or otherwise knocking over of the four fence posts and associated electrical wiring near the common boundary between the leased part of Lot 3 and Dunwoody's farm.

Termination of Lease

The lease finally expired in March 1996, and the Sherrys recovered possession of the cane lands on Lot 2 and Lot 3. The Sherrys were no longer “surrounded” by land on which Mr Dunwoody was lawfully in possession. This did not greatly improve the relations between the farmers. Mr Sherry resumed his cane farming activities and carried out a close inspection of Lot 3. He claimed there has been severe erosion on Lot 3, both during the lease and since it expired, that an “enormous amount” of top soil had been washed away from Lot 3; that the rows in the cane paddocks were running in different angles, and with the contouring done by Mr Dunwoody, the rows are now much shorter and in awkward positions making it more difficult to operate the harvester. Consequently Mr Sherry engaged an expert who provided a written report and as a result of which, the Sherrys commenced the action in the Supreme Court on 20 November 1996. On 20 November 1996 the plaintiffs issued a writ out of the Supreme Court alleging damage to the reversion, although the writ was not served (by Sergeant Graham), until November 1997.

The Sherrys claim Mr Dunwoody's nocturnal activities continued into March 1997.

3. (p)
   between 7 December 1995 to about March 1997 (para. 93)

The Sherrys complain that on a number of occasions, during this period but not including 4 February 1996 and on occasions not as numerous as in the past, a Dunwoody tractor, with or without spraying equipment or other implements attached, had driven along Miers Road from the east, down the Farm Road, and in various parts of the cane paddocks in Lot 1, later returning along the Farm Road and into Miers Road on an easterly direction. Mr Dunwoody was clearing Lot 300 of rocks in late 1995. He said he and his contractor would have driven in their utilities along the Farm Road, and that the tractors would not have used it in relation to that work. During this period he said he would not have been irrigating, there would have been no night time harvesting traffic and there would have been little night time herbicidal spraying in late 1996 or early 1997. Mr Dunwoody probably used, and allowed his contractors or employees to use the Farm Road for tractors on infrequent occasions at night. In those hours they could have used another route and in any event it was not a reasonable use of land to spray at night.

3. (q)
   4 April 1996 (para. 96)

On Sunday 4 April, at about 7.10 p.m. Mr Dunwoody drove a tractor with herbicidal spraying equipment attached out of Lot 1 along the Farm Road and then an easterly direction along Miers Road towards the Dunwoody farm. This was not an unreasonable use of the land.

Mr Sherry continued to obstruct Mr Dunwoody with all means which he probably believed were lawfully at his disposal. When Mr Sherry sold Lot 1 to the plaintiff in 1989 he also sold the irrigation equipment on Lot 1 which comprised a pumping station on Lot 1 between the dam and the cane railway line and an underground pipe system and six hydrants. Lot 2 was irrigated by an underground pipe from Lot 1 which connected to a hydrant near the Miers Road boundary of the leased land on Lot 2, that pipe then passing under the home block to the part of Lot 1 west of the home block. Water from the dam in the southern area of Lot 1 was pumped under pressure through the pipes by the pumping station. After the lease expired, Mr Sherry opened the Miers Road hydrant, the effect of which was that when the water was pumped from the dam it flowed out of the hydrant into the creek preventing Mr Dunwoody from irrigating the western part of Lot 1. He was then required to seal off the relevant pipe at some cost. Mr Sherry was quite unabashed by his actions in preventing Mr Dunwoody's use of the whole irrigation system on the grounds that Mr Dunwoody had not obtained an easement.

Despite the complaints they had made to the mill about Mr Dunwoody's like activities, it seems the Sherrys continued to grow cane on the road reserve. In May 1996, the Sherrys applied to the Department of Lands for a temporary closure of part of Miers Road between Lot 3 on the one side and Lots 1 and 2 on the other. The usual sign was erected. Other residents of the area objected and it was not granted. It seems it was intended to use that area for cane and cattle. Mr Sherry claimed at the trial he had applied only for a partial closure. Whatever his intention, a partial or temporary closure of the road would have inconvenienced Mr Dunwoody. It is clear from the advice rejecting the application in January 1997 (Exhibit 59) that Mr Sherry had made it clear to the Department that he did not wish to close the whole road, only those parts along it on which cane was growing. In January 1997, the Department of Natural Resources ordered the Sherrys to get rid of some of the cane they were growing on Miers Road as not all of the cane along the road was grown under a lease, licence or permit.

Returning to the nuisance claim, the first question then is whether there was objectively, an unreasonable interference with the plaintiffs' use and enjoyment of their home block. According to the engineer, Mr Winders, and the tests which he did, there is, of the 17 specific occasions pleaded, only one where the defendant's nocturnal visits to the farm exceeded the train noise (20 November 1994, para. 75). Nonetheless I am satisfied that there were numerous other occasions when the noise and lights from Mr Dunwoody's machinery disturbed their sleep and compounded or prolonged the mental illness from which each suffered after the October 1992 incident.

The desire to have Mr Dunwoody making noise disturbance nowhere near the house block at night does predate the incident of 30 October 1992, but, I am not persuaded that the distress suffered by the Sherrys by the nocturnal presence of Mr Dunwoody after that date is not a consequence of the 30 October 1992 incident. There is no evidence that Mr Dunwoody's nocturnal activities in the lands surrounding the Sherry residence, were activities other than those connected with farm work. It was not suggested to Mr Dunwoody that he was driving on the road for the purpose of deliberately harassing the Sherrys, although the evidence, contained in the video of the star picket fence episode, would suggest otherwise so far as his activities that day are concerned. Those were deliberate and likely to cause offence. The complaints peaked in 1994. At the trial Mr Dunwoody said he was then suffering financial hardship, as he had borrowed the total purchase price for the land and improvements he had purchased from the Sherrys. He said the harvest was late because he could not obtain a cane harvester to assist him for a period and he could not afford labour and accordingly, according to his evidence, he was required to work longer hours to keep up and as he could not afford to fix his utility in 1993 and 1994, he had used his tractor. It was said by his counsel that as his financial situation improved, the complaints fell away. Since 1995, when he purchased Lot 300, there were fewer complaints. Although the plaintiffs said they were still awoken and unable to continue sleeping while tractors were in the vicinity, the effect of their evidence was that that activity had reduced and by the months before the trial, there was little about which they could complain. The reduction in nocturnal noise disturbance from cartage of cane bins coincides with the acquisition of Lot 300 where Mr Dunwoody was able to use a headland west of Seaforth Creek to obtain access to Lot 300 and Lot 1 and a “made” road from Lot 300 to Lot 1.

Undoubtedly, on most occasions it was the presence of Mr Dunwoody as well as the noise of his machines or the lights generated by them which disturbed Mr Sherry or Mrs Sherry. In balancing competing rights of user required in relation to nuisance, there is no requirement that one party be prohibited from carrying out normal activities merely because they are not unreasonably conducted at night, or that the other's paranoia about his mere presence at particular times should be accommodated. The defendant does not necessarily need to prefer the plaintiff's convenience over his commercial interests provided those endeavours are carried out in a reasonable manner having regard to the usual practice pertaining in respect of such endeavours. All this requires balance.

Secondly, there is a further reason, based on the locality of the neighbourhood, which might suggest that the plaintiffs should fail in their nuisance claim in respect of some incidents on which they rely. The evidence of the current farming practices, the requirements of the Mill, the economic viability of large farms, the longer hours some farmers are required to work, and the optimum time of day or night for the application of herbicides and irrigation, all suggest that it was reasonable for the tractor and Mr Dunwoody to be working on his cane lands or burning them off at least in the evening hours and to be harvesting as early as 3 or 4 a.m. It was reasonable that the Sherrys accept and do accept occasional disturbance from farm noise as the price of living surrounded by cane fields. But there were many occasions when Mr Dunwoody's activities could not be said to amount to a reasonable use of the land or providing a balance between the needs of the farmer and the needs of the householders: Sedleigh v. Denfield v. O'Callaghan [1940] AC 880 at 903; approved in Elston v. Dore 149 CLR 480 at 487-8. In my opinion Mr Dunwoody's financial situation does not provide a reasonable explanation for the constant nocturnal activity which disturbed the Sherrys. Most of the activities complained of in 1993 and 1994, so far as they occurred after 10 p.m. and before 6 a.m., were ordinary farming activities. However the frequency of those activities at that time of night was unreasonable, as was the defendant's use of his tractor to check the irrigation at night. The plaintiffs are not required to bear this type of noise because another farmer has so arranged his finances that he feels he cannot afford a cheap vehicle to run between his home and his irrigator in the late hours of the night.

There was no evidence of any injurious affection of the land diminishing the Sherrys' interest in it as a result of nuisance or trespass. However, in Benning v. Wong (1969) 122 CLR at 318, Windeyer J said:

A claim in nuisance involves the infringement of a plaintiff's interest in the enjoyment of land, and it is directed towards preserving the integrity of the benefits attached to the right of possession of land. It does not provide a remedy for mental distress or anguish but for interference with the enjoyment or quiet enjoyment of their land: see, e.g., Oldham v Lawson (No 1) [1976] VR 654 at 658-60. Where noise or light is such as to disrupt sleep or cause sleeplessness, the plaintiff suffers an interference with his land. Nuisance is not an action for causing injury or anxiety to the person. Some of the events pleaded as nuisance do not succeed for that reason. However where the effect of those events was such as to exacerbate the traumatic stress disorder, they are to be taken into account in assessing damages for the tort which caused the disorder, in this case intentional infliction of harm.

Damages for Nuisance

Consequently, some of the nocturnal activities of which the Sherrys complained caused them nuisance. Such activities are discussed in paras. (b), (c), (d), (e), (g), (i), (j), (k), (m) and (p) above. The disturbance by the noise or lights or both of the machinery operating in proximity to their house, which the Sherrys suffered, cannot be wholly explained on the basis of their being surrounded by Mr Dunwoody's canefields or the ramming incident. In any event Mr Dunwoody knew, after that incident, that they did not want him anywhere near them. Having regard to the amenity of the neighbourhood, including the regularity of noise from the cane train (which increased from four times to eight times per night in 1996) and the farming practices which were reasonable at the relevant time, many of the incidents of which the Sherrys complain would have been sufficient to cause unreasonable disturbance to any farming couple of “ordinary sensibility” living in the residence. Such persons, like the Sherrys. would have become accustomed over the years to the noise from the cane train, a noise which was loud, but totally regular, and predictable, and importantly, a noise which did not indicate that persons were approaching the residence.

Although the activities amounting to nuisance peaked in 1994, there was little of which the plaintiffs could complain as the trial of this action approached in 1997. However, the far less frequent disturbances in the nocturnal hours which amount to an occasional unreasonable use of the land in 1995 and on the more rare occasions in 1996 contributed to the nuisance extending over a far greater period than was reasonable. The nuisance caused the Sherrys annoyance and discomfort even if one had regard to their being unable to sleep when woken by the machinery, apart from any mental distress which they suffered. They should not be compensated for the inconvenience caused by the smoke from the cane fire in November 1994. I will have award them $15,000 for nuisance.

Medical evidence

Both Mr and Mrs Sherry claim the collision incident on 30 October 1992 resulted in each of them suffering a post-traumatic stress disorder. The Sherrys did not seek medical treatment for the insomnia, anxiety and depression from which, as I accept, both were suffering, until almost two years after the collision incident. At that stage they had lost the Supreme Court action and been ordered to pay substantial costs. I accept they could afford to pay these costs without hardship.

The evidence of their personalities and characters both before and after the incident proved that prior to the incident both had been happy, personable and well regarded by their peers, and that both had become noticeably unsociable and more reserved or withdrawn after about 1992. Before then, Mrs Sherry was regarded as light-hearted, and described by one witness, Mrs Gray, as “the backbone of the nation” in her willingness to work for various school and church functions and activities. I was not persuaded that in cross-examination Mrs Gray had conceded that she noticed the changes in Mrs Sherry before the incident, but it seemed she was attempting more to explain that she could not fix with due accuracy the number of years since their lands were leased and the number of years since the collision incident. After the collision incident she became much quieter and reticent. She reduced enormously her participation in church activities and undertook more community work. It seems this work was not of the more social or fun kind such as organising or attending fundraising dinners, but was of the more taxing, hands-on type, such as tending to the elderly in their homes. Mr Sherry was described as having been, before the incident, a “go-lucky little fellow”, but after the incident he had appeared to those who knew him as stressed and less sociable. Dr Jacobs, a general practitioner who did not know them before 1994, described Mr Sherry as a stoic, prepared to put up with adversity and someone who would try to make the best of it. Both impressed me as being fairly simple and quite straightforward people who were utterly disinclined to violence and confrontation, but prepared to defend their home and family by all lawful means at their disposal.

Their solicitors probably suggested to Mr Sherry that they might be suffering from post-traumatic stress syndrome and that they seek medical advice. When Mr Sherry told Mrs Sherry of this, she consulted a general practitioner, Dr Harold Jacobs, on 17 August 1994, complaining, relevantly, of stress and insomnia. He prescribed a minor tranquilliser, Diazepam. When she returned on 31 August, he found she was still upset and complaining of insomnia with suicidal thoughts and of being fearful for her own and her family's safety, but was managing to work each day for Meals on Wheels. Dr Jacobs saw Mr Sherry a few days after Mrs Sherry and he spoke to Mr Sherry's solicitor and referred both of them to Dr Christopher Alroe, a Rockhampton psychiatrist, whose report is dated 31 October 1994. On 9 September 1994 Dr Jacobs also prescribed a low dose of an anti-depressant, Prothiaden, for Mrs Sherry, and she was to consult him for therapy on 13 occasions from 17 August 1994 to 13 February 1996. When he first saw Mr Sherry in early September 1994, Dr Jacobs prescribed Diazepam for his anxiety, depression, fear about safety and insomnia. Dr Jacobs was to see Mr Sherry on five occasions in the period up to February 1996 when he also provided supportive psychotherapy and prescribed Prothiaden. The Sherrys now take Prothiaden very occasionally when symptoms trouble them.

The psychiatrist, Dr Christopher Alroe, saw the Sherrys on 25 October 1994. Dr Alroe said in his evidence at the trial that he found them very distressed and anxious, and clearly preoccupied with the collision incident which obviously caused them a great deal of stress when they spoke about it to him. The history they gave and the symptoms reported indicated to Dr Alroe that they were then suffering significant psychiatric symptoms. In his opinion the facts of the incident, as I have found them, were capable of causing a post traumatic stress disorder in each of them. He found that the couple met the formal criteria of post traumatic stress disorder adequately. He was not surprised by the length of the time that had elapsed between the incident and their seeking treatment, as many who suffer those symptoms do not seek medical treatment for quite some time.

In his report of October 1994, Dr Alroe noted their response to deliberate noise making and interference by starting up equipment early in the morning and loading material in their roadway been a significant reduction in their social function and Mrs Sherry's behaving in a totally uncharacteristic manner:

A psychiatrist, Dr Peter Mulholland. was later to confirm Dr Alroe's diagnoses of post traumatic stress disorder, but another, Dr Martin Nothling, thought Mr Sherry had a paranoid personality disorder and Mrs Sherry a mild generalised anxiety disorder.

I was persuaded by Dr Mulholland's opinion. In fairness to Dr Nothling he seemed to have been thoroughly briefed with Mr Dunwoody's version of events before he saw the Sherrys, he did not examine them until December 1996, almost two years after Dr Mulholland when, as other doctors' evidence suggests, the traumatic stress disorder would have been difficult or impossible to diagnose, and thirdly, he was assisted by a clinical neuropsychologist who was unable to clarify many important aspects of her assessment when she gave evidence. In her psychometric personality assessment of Mr Sherry, Ms. Cameron said that those with the MMPI-2 pattern of personality which she found Mr Sherry had “typically do not seek psychological treatment on their own. They strongly mistrust mental health professionals and resist psychological interpretation of their problems.” In Ms. Cameron's opinion Mrs Sherry's profile showed a “psycho-dynamic inverse-related fit with the MMPI-2 profile of her husband”, which pattern was “that she is likely to be somewhat passive, dependent, unassertive and avoidant of interpersonal conflict”:—

Nonetheless neither of the plaintiffs could be found on the evidence to be an unusually psychologically vulnerable person. Despite the depression and anxiety they suffered following the incident and the continual assaults on their peace of mind by Mr Dunwoody's intrusive activities they attempted, and finally succeeded in no small measure in regaining a life in which both were functional - he in cane farming and contracting work and she in the fairly selfless pursuit of hands-on charitable works.

It is convenient to consider the later psychiatric opinions in respect of each of the Sherrys separately.

Mr Sherry

Dr Mulholland examined Mr Sherry on 9 January 1995. He was not surprised that Mr Sherry had not sought medical assistance until two years had elapsed since the ramming incident. His assessment of Mr Sherry was:

This view was borne out by Mr Sherry's demeanour at the trial and a history of lack of enthusiasm for medication prescribed for depression. Dr Mulholland noted from his discussions with Mr Sherry that Mr Sherry was troubled by the incidents concerning Mr Dunwoody and that Mr Sherry was possibly concerned to a greater extent by how emotional and distressed his wife had become about the whole matter. According to what Mr Sherry then told him, Mr Sherry had developed a fear of leaving his property, being concerned about leaving his wife and daughters alone where they might be under threat or in danger from Mr Dunwoody. Dr Mulholland also noted that Mr Sherry had described difficulty concentrating on his work, preoccupation by intrusive thoughts about what Mr Dunwoody might do in the future, and particularly what he might do to Mrs Sherry, that he was troubled by insomnia related to his preoccupation with the Dunwoody issues and by fears in respect of his wife and daughter so that he had avoided talking about Mr Dunwoody, but he had decreased social activities because he was distressed his neighbours might bring up the issue. At that stage Mr Dunwoody was awaiting trial on the criminal charges and Mr Sherry apparently told Dr Mulholland that he had hoped when the criminal trial had finished that the issue would cease but had been disappointed because he believed Mr Dunwoody was still harassing them.

Mr Sherry presented to Dr Mulholland as an “unhappy, worried looking man who was clearly preoccupied with the whole issue. He gave the impression that he was “just hanging on psychologically”. Dr Mulholland said that Mr Sherry described features consistent with his having a post-traumatic stress disorder flowing from the ongoing conflict with Mr Dunwoody and that the events of 30 October 1992 acted as a focus for and were the main precipitant for his post-traumatic stress disorder, which Dr Mulholland thought was being maintained by what Mr Sherry perceived to be the ongoing harassment of his wife and himself by Mr Dunwoody. Dr Mulholland noted that the event of October 1992 was psychologically traumatic, and at that time Mr Sherry was in fear for his life and for the lives of his wife and/or child. Dr Mulholland's opinion was:

When Dr Mulholland spoke to Mr Sherry on 1 October 1997 he was still of the opinion that Mr Sherry had suffered a partial and residual post-traumatic stress disorder which had mostly resolved with his being left with mild residual features. He warned that those emotional issues would be readily capable of being re-ignited so that he would have a relapse if there were unpleasant incidents with Mr Dunwoody. By the time of the trial, in Dr Mulholland's opinion, Mr Sherry was no longer suffering from that disorder.

The plaintiffs were examined at the defendant's request by the psychiatrist, Dr Nothling. Before seeing the Sherrys, Dr Nothling had been briefed with a history provided by Mr Dunwoody, information from Mr Dunwoody's solicitors and the opinions of the doctors who had seen the Sherrys earlier. Dr Nothling examined Mr Sherry on 4 December 1996, as did the clinical neuropsychologist, Ms. Dianah Cameron, who made what she described as psychometric personality assessments of the plaintiffs. Dr Nothling had regard to Ms Cameron's opinion in writing his report. In his opinion, Mr Sherry did not satisfy all criteria for a post-traumatic stress disorder. However, Dr Nothling noted that Mr Dunwoody and Mr Sherry had given substantially differing accounts of how the incident of 30 October 1992 occurred and that if Mr Dunwoody had prior to the second impact, driven into Mr Sherry's stationery vehicle, then that would have been an “understandably frightening experience for Mr Sherry”.

In his view, the ongoing, interpersonal difficulties Mr Sherry experienced with Mr Dunwoody, his reaction to which Dr Nothling thought was based on what he diagnosed as Mr Sherry's having a paranoid personality disorder, had caused Mr Sherry to suffer anxiety. He described the central characteristic of those with paranoid personality disorder as:

Dr Nothling said that Mr Sherry had exhibited the following features which satisfied the criteria for a paranoid personality disorder; firstly, unfounded suspicions that Mr Dunwoody had been exploiting and harming him; secondly, perception of hidden and threatening content in ordinary events or comments; thirdly, persistent bearing of grudges; and finally, preoccupation with unjustified doubts as to the trustworthiness of Mr Dunwoody and his employees. Dr Nothling thought those features were not directly caused by a general medical condition.

Although Dr Nothling thought that Mr Sherry was then probably suffering from a paranoid personality disorder, he had noted in his report of 6 December 1996 that his opinion would be further assisted by information as to “Mr Sherry's lifelong pattern of relating to others and whether he had been distrustful and suspicious of others from early in his adult life”. There was, however, no evidence at the trial of any such pattern, and indeed the evidence pointed inexorably to his not having exhibited such behaviour earlier. At the trial Dr Mulholland gave reasons for not supporting Dr Nothling's diagnosis, and Dr Mulholland's reasons and his diagnosis were more persuasive than Dr Nothling's.

Having regard to the findings relating to the incident of 30 October 1992 and other evidence, the opinions of the psychiatrists generally do not conflict in so far as the relevant criteria of the disorder are satisfied to at least mid 1995. Thus Mr Sherry did suffer a post traumatic stress disorder as a result of the 30 October 1992 incident, this condition had largely resolved by the end of 1996. He did not suffer and does not suffer from a paranoid personality disorder. I accept that he suffered intensely from the after October 1992 to about late 1995. His condition improved with as Mr Dunwoody's more intrusive activities decreased.

Mrs Sherry

In Dr Mulholland's opinion, Mrs Sherry had a post-traumatic stress disorder and a depressive neurosis when he examined her on 9 January 1995. He thought those matters flowed from the events of 30 October 1992 and from the ongoing alleged harassment and aggravation from Mr Dunwoody. He found that she had not been so affected as had Mr Sherry:

Mrs Sherry now spends a few days each week helping the Endeavour Foundation. Meals on Wheels and a community organisation which gives assistance to the elderly by cleaning their houses and so on. When Dr Mulholland spoke to Mrs Sherry on 1 October 1997, he thought that the previously described post-traumatic stress disorder and depressive neurosis had gone into partial remission, probably because she had been subjected to a lesser degree of harassing behaviour by Mr Dunwoody. He did not regard her having spoken to Mr Dunwoody at a church fete or calling to his house to advise him that one of his employees had met with an accident, nor her habit of regularly taking long walks around the district or spending long hours in charitable works as indicating she had not suffered adversely from the incident of 30 October 1992 or the events which followed. He then thought that her future emotional health would depend on the most part on what happened between Mr Dunwoody and her and her husband. If there were no incidents he would expect that Mrs Sherry would gradually improve and be left with only minor residual symptoms, but if there were further incidents he would expect her psychiatric condition “to flare up” with a possibility of relapse into “full blown PTSD or depressive neurosis.”

Mrs Sherry was also examined by Dr Nothling and Ms. Cameron in early December 1996. In Dr Nothling's opinion, irrespective of what caused the accident of 30 October 1992, the incident would have been frightening for her. However, he thought it unusual that she would then have not reported any psychiatric symptoms for about two years following that incident if she had been frightened. He doubted the diagnoses of post-traumatic stress disorder, and in his opinion it did not satisfy all criteria. In his view she suffered from a mild generalised anxiety disorder. Having regard to the evidence of Dr Mulholland and Dr Alroe and the fact that the Sherrys are simple farming people, their waiting until their solicitor suggested they seek medical attention almost two years after the event is quite explicable. The psychiatrists who gave evidence all agreed that in the factual circumstances as I have found them it would be reasonably likely to cause terror in the normal person. She satisfied all criteria of the disorder for more than two years after the incident.

Accordingly Mrs Sherry did suffer from post traumatic stress disorder and depressive neurosis as a result of the collision incident, although her suffering was probably not as severe or as prolonged as that of her husband. She appears to have recovered and it is unlikely she will suffer a relapse now that Mr Dunwoody's farming practices are less obtrusive.

Damages for intentional infliction of harm

The Sherrys are entitled to an award of damages. Both suffered psychiatric injury as a result of the tort. The principle, as applied in Australia (see Bunvan v. Jordan (1936-37) 57 CLR 1 at 11 (per Latham CJ) and at 18 (per Evatt J); Wodrow v. Commonwealth of Australia (1993) 45 FCR 52 at 71), is as stated by Jordan CJ in Bunvan v. Jordan (1936) 36 SR (NSW) 350 at 353:

The observations of Lord Hoffmann in Hunter v. Canary Wharf Ltd [1997] 2 WLR 684 at 709 (with whom Lord Hope agreed at 726) are not to the effect that there was no reason in principle why this tort should not be extended to provide compensation for mere distress, inconvenience or discomfort where there was no actual bodily injury or psychiatric illness. Nor has the law developed in Queensland to such an extent that in issues involving causation and damage, the distinction between ordinary physical injury and psychological or psychiatric injury is illusory.

I am satisfied that neither plaintiff was more susceptible to the mental illnesses from which they suffered after and as a result of the collision incident than would any other ordinary person in the district and that neither was suffering from mental illness or disorder prior to the incident. They were persons of “ordinary phlegm”: Page v Smith [1996] 1 AC 155 at 188-189. Damage is an element of the tort of intentional infliction of harm. Psychological damage suffices, for example, where severe emotional distress is a starting point of a lasting disorder of mind or body, some kind of psychoneurosis or psychosomatic illness which, if it is the result of a tortious act, gives rise to an award of damages: Mt. Isa Mines Ltd v. Pusey (1970) 125 CLR 383 at 394 per Windeyer J. Where a plaintiff has abnormal personality traits, and where the conduct complained of is seen to be incapable of injuring an ordinary person, the defendant will owe the plaintiff no duty to do more or less by reason only of the possibility that the plaintiff, with his abnormally accentuated personality traits, might be affected. There is no liability for nervous shock suffered by susceptible persons unless the defendant was aware, or should have been aware, of “the frailty and susceptibility of a “neighbour” per Windeyer J at 406. Thus in Bunvan v. Jordan, the plaintiff failed even though the defendant's conduct had caused the plaintiff to suffer shock and a resulting nervous condition amounting to illness because on the facts it was found in that case that the harm suffered by the plaintiff was not there reasonably foreseeable. See Levi v. Colgate-Palmolive Ltd (1941) 41 SR (NSW) 48 and Jaensch v Coffev (1984) 155 CLR 549, where Brennan J at 568 said:

However, after the incident there were then special circumstances giving rise to the duty placed on Mr Dunwoody to avoid further injury to the Sherrys because of their susceptibility to the prolongation or exacerbation of the mental injury caused by the incident of October 1992. It was likely that they were especially vulnerable to annoyance and distress from any later intrusive or disturbing activities by Mr Dunwoody, and he knew they did not want him near them. Absent the distress caused by the trespass and by the occasions of nuisance after 1992, and having regard to the award for pain, suffering and loss of amenities relating to post traumatic stress disorder which was considered by the Court of Appeal in FAI General Insurance Co Ltd v Curtain and Anor (unreported, Appeal No 2078 of 1996, 8 August 1997), I award Mr Sherry $25,000 and Mrs Sherry $15,000 as compensation for the mental injuries suffered as a result of the ramming incident. The exacerbation of their condition by the acts complained of which did not amount to nuisance, for example where there was a reasonable user, and which acts could have been avoided, have been taken into account in this award.

Exemplary damages

The next issue which arises is whether the conduct of Mr Dunwoody was sufficiently contumelious that the plaintiffs should succeed in their claim for exemplary damages. Reliance is placed upon the decision of the High Court in Lamb v Cotogno (1987) 164 CLR 1. In the reasons for judgment, reference was made to Uren v. John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 where the Court had affirmed that in actions for tort, exemplary damages may be awarded for conduct which is sufficiently reprehensible. The High Court confirmed, at 8, that the well-settled approach in Australia extends exemplary damages to a wide range of torts. In exercising the principles to be derived from earlier cases the Court adopted the description of exemplary damages contained in Mayne & McGregor on Damages, 12th ed., (1961) at 196:

The Court quoted with approval the passage from the judgment of Brennan J in X L Petroleum (NSW) Pty Ltd v. Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 471, that:

The Court also referred, at 9-10, to the object or the effect of exemplary damages being not wholly punishment, and the deterrence which is intended, extending beyond the actual wrongdoer and the exact nature of his wrongdoing. In speaking of exemplary damages being awarded in order that a defendant shall not profit from his wrongdoing, the Court also mentioned the element of appeasement in awarding exemplary damages, “that they serve to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace ... the element of appeasement, if not compensation, is present.”

However it has been emphasised that findings of contumeliousness are not lightly to be made. It appears also that the remedy of exemplary damages is not to be diluted by awarding them for tortious conduct merely because it has been repetitious. The conduct of the defendant must be of considerable seriousness and deliberation to warrant this remedy and to amount to the kind referred to in Lamb v Cotogno (see, for example, Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reports 81-397; Gazzard v Hutchesson (1995) Aust.Torts Reports 81-337).

It seems to me that some of the conduct of the defendant amply justifies an award of exemplary damages and that only one period of the defendant's impugned conduct, that from 1993 to the end of 1995, warrants this finding. This is the conduct which was particularly oppressive and arbitrary. Some of the offending conduct which occurred before the collision incident in 1992, such as the 1991 trespass involving the irrigator, was deliberate and insolent and may have upset the plaintiffs. The defendant persevered in his defence of this trespass until late in the trial, as did, it should be said, the plaintiffs in their claims of trespass regarding the electric fence. In my view exemplary damages are not called for in respect of such conduct during that period prior to the collision incident. Nor should they be awarded for the collision incident firstly, as the general award has been made for the intention infliction of harm and its sequelae, and more importantly, because the deterrent aspect was addressed by the jury's verdict and the sentence imposed for the criminal offence arising out of the incident.

The second period for consideration is from early 1993 to the delivery of the entry of appearance and defence in this action in November 1995. The defendant admitted at the trial that from January 1993 he knew that the plaintiffs did not want him anywhere near them and further the type of behaviour which was distressing the plaintiffs had been spelled out in the plaint. Nonetheless during much of this period some of the tortious acts he committed or permitted were high-handed, wanton and provocative, such as that involving the rifle shots and the movement of machinery around the residence at night without any pattern or predicability, and for no acceptable reason having regard to relevant farming practice. I do not include the August 1994 trespass in the conduct which attracts exemplary damages as the plaintiffs did not prove that it was the defendant, rather than his agent or employee, who drove the tractor. During the final period, up to about six months before the trial began, some of the offending behaviour continued, although it was nowhere near as serious or as frequent as it had been in the second period. No doubt the diminution of the offending behaviour was mainly due to the defendant's acquisition of Lot 300.

Thus some award should be made for his contumelious conduct during the second period, after discounting the amount that otherwise might have been appropriate in respect of the appeasement element of the award. It is highly unlikely that either of the plaintiffs would be tempted to take revenge of a kind which would be likely to endanger the peace. It could not be said that the plaintiffs always turned the other cheek, viz. some of their complaints to the authorities and their more niggardly, no doubt, to emphasise their sovereignty over their land. However the plaintiffs have shown that they have utter respect for the law, the authorities and the processes of the law. Consequently an award of $5,000 is sufficient to indicate condemnation of the defendant's behaviour during the second period.

The plaintiffs did not purse their claim for aggravated damages.

Claim for Injunctive Relief

Mr Dunwoody's purchase in 1995 of Lot 300 has resulted in his modifying his farming practices. He has now established a base there for tractors and supplies. At least since then, he travels to Lot 1 and Lot 300 by utility. He no longer works the early roster. The occasions when his nocturnal farming annoyed the Sherrys diminished after 1995 so that by 1997 there were few occasions when they were annoyed by him. Consequently there is no proper basis upon which the injunctions could be granted.

Excluding interest which is to be calculated on all but exemplary damages, there will be judgment against the defendant in the sum of $70,000, as follows

I will hear argument as to the amount of interest to be awarded.

Costs should follow the event.