Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd

The defendant, contract sprayer, was sued in relation to damage to crops occurring some 20 kms from where he was applying spray.  In relation to the application of ss.9 and 10 of the Civil Liability Act, it was held that whether or not the defendant has taken reasonable care must be judged prospectively and not with the wisdom of hindsight, however, it remains necessary for the statutory criteria to be applied in every case where the sections apply.   Section 9(1)(b) of the Civil Liability Act changed the law in relation to the degree of probability which had to be shown before it could be said that a risk was foreseeable.  The statutory test is whether or not the risk was “not insignificant”.  The onus rests upon the defendant to establish that “the damages should be reduced because there are concurrent wrongdoers who are liable to the plaintiff because their act or omission has caused the loss or damage”.  The defendant must show that the act or omission of a third party has also independently caused the relevant loss.