1. Smoke taint

1.1 Southern Properties (WA) Pty Ltd v Ex. Dir Dept of Conservation and Land Management WASC 2010

  • Manjimup/Pemberton Warren Region
  • 926,000 ha State Forest
  • 80 years of prescribed burns
  • 1961 Dwellingup fires – Royal Commission

1.2 Fire risk

  • Sources – humans 90%, lightning 10%
  • Fuels – vegetation, dry matter, tree type
  • Weather – summer drought, prevailing winds

1.3 Management

  • Government policy 200,000 ha/year to be burnt
  • Fallen behind in 2003 and backlog of 452,000 ha
  • Limited opportunities Karri Forest burning

1.4 Experience up to 2001

  • No reports of smoke/ash affecting vineyards/wine to Department of Environment and Conservation (D.E.C.) pre 2001
  • 2001 fires near Barwick vineyards
  • Resultant wines rejected August 2001

1.5 Studies

  • AWRI Report 2003
  • Studies 2007, 2008 confirmed that smoke can contaminate vines and berries

1.6 2004 fire

  • Notification by D.E.C. of burn to take place on 31 March (favourable conditions)
  • Edge burn 31 March
  • Core burn 1 April
  • Winds changed
  • Smoke covered the vineyard for 7 days
  • Ash for 3 days

1.7 2006 injunction proceedings

  • Notification by D.E.C. of a further burn to take place in February 2006
  • Injunction sought and rejected:
    • Damages adequate remedy
    • Public interest

1.8 2005 proceedings

  • Damages (quantum agreed)
  • Injunction to restrain lighting fires until after harvest each year
  • Causation not disputed

1.9 2009: the hearing

Plaintiff's case:

  • Duty of care not to harm Plaintiff's vineyards
  • Heightened due to the dangerous nature of the activity

1.10 Decision in 2005 proceedings

Justice Murphy:

  • The fire was not the product of negligence
  • Strategy/policy sanctioned by legislation
  • No common law duty owed by Defendant to Plaintiff
  • Defendant did have regard to Plaintiff's grapes in its planning
  • Defendant had no duty of care to avoid smoke taint
  • A reasonable person in the position of the Defendant would not have deferred the burn

2. Spray drift

2.1 Landsdale Pty Ltd v Moore WASC AC 2009

  • Defendant a vineyard operator
  • Plaintiff farms marron (freshwater crustaceans)
  • Plaintiff alleges that in the periods December 2002 to March 2003 and October 2004 to March 2005 escape of chemicals sprayed on the vineyard caused marron deaths on its property
  • Plaintiff claims breach of Defendant's duty of care to prevent chemical sprays escaping causes losses of $8m
  • Defendant denies negligence and maintains that spraying has been done in accordance with guidelines, by a skilled operator. Did not admit that winds carried spray and says that even if it did the amount that drifted would not cause the damage alleged
  • Interlocutory Procedural issue before the Court – order that a single trial be held on questions of liability and damages

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.