The decision
In GEJ & MA Geldard Pty Ltd v Mobbs (No 2)1, the plaintiff claimed that its cotton crop had been damaged by the aerial spraying of various herbicides on nearby cattle properties. The plaintiff sued eight defendants (the first five being the owners and managers of the cattle properties, the sixth being the aerial spraying company, the seventh being the chemical supplier and the eighth being the director of the sixth defendant and the pilot who flew on the day that the spraying took place).
Prior to the trial, the plaintiff settled the proceedings against all defendants except for the sixth and eighth defendants. The trial proceeded against the sixth and eighth defendants with the trial judge finding in favour of the plaintiff against them both. A further hearing was had in relation to the apportionment of responsibility between all defendants and a second pilot (who was not a party to the proceedings).
Ann Lyons J found that it was for the sixth and eighth defendants (not the plaintiff) to prove that the other defendants and the second pilot were concurrent wrongdoers. This finding accords with the decision of Middleton J in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd2 in which his Honour said:
The difficulty for the sixth and eighth defendants was that the other defendants had not taken part in the trial. The sixth and eighth defendants sought to rely on the pleadings. However, her Honour followed the Reinhold case3 in which Barrett J held that a person will be a concurrent wrongdoer only if the court makes findings about the existence of loss or damage and about which acts or omissions caused the loss or damage. His Honour also said that the nature of a "claim" for the purposes of the apportionment provisions is determined by what the court has decided in the case, not by what might be pleaded in an initiating process.
Her Honour had not made any findings in respect of the first to fifth or the seventh defendants such that the findings would identify any of them as persons whose acts or omissions caused the plaintiff's loss. Her Honour said that even if she accepted the submission that the pleadings could be relied upon, "I do not consider that the pleadings in this case establish the matters I need to be satisfied about".
The critical issue was that there was no evidence to enable Ann Lyons J to find that the other defendants or the second pilot were concurrent wrongdoers.
Implications
The case illustrates the difficulties faced by a defendant in proving that a person is a concurrent wrongdoer where that person is either a defendant with whom the plaintiff has compromised the claim or the person is not a party to the proceedings.
A defendant faced with such a scenario will need to determine what evidence it can lead to satisfy its onus of proof and limit its liability to the plaintiff under the apportionment legislation.
[1] [2011] QSC 33.
[2] (2007) 164 FCR 450.
[3] Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187.
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