Marsh v Baxter

[2014] WASC 187

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Tort Law
2. › Nuisance
3. › Private nuisance
4. › Unreasonable interference with use or enjoyment of land
5. › Nature of interference
6. › Whether incursion of physically benign substance constitutes unreasonable interference
7. › Whether lawfulness of defendant's conduct relevant
8. › Whether loss caused by third party's contractual decision breaks chain of causation
1. Tort Law
2. › Negligence
3. › Duty of care
4. › Pure economic loss
5. › No physical injury to persons or property
6. › Whether duty of care owed by neighbouring farmer to avoid economic loss from loss of organic certification
7. › Vulnerability
8. › Whether vulnerability arising from plaintiff's own contractual arrangements is cognisable vulnerability
9. › Civil Liability Act 2002 (WA), s 5B, s 5C
1. Tort Law
2. › Negligence
3. › Causation
4. › Legal causation
5. › Intervening cause
6. › Whether organic certifier's decertification decision was the legal cause of economic loss rather than defendant's swathing
7. › Civil Liability Act 2002 (WA), s 5C
1. Tort Law
2. › Nuisance
3. › Private nuisance
4. › Whether Civil Liability Act 2002 (WA) applies to cause of action in nuisance

Quick Take

The incursion of physically benign genetically modified crop material onto a neighbouring organic farm does not constitute actionable private nuisance or negligence where the economic loss flows from a third-party certifier's decertification decision rather than from physical damage. Vulnerability arising from a plaintiff's own contractual arrangements with an organic certifier is not cognisable vulnerability for the purposes of a duty of care analysis in pure economic loss cases. Organic farmers who suffer loss from decertification following GM incursion may need to pursue contractual remedies against their certifier rather than tortious remedies against the neighbouring farmer.