Marsh v Baxter [2014] WASC 187: Genetically Modified v Organic

Wednesday 4 June 2014 @ 11.47 a.m. | Legal Research | Torts, Damages & Civil Liability | Trade & Commerce

In Marsh v Baxter [2014] WASC 187 (28 May 2014), canola farmer Michael Baxter was accused of contaminating his neighbour, Steve Marsh's organically grown crops with genetically modified canola. Mr Baxter has won the case in what is being described as a "landmark" decision in the West Australian Supreme Court. In the case Justice Kenneth Martin found that Mr Baxter could not be held responsible just for growing a Genetically Modified (GM) crop in a conventional way.

Background

The background to the case was that Mr Baxter a canola farmer was sued by his neighbour, Mr Marsh, an organic "certified" farmer. Mr Marsh alleged his farm in the Great Southern region of WA was contaminated by the GM material blown onto his property from Mr Baxter's farm land. Further, Mr Marsh claimed the contamination caused him to lose his organic certification on more than half his Kojonup property for almost three years.

The two farmers' properties are separated by a single road. Mr Marsh's lawyers argued that the selection of  the crop, its location and the method of harvest contributed to the contamination of Mr Marsh's land and also argued that Mr Baxter's decision to harvest into swathes, rather than taking the seeds directly from the paddock using a "direct heading" method, created a foreseeable risk.

In reply, Mr Baxter's lawyers argued their client was simply exercising his right to grow a crop judged safe and legal by the WA State Government. They also argued Mr Marsh's land could only be said to have sustained contamination if his own crops of wheat and oats had been genetically modified, or if GM material had been mixed in with the end product - neither of these events had be show to have happened.

The case against Mr Baxter was argued on the basis of a negligence action where it was alleged a duty of care had been breached which had resulted in a "purely economic loss" involving no physical injury to persons or property.

Argument in the case involved consideration of the concept of private nuisance resulting in the unreasonable interference with the "use or enjoyment" of an interest in land. The nature of interference was considered as was the question whether the Civil Liability Act 2002 (WA) especially sections 5B and 5C dealing with duty of care and causation applied.

The Courts Decision

Justice Kenneth Martin in his judgment summary says:

"The end of season winds and the blowing of swathes from Sevenoaks eastwards into Eagle Rest had not been an outcome intended by Mr Baxter, . . . Even so, no physical injury whatsoever had been sustained at Eagle Rest in consequence . . . Mr Baxter was not to be held responsible as a broad acre farmer merely for growing a lawful GM crop and choosing to adopt a harvest methodology (swathing) which was entirely orthodox in its implementation".

In other words, Mr Baxter could not be found to be responsible for the alleged damage to Mr Marsh just for growing a GM crop in a "conventional way".

His Honour commented that: "No basis in principle was shown to extend the law to these events, . . .".  Further, there was nothing to show Mr Baxter had acted negligently, either by growing or swathing his lawfully grown GM crop in 2010.

Reaction to the Decision

The ABC News reports Mr Baxter as commenting that the decision "gave other farmers in Western Australia more certainty". Mr Marsh, on the other hand, is reported by the ABC as "express[ing] his disappointment in the decision" indicating he would need time to consider whether to appeal the decision saying:

"There is a lot of implications for agriculture in this decision."

The reaction of Pastoralists and Graziers Association's John Snooke is reported as being that the decision "gave certainty to the mainstream agricultural industry" while the Network of Concerned Farmers' spokeswoman Julie Newman is reported as saying that her group would push for an appeal against the decision saying further that:

"All the economic loss is to be passed to the non-GM farmer, . . . is not fair or equitable, which is what [the] law is meant to address. . . It should never have been farmer versus farmer. . .There is no winner here; the Government should have addressed this issue prior to it [GM canola] being released."

What Next

In his article on the case for The Conversation, Michael Jones (Professor, Agricultural Biotechnology at Murdoch University) says:

"The case has prompted strong reactions, but my view is that the verdict is a victory for common sense."

Professor Jones points out that while looking straightforward the case has many ramifications. Seen as a "cause célèbre" for the anti-GM movement in Australia and overseas, if the judgement had gone against Mr Baxter it would have set many other farmers against one another. In professor Jones' view:

"The reasons for activists’ anti-GM stance are almost always political and ideological, rather than scientific".

He concludes by saying:

"In a world in which 12% of the world’s crops are now GM, and where up to 70% of foods in our supermarkets have some GM content (virtually any product derived from soybean, maize or cotton), it is important that we can progress past issues like that raised in the Marsh v Baxter case, and use the best science and technology to ensure sustainable and nutritious food production."

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