WA Organic Farmer Loses Appeal Against Neighbour GM Farmer
Tuesday 8 September 2015 @ 12.59 p.m. | Legal Research | Torts, Damages & Civil Liability
Western Australian organic farmer Steve Marsh has lost his appeal for damages over the contamination of his land with genetically modified canola from his neighbour, Michael Baxter. The 2-1 majority decision (Marsh v Baxter [2015] WASCA 169) was handed down last week (August 2015) in the Supreme Court of Western Australia, and upheld the earlier judgment of Justice Martin.
Mr Baxter told ABC News after the case that he had “never doubted all the way through that were probably going to be on the winning side”, saying he was inconvenienced by red mite, aphids and rust as a result of Mr Marsh’s organic practices but chose not to complain about it.
Mr Marsh told ABC News he would consider a High Court appeal, and said:
“I guess what this has demonstrated is that common law does not protect farmers against GM contamination, that’s obviously very clear. This argument that it’s like a leaf blowing next door or something blowing next door, it’s quite ridiculous.”
Case Background
Mr Baxter and Mr Marsh had adjoining properties, on which they carried out farming practices. Mr Marsh had his farm certified organic by NASAA Certified Organic Pty Ltd, and Mr Baxter farmed genetically modified canola (GM canola) in an agreement with Monsanto. When Mr Baxter harvested his canola in November 2010, he hired a contractor who swathed the harvest, a different method to that used in previous years. After the harvest, Mr Marsh found GM canola present on his land, and his organic farm certification was revoked. Mr Marsh sued Mr Baxter for negligence and nuisance leading to pure economic loss. See TimeBase’s earlier article for a thorough discussion of the original case.
Majority Decision
In a joint decision, Justices Newnes and Murphy upheld the earlier judgment, finding that the damage done to Mr Marsh was not reasonably foreseeable by Mr Baxter. They found [at 695]:
“The respondent was not in breach of the Monsanto licence and on the unchallengeable findings of fact by the judge, the swathing was done in the legitimate pursuit of the respondent's interests.”
They also found that Mr Baxter had “sound financial and farming reasons for swathing his canola crop” and that the onus was on the appellants to prove this was negligent [at 745].
In regards to the nuisance claims, the judges found that Mr Baxter’s use of swathing was not unreasonable, but was the preferred method of harvesting in the surrounding district. They found the use of swathing was not an interference beyond what an ordinary resident of the district would expect, saying at [785-6]:
The fact that the appellants chose, for their own, presumably commercial, reasons, to conduct their farming operations subject to contractual conditions of that kind, did not mean that the lawful use by neighbouring landowners of their own land in a way which affected the appellants' ability to comply with those conditions, constituted a wrongful interference with the appellants' use or enjoyment of their land…
The appellants were, of course, entitled to enter into arrangements which had the effect that their land was being put to an abnormally sensitive use, but their neighbours did not then fall under an obligation to limit their farming activities on their own land so as not to interfere with that use of the appellants' land.”
Dissent
President McLure dissented from the judgment and would have allowed the appeal, finding that organic farming was not “hypersensitive”, noting that the organic farming was regulated by a Commonwealth backed regime and was a recognised market. She found that there was “uncontradicted expert evidence… that direct heading is the better and more responsible practice when GM canola needs to be contained. [at 292]” and that the respondent would not have suffered any prejudice by using this method.
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