Potato farm liable for €88,000 damage to orchard caused by herbicide drift, court rules

A north Dublin potato farmer must pay €88,000 to a neighbouring grower whose apples were damaged by herbicide that blew across from a field into the orchard, the High Court has decided.

In a ruling on Friday, Mr Justice Anthony Barr found Michael Hoey and Country Crest Farming Ltd were legally liable for damaging apples grown by John Donnelly and Sons Ltd at Oldcastle, north Dublin, in 2011.

He accepted evidence from the plaintiff’s expert witnesses that good practice at the time required that herbicides, such as Spotlight Plus, which was used in this case, should not be sprayed in very windy conditions as they are much more likely to drift on to non-target areas.

He found it was windy on September 10th, 2011, with the wind blowing from a southwesterly direction. Country Crest’s experienced employee, one of more than 400 in the firm, acted negligently in spraying the chemical on that day, the judge held.

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“It ought to have been readily apparent to him, had he been taking reasonable care, that by carrying out such spraying operations, he would expose neighbouring landowners to a foreseeable risk of injury,” Mr Justice Barr added.

The judge said an experienced crop sprayer should have known this, particularly given the Spotlight Plus container bore a label warning that “spray drift” should be avoided as some non-target plants are sensitive to the chemical.

John Donnelly and Sons claimed a large portion of its 2011 apples could not be sold into shops for sale to the public as intended as they had visual blemishes, the judge said. Instead, it said, the apples had to be sold for processing and for cider, causing the company to lose €88,243 in profits.

The operator of the family business, Donnacha Donnelly, claimed he observed spraying on the Country Crest field on September 10th and was surprised it would occur on that day due to high winds.

He said he noticed spotting on many of his apples on September 17th, 2011, with this being more prevalent near the boundary of the defendants’ field. He said the inner side of the apples that faced towards the tree trunk and portions covered by leaves were largely unaffected.

The judge said Mr Hoey and Country Crest acknowledged there was damage to the apples but alleged it was spread evenly throughout the 70-acre orchard. Damage by spray drift, the defendants said, would leave an uneven pattern. Instead, they alleged Mr Donnelly over-applied calcium chloride to the apples in July and August 2011.

Mr Hoey, who founded his company in 1993 with his brother, said he and an employee went to Mr Donnelly’s farm after being contacted about the speckling. He told the court he noted the damage appeared to be uniform on the apples, with very little damage to any leaves.

His insurers initially dealt with the defence of the claim but, after receiving two expert reports, he later elected not to claim under his policy as he wanted to fully defend the case, said the judge.

Mr Justice Barr accepted evidence from Mr Donnelly and another witness for the plaintiff that it was a very windy day. He said they recalled attending their nephew’s christening celebration that day when a gazebo in the garden was partly blown down. This evidence was supported by data from the weather station at Dublin Airport.

He found as fact that the damage to the orchard was more severe in areas closer to the potato field.

Taking all the facts together, he was persuaded that, on the balance of probabilities, the damage was caused by spray drift.

He ordered judgment of €88,243 in favour of the plaintiff. The judge gave a preliminary view that the plaintiff is entitled to have his legal costs paid.

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