District Court finds operator of crop duster aircraft strictly liable for damages to a cotton crop under Damage by Aircraft Act 1999

The District Court of New South Wales has considered the application of the Damage by Aircraft Act 1999 (Cth) in the recent case of Hardy Irrigation Pty Ltd v Leeton Aerial Ag Pty Ltd [2025] NSWDC 389.

This  case concerns a claim by the owner of an agricultural farm, Hardy Irrigation Pty Limited (Hardy), against a crop-dusting business known as “Mas AG” which is collectively two related companies, namely  the first defendant, Leeton Aerial Ag Pty Limited which enters into contracts to do crop-dusting and the second defendant, JN Aviation Pty Ltd, which owns and operates the aircraft used to do the spraying.

Hardy claimed that its cotton crop was severely damaged shortly after the aerial spraying, alleging that the Defendants mistakenly mixed a herbicide that is highly toxic and destructive to cotton, especially young cotton, 2,4-D, with Weedmaster, the intended herbicide, and that this caused the damage to the crop.

Hardy sought to recover damages for breach of contract, negligence and pursuant to the Damage by Aircraft Act 1999 (Cth).   

The primary issue for determination was whether the second Defendant’s aircraft had in fact sprayed Hardy’s fields with 2,4-D. In determining that the fields had been sprayed with 2,4-D by the aircraft, Justice Newlinds considered the Defendants’ submission that Hardy had failed to produce adequate evidence to prove the Defendants had caused the damage. 

While the Court accepted that Hardy ‘could have marshalled better evidence to prove its case but did not carry out the relevant investigations at the time to allow it to do so’, it was held Hardy had proved on the balance of probabilities the crop had been damaged by 2,4-D and the Defendants will liable for this loss.  

The Court found the first Defendant liable for breach of contract on the basis that it was ‘self evident’ in light of the finding that 2,4-D had been sprayed on Hardy’s fields, but declined to impose liability in negligence as Hardy failed to demonstrate any breach of duty and it was possible that the incorrect chemicals had been sprayed through no fault of the Defendants.  

Furthermore, the Court considered the second Defendant’s liability under the Damage by Aircraft Act 1999 (Act), which imposes strict liability on owners and operators of aircraft for damage caused to any person or property by “an impact” with a “thing” that “dropped” or “fell” from an aircraft (see section 10) regardless of fault.  In considering whether the Act applied to crop-dusting, the Court observed that:

136.      Uninstructed by authority, I would doubt that the legislation was designed to capture a circumstance of crop-dusting where what is happening, as a result of a contractual arrangement, is that chemicals are being “dropped” or are “falling” from an aircraft, which chemicals are “impacting” on crops by landing on them, all of which is happening because the owner of the crops has asked the owner of the aircraft to spray chemicals on his or her crops.  The “accident” being the incorrect chemicals being sprayed.  In other words, the “dropping” or “falling” was not accidental.  Rather, what was “dropped” or “fell” was accidentally the wrong substance. 

However in light of the authorities in Bootle v Barclay [2013] NSWCA 142 and N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2013] NSWSC 309 which are to the effect that the Act applies to circumstances of chemicals from crop-dusting aircraft damaging crops and accordingly held the second Defendant was also liable under the Act. 

This judgment confirms that an action under the Damage by Aircraft Act 1999 is available where chemicals sprayed in the course of crop-dusting cause damage to crops regardless of any proven fault on the part of the aircraft operator. Furthermore, it is also important to note that if the aircraft operator was able to prove that another person had caused, or contributed to crop damage, for example the herbicide supplier or manufacturer, it would have a right to seek contribution under section 11B of the Act.

Contacts 

Keira Nelson
+ 61 2 9230 9440
keira.nelson@nortonwhite.com

Nick Humphrey
+61 2 9230 9437
Nick.Humphrey@nortonwhite.com

Bo Reynolds

+61 2 9230 9444

Bo.Reynolds@nortonwhite.com