Bonny Glen Pty Limited v Country Energy [2009] NSWCA 26

Bonny Glen Pty Limited v Country Energy [2009] NSWCA 26

Country Energy's breach destroyed a windbreak that protected Bonny Glen's orchard and created a real spray drift management problem. Bonny Glen acted reasonably, after neighbour concerns and expert advice, in ceasing to spray and removing the affected apple trees, so Country Energy's breach was a material cause of the economic loss. Loss to an orchard business from loss of a windbreak, including loss caused by spray drift problems, was a foreseeable kind of damage. The primary judge erred in rejecting liability for economic loss and also erred in the contingent assessment of quantum, which the Court reassessed by reference to business performance, yields, prices and vicissitudes.

Jurisdiction
Australia
Judgment Date
24 February 2009
Procedural Posture
Appeal and Cross Appeal in Negligence Proceedings Concerning Property Damage, Pure Economic Loss and Damages / New South Wales Court of Appeal From the District Court Decision of Gibson DCJ Dated 31 August 2007
Outcome
Appeal allowed; cross-appeal allowed; judgment increased for Bonny Glen against Country Energy.
Legal Topics
['pure Economic Loss' 'causation' "reasonable Response to Defendant's Negligence" 'foreseeability of Damage' 'assessment of Damages' 'cross Appeal Procedure' 'interest']
['torts' 'negligence' 'damages' 'civil Procedure'] ['pure Economic Loss' 'causation' "reasonable Response to Defendant's Negligence" 'foreseeability of Damage' 'assessment of Damages' 'cross Appeal Procedure' 'interest']

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Procedural Posture

Appeal and Cross Appeal in Negligence Proceedings Concerning Property Damage, Pure Economic Loss and Damages / New South Wales Court of Appeal From the District Court Decision of Gibson DCJ Dated 31 August 2007

Legal Issues

  1. 1 ["Whether Bonny Glen's pure economic loss from removing apple trees after the destruction of a windbreak was recoverable" "Whether loss caused by voluntary action taken by Bonny Glen in response to Country Energy's negligence was caused by that negligence" 'Whether the economic loss was of a kind foreseeable by Country Energy' 'Whether the primary judge erred in calculating the quantum of economic loss' "Whether Country Energy's challenge to the contingent damages assessment was properly brought by cross-appeal"]

Ratio Decidendi

Country Energy's breach destroyed a windbreak that protected Bonny Glen's orchard and created a real spray drift management problem. Bonny Glen acted reasonably, after neighbour concerns and expert advice, in ceasing to spray and removing the affected apple trees, so Country Energy's breach was a material cause of the economic loss. Loss to an orchard business from loss of a windbreak, including loss caused by spray drift problems, was a foreseeable kind of damage. The primary judge erred in rejecting liability for economic loss and also erred in the contingent assessment of quantum, which the Court reassessed by reference to business performance, yields, prices and vicissitudes.

Court Disposition

Appeal allowed; cross-appeal allowed; judgment increased for Bonny Glen against Country Energy.

Orders

  • ['Appeal allowed.' 'Cross-appeal allowed.' "Order Country Energy to pay Bonny Glen's costs of the appeal." "Order Bonny Glen to pay Country Energy's costs of the cross-appeal, and Bonny Glen to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified." 'Judgment for Bonny Glen against Country...