JUDGMENT No. 154733 | CATCHWORDS TRADE PRACTICES ~ claim for damages - causation - whether one should infer causal connection from time sequence. DAMAGES - certainty of proof - whether damages must be despite deficiencies in evidence. Trade Practices Act 1974, s.52 R.A. Wright and Sons v. Amalgamated Chemicals Limited & Anor Qid G8 of 1987 PINCUS J. _ 8 APRIL 1988 . a 2, 7 X% * * it iS sy Lon i "e &, fm Sb ti YZ I rey SS be SR - assessed Wy IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G8 of 1987 DIVISION ) BETWEEN: R.A. WRIGHT SON Applicant AND: AMALGAMATED CHEMICALS LIMITED First Respondent AND: BO! FARMERS CO-OPERATIVE ASSOCIATION LIMITED Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 8 APRIL 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the respondents' costs of and incidental to the proceedings to be taxed, other than the costs relating to the evidence of the witnesses whose affidavits are numbers 47 and 67 in the Court files. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. a aw IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G8 of 1987 GENERAL DIVISION ) BETWEEN: R.A. WRIGHT AND SONS Applicant AND: AMALGAMATED CHEMICALS LIMITED First Respondent AND: BOWEN FARMERS CO-OPERATIVE ASSOCIATION LIMITED Second Respondent PINCUS J. 8 APRIL 1988 REASONS FOR JUDGMENT The applicant firm sues for damages for breaches of s.52 of the Trade Practices Act 1974 and breach of contract. Its case is that the respondents supplied a fertiliser called "Foli-Fert" which was contaminated with herbicide; on being sprayed on the applicant's tomato seedlings, the contaminated fertiliser destroyed many of them, causing severe loss of production. Although much time was saved by use of affidavits, the case took nine days, its length being partly due to the fact that so many experts were called; in particular, eight chemists gave evidence. In retrospect, it can be seen that orders might, with advantage, have been made limiting the number of experts called on each side. The applicant firm consists of two brothers, Stephen and Mark Wright, who carry on an extensive vegetable farming business in the Bowen district. The first respondent made the fertiliser complained of, and the second respondent sold it to the applicant. It is, in effect, admitted by both respondents that if the fertiliser was contaminated as alleged, and thereby caused damage, the applicant is entitled to recover against them, under the Act or otherwise. It is further, in effect, admitted that as between the respondents the second is entitled to indemnity from the first in respect of any liability held to exist. These concessions make 1t unnecessary to analyse the pleadings in detail, but one point should be made about them: the applicant's pleading attributes the damage complained of to the presence in the fertiliser of the herbicides 2,4,5-T and 2,4-D. As fought, the case was really concerned with the former herbicide rather than the latter, but was not extended so as to advance a general complaint that something in the fertiliser must have been noxious to the tomato seedlings. That is of some importance. The fertiliser complained of was called "Foli-Fert" and had been purchased by the applicant in seasons prior to that in which the damage occurred. When previously purchased, according to some evidence given, it was different both in colour and texture from the fertiliser which, on the applicant's case, did the damage. There is no suggestion in the evidence that those differences were due to the presence of herbicide. What might be described as an innocent explanation of the difference in colour was advanced on hehalf of the respondents, but whether that explanation be correct or not is not an important question. For the applicant's case as pleaded, and as advanced in Court, was a complaint of the presence of a very small quantity of herbicide - not of the presence of any substance which might have caused a difference in colour or texture. On the evidence of a chemist, Mr M.F. Robins and that of his assistants, Messrs Constable and Soper, samples of the impugned fertiliser contained a little less than ome part per million of 2,4,5-T. The applicant's case was that it applied 210 grams of fertiliser in dissolved form on each of two occasions - firstly to 40,000 seedlings, and later to those same seedlings plus another 40,000. Assuming that Robins' evidence provides an accurate guide to the quantity of 2,4,5-T present, there was an application, on the average, of less than a ten-millionth of a gram to each plant on the first application and half that on the second. On the applicant's case, assuming Robins' analyses fairly represented tke degree of contamination, the amount of herbicide in both applications was, in total, about one hundred-thousandth of an ounce. It will be seen that the degree of contamination alleged is slight and the quantities of noxious material being spoken of are minute. None of the scientific witnesses called had any personal experience of the effects of application of such tiny amounts of herbicide, nor was any scientific literature bearing directly upon that problem referred to. As will appear, however, the applicant relied, in addition to evidence of chemical analysis, upon evidence that, immediately before application of the fertiliser, the seedlings were in good condition and shortly afterwards they were not. Facts - General The principal witness called on behalf of the applicant was the partner responsible for the seedlings, Mr Mark Wright. His evidence was to the effect that the partnership has seven vegetable farms in the Bowen district, in this State. The one on which the seedlings in question were being grown is located at Collinsville Road; it is a farm which has 90 arable acres. The business is a large one which has operated for many years. Its gross income in the year in question (1986) was about $1 million. The practice of the business at relevant times was alleged to be not to buy seedlings from other nurseries, but to grow them in the applicant's own nursery. For that purpose, the applicant uses trays of plastic containers in which seedlings are grown placed upon racks, with provision for watering from fixed pipes. It had been found by experience that the first respondent's product "Foli-Fert" worked well as a fertiliser for the seedlings and tests had been done to determine the best mode of application. The Foli-Fert was bought in 25 kilogram kegs, two of which were used per season. The method of application to seedlings was to place 210 grams of the fertiliser in 5 litres of water and thoroughly dissolve it, and then spray the solution, further diluted, on the seedlings. On the following day fungicide and insecticide would be applied. Ve The Foli-Fert was applied in a fan jet spray by means of a "venturi action" applicator, mixed with 50 litres of water. After completion of the spraying with fertiliser, about 560 litres of water would be sprayed onto the leaves over a period of seven minutes. Mark Wright gave evidence that on 17 April 1986 a new keg of Foli-Fert was purchased and that was immediately applied to some 40,000 seedlings. They did not thrive after that, but, not appreciating that the Foli-Fert caused the problem, he made a further application of Foli-Fert to those 40,000 seedlings and another 40,000, on 28 April. Ultimately, both lots of seedlings were extensively damaged, according to the applicant's case. It was said by Mark Wright that some replacement seedlings were bought, but the applicant's growing programme did not recover from the setback, resulting ina loss of production and associated losses initially estimated at about $117,000 - later somewhat reduced. Mark Wright said that he took some of the damaged seedlings on 1 May 1986 for inspection by a Mr Meurant of the Department of Primary Industries, at Bowen. It appears that Meurant did not identify the problem for him. Accordingly, on 8 May the applicant bought some more Foli-Fert. It was then noticed that the second keg had, in common with the first, the differences in colour and texture mentioned above. Analyses of the kegs were done, in which, according to the applicant's case, small quantities of 2,4,5-T were found. Mark Wright reached the conclusion that the poor condition of the seedlings noticed in late April must have been due to the contaminant, 2,4,5-T, in the fertiliser. The view I have come to is that it is unlikely that any 2,4,5-T in the fertiliser had the results complained of. I am not satisfied that there was any significant quantity of 2,4,5-T in the fertiliser, nor that the observations of the seedlings sworn to by various witnesses on behalf of the applicant provide any sound foundation for attributing the trouble to 2,4,5-T. An elaborate case was mounted as to the quantum of the loss. The applicant said that of the 80,000 seedlings mentioned above, 50,000 were discarded. They were said to have been Partially replaced by 28,600 seedlings purchased from two other growers. The shortfall in the number of seedlings available was not caught up later and that caused a loss. In addition, according to the applicant's case, the 28,600 replacement seedlings did not produce as well as the damaged or destroyed seedlings would have done. The claim relates mainly to the value of lost production. As I have decided the case in favour of the respondents, there is no necessity to reach a conclusion as to the quantum of damages. However, in the particular circumstances, I have decided to deal with that point and it is discussed below; the conclusion is that no damage has been proved, to the requisite standard. Evidence of Mark Wright Mark Wright was, in my opinion, convinced that the applicant's seedlings had been destroyed in part, and damaged in part, by contaminated fertiliser manufactured by the first respondent and supplied by the _ second. In that sense, the applicant's case was bona fide; but I am not satisfied that Mark Wright gave a reliable account of events, insofar as they were within his knowledge. The matters in question were not ancient history, but occurred in 1986; further, this suit was begun in February 1987 and one might reasonably infer that detailed instructions were taken from Mark Wright before, or shortly after, that time. It is hard to explain away some of the discrepancies in Mark Wright's evidence, to which I shall refer, on the basis of difficulties of recollection. Of the points which have prompted the observation just made, the most striking relates to the evidence as to damages. Mark Wright said that the only two varieties used in seeding the Plastic containers (cells) in which the seedlings were raised were Delta Contender and Hay Slip. He gave affidavit evidence that in attempts to replace the 50,000 seedlings lost, 28,600 seedlings were "able to be purchased from a commercial nursery (Pringview Nursery) and from Ray Wilson, a local farmer". He said that the varieties that the applicant was "able to purchase were not the desired varieties (Hay Slip and Delta Contender) that R.A. Wright and Sons wished to plant at that time of the year." The case was then put forward, as I have mentioned, that the replacement varieties were not as productive. It was said by one MacGregor, a consultant engaged by the applicant, that Duke tomato plants which were obtained in substitution for those damaged or destroyed were not as productive as Delta Contender and Hay Slip. The suggestion made was' the applicant was not accustomed to using Duke tomatoes which were, as produced, not of as good quality as those which would otherwise have been produced. Mark Wright said that, of the first 40,000 affected, he was able to plant 10,000 on or about 11 May 1986 and 20,000 were planted in replacement of the second lot of 40,000 seedlings. Wright initially said that he bought 6,000 Duke seedlings from Brian Hansen of Pringview Nursery on 11 May 1986 and another 7,800 from the same source on 27 June. He claimed that he bought 14,800 Duke seedlings from one Wilson on 30 May 1986. On the last day on which evidence was taken (9 March), Wright was further cross-examined and affirmed that during 1986 he did not plant seeds other than Hay Slip and Delta Contender, and of course the replacement seedlings. He said, however, that he "may have noticed", when going through his records, that he had bought quantities of Duke seedlings from Pringview Nursery, but would not be surprised if early in April he bought some 8,100 seedlings from Pringview. He was then shown a delivery docket recording the collection of 108 trays of Duke seedlings on 2 April, and, when it was suggested that statements he had made about not using Duke were untrue, rather lamely countered by suggesting that he had not been asked about purchases at the v particular time in question. He admitted that he had "done trials with Duke", I should add that the applicant's trays contain 60 seedlings each, so that the purchase of 108 trays was one of a significant quantity, namely 6,480. I reiterate that the first spraying claimed to have done damage is said to have taken place on 17 April, after this purchase. Wright was then shown a despatch document recording payment on 9 May for 18,000 Duke plants. He was unable to say whether they were replacement plants and did not know whether they had been used. Next, Wright was shown an invoice recording the purchase of 9,000 Duke seedlings on 18 April; he said: "If I did - when I bought them it would have been the only ones that were available." He thought it was possible that he threw the 9,000 seedlings away. Next, he was shown an invoice for 6,000 Duke seedlings of 11 June; he said, rather later in the day, that they were the 6,000 which he had previously said were purchased on 11 May. Wright was shown an invoice dated 7 June for 7,800 Delta Contender seedlings; he had said in his affidavit that he bought 7,800 Duke seedlings. Of course, the applicant initially claimed damages in respect of the allegedly lower yield of the Dukes. Wright invited the Court to disregard that claim. 10. Wright later told his senior counsel, Mr Cullinane Q.C., that he had been doing trials with Duke plants and explained the purchases mentioned above in that way. One would have expected that the documents recording the purchases I have discussed would have been available to Wright when he made his affidavit. If he were taking care to be accurate, it is hard to understand how he could have given the instructions on which his affidavit was prepared without having reference to the documents; they were not numerous, nor complex. The matter to which I have just referred adversely affected my opinion of Wright's credit as a witness and bore upon my willingness to accept his account of his observations of the fate of the seedlings, of which the applicant complains. But that account is, in itself, not entirely consistent. It was an important point whether the seedlings were immediately affected, after being sprayed with the allegedly contaminated fertiliser. There were, of course, other agencies which might have damaged the seedlings and I was pressed with the view that the sequence of events itself strongly supported the applicant's case. In his principal affidavit Wright said that he sprayed the seedlings with a new keg on 17 April, and then on 25 April (8 days later) he noticed that some of the seedlings were "a little abnormal". He thought that might have been due to hot weather or some such cause and did not initially think that it was a problem ll. of any great magnitude. Over the following few days - i.e. the days following 25 April "the problem became quite marked". When Wright gave oral evidence on this same subject, he was asked whether the effect of the fertiliser on the seedlings was "obvious and spectacular or did you just have growing suspicions that something was wrong?" He said, in answer: "Not immediately. The growth centres had been burnt from the plant and it was an accumulative effect that accentuated as time progressed." However, according to the government horticultural adviser, Meurant, to whom Wright complained of the matter on 1 May, he was told that the problem "suddenly showed up", and Wright in his own evidence claimed that on 25 April he noticed that "something was drastically wrong". That is not easy to reconcile with the assertion that some of the seedlings were then noticed to be "a little abornmal" and that it was not "a problem of any great magnitude". It is my opinion that Wright is unable to give a completely reliable account as to the date at which, and suddenness with which, abnormalities in the seedlings were noticed. He probably told Meurant that the trouble appeared suddenly, but the impression created by his affidavit filed in July 1987 is that he did not notice anything in particular until at least a week after the April 17 spraying, and then there were no signs to alarm hin. 12. The observations made shortly after the application of the suspect fertiliser are of importance. If, in accordance with the impression given to Meurant, there was a sudden change in the seedlings after application of the fertiliser, the common sense inference urged upon me by Mr Cullinane for the applicant would be harder to resist. He relied on Adelaide Stevedoring Company Limited v. Forst (1940) 64 C.L.R. 538, a workers' compensation case concerning aman who died of a heart attack after heavy exertion. A majority of the High Court held in favour of the workman on the basis of the "presumptive inference which this sequence of events would naturally inspire in the mind of any common~sense person uninstructed in pathology" (p.563). I agree that, as a matter of common sense and independently of any expert evidence, the Court should be inclined to hold, if satisfied that the damage to the seedlings was apparent immediately after application of the fertiliser, that such application caused the damage. But I have no such confidence in the correctness of Mr Wright's account of the sequence of events as to start from the presumption mentioned in Forst's case. The first independent record of the appearance of the seedlings was that made by Meurant on 1 May; it is discussed below. A troubling aspect of the applicant's case is that Mr Geoffrey Ryan, who made an affidavit on behalf of the applicant, gave no evidence in support of Wright's account of the fate of the seedlings; Ryan's evidence was confined to the purchase of the Foli-Fert. According to Wright, he was assisted by Ryan to apply the Foli-Fert and not by one Nairn; Wright said Nairn was not present on 17 April, the date of the first application. Nairn, on "ue 13. the other hand, gave evidence that he assisted Wright in applying the fertiliser and noticed some days later that the seedlings had been affected adversely. I am left in a state of uncertainty as to which of Nairn or Ryan assisted, but I am inclined to think it must have been Nairn. If so, then Wright's having said that it was Ryan who was present at the critical time must go against his credit. My general conclusion is that Wright was not a very reliable witness; I find myself umable to be confident as to the extent to which his evidence represents the truth. Qther Observers It was an important part of the applicant's case to show that the damage to the seedlings was of a kind which was characteristic of phenoxy herbicides - 1.e. herbicides of a class including 2,4,-D and 2,4,5-T. A great deal of evidence was directed towards this point, and a number of witnesses on behalf of the applicant said, in one way or another, that they were familiar with the signs of damage by this sort of agency, and that the seedlings 1n question, or the mature plants grown from those of the seedlings which were ultimately used, manifested the appropriate signs. Some of these witnesses carried little conviction because they appeared over-anxious to assist the applicant, or had inadequate knowledge of the subject, or both. As an example, [I mention the evidence of Mr B.S. Hansen, who has had business connections with the Messrs Wright. Hansen said that he was told about the end of April 1986, by Mark Wright, of a problem with the 14. latter's tomato seedlings, went to have a look at them and saw that leaves and stems were deformed and twisted. He expressed the view that "this was the result of some hormonal herbicides such as 2,4,5-T and 2,4-D". Hansen added that he had "no doubt whatsoever" that the damage was due to hormone treatment. It emerged that the past experience on which he based that statement was that about 1982 on one occasion he had seen damage to tomato seedlings caused by "spray drift", from some substance which he did not identify. He said the substance was not 2,4,5-T and he did not know what it was. His evidence tended to show no more than that the damage to the applicant's seedlings appeared to him likely to have been caused by some herbicide. A similar witness was Mr Nairn, mentioned above. As I have explained, Nairn claimed to have been present when the first lot of allegedly contaminated Foli-Fert was applied and to have observed the results. In oral evidence he said that he had expressed the opinion, when he saw the damage to the seedlings, that it was caused by hormone treatment, but gave me the impression that he was not at all sure what caused it. Rather more substantial evidence, on the face of it, came from Messrs Meurant and Maltby, whose occupations, one would think, would give them a special knowledge of the causes of damage to vegetables. Meurant has for many years been a Department of Primary Industries adviser on horticulture in the Bowen area. As I have mentioned, trays of seedlings were taken to him by Wright on 1 May. Thereafter, Meurant made a report to his superiors about the incident in which he recorded that he had "expressed the 15. opinion ... that the symptoms exhibited by the plants resembled that of a chemical spray injury I had noted on occasions in the past". The type of chemical was not identified in the report. He went on to say that on 21 August Wright asked Meurant to look at the mature plants which had been grown from the seedlings. He mentioned their deficiencies, such as twisting of leaves, but his report made no suggestion about the cause of that. In his affidavit of 15 July 1987, Meurant said he had had experience with the effect of "growth regulated chemicals" by which he presumably meant "growth regulator chemicals", including 2,4,5-T and 2,4-D, and he claimed that the abnormalities he observed in the seedlings and in the mature plants are "peculiarly of the type produced by the effect of such chemicals". In his oral evidence, Meurant said he was quite convinced that there had been hormone type damage to those plants, but later explained that he did not "entirely" form that view when he first saw the plants - "... Because I was not prepared to express an opinion even outside of departmental policy until I had seen the plants outside, and later on with all the characterists Csici." At a later stage, he explained his position as being that there were symptoms that "really arose my Suspicions on it being hormone type damage", but he was not prepared to commit himself without seeing the rest of the plants in racks at Wright's nursery. 16. When challenged in cross-examination about the opinion he expressed in his report, Meurant said he would "still stick to --» possibility of chemical injury at the time ..." Considering his evidence as a whole, it does not appear possible rationally to draw the conclusion that when Meurant saw the plants he identified their deficiencies as being due to the use of chemicals of the type in question. Further, it is important to notice (as pointed out above) that Meurant was told that the trouble appeared suddenly; relying on that information, he tended to exclude the possibility that the trouble was caused by a pest or a viral disease. Another witness in the same category - 1l.e. a government-employed adviser - was Mr J. Maltby, an extension horticulturist with the Queensland Department of Primary Industry. He took samples of the applicant's suspect fertiliser and wrote to an analyst (Analytical Services Pty Ltd) on 22 May requesting analysis. He said in his letter that 2,4-D and 2,4,5-T had been found ina fertiliser solution belonging to a Mr P. Reibel and that: "The current analyses are being requested as approximately 5,000 - 10,000 speedlings are showing phenoxy type damage although symptoms are not as typical as the case from Mr Reibel." I took it from this letter that Maltby thought what he observed might not be entirely characteristic of phenoxy type damage or, at least, not so characteristic of it as Reihbel's Bw 17. Plants. However, he claimed in his evidence that he did not mean that at all, but that by "typical" he meant "drastic" or "severe". It should be added that the figure of 5,000 - 10,000 speedlings mentioned by Maltby is inconsistent with the applicant's case. He tended to water down that inconsistency in his oral evidence, by claiming that he had never had any idea how many there were. Mr. Ray Ison, an agricultural consultant engaged by the applicant, expressed the opinion that "the expression of symptoms .-. in both nutrient disorders and in diseases as well as phenoxy or herbicide damage ... will vary tremendously". He told the Court that he could not, by looking at photographs of the applicant's plants which had been suggested to show symptoms characteristic of treatment by chemicals such as those alleged to have contaminated the fertiliser, tell what caused the damage. The most helpful of the technically qualified witnesses called on the horticultural aspects of the matter was Mr W.J. Greenhalgh. His evidence tended to make me doubt the reliability of diagnoses of the trouble with the seedlings, or the mature plants, based on mere observation of the after effects. Many disorders may affect growing tomatoes and I am satisfied that the effects of 2,4-D or 2,4,5-T on the plants may easily be confused with other conditions; none of the witnesses claimed experience of observing tomato seedlings sprayed with very minute quantities of 2,4,5-T, as is here alleged. Mark Wright himself, a very experienced grower, was not able to form any clear view as to the 18. cause of the trouble for quite some time and it appears to me that he attributed it to damage by 2,4,5-T or some such substance largely because of the results of chemical analyses, discussed below. In summary, I do not accept that the evidence of opinions claimed to have heen formed by observers of the damaged plants as to the cause of the damage significantly assists the applicant's case. There was a simple and admitted observation which tended the other way: the extent to which the seedlings were damaged varied greatly from tray to tray, whereas, on the applicant's case, if the fertiliser was sprayed on carefully, one would have expected a more uniform effect from the mixed-in herbicide. It should be added that both sides produced evidence of elaborate experiments done with the suspect fertiliser, applying it to other tomato seedlings. The results were, of course, inconsistent with one another and that may have been due to differences in the conditions of application. However that may be, it is enough to say that I found that these experiments took the matter no further; they might have done, if performed by some independent person, rather than people with an obvious interest such as Mr Morgan. Chemical Analyses As I have mentioned, samples of the suspect material were subjected to a number of chemical tests by various experts. "MN, 19. These fell into two groups. Some of the tests were done within universities by university staff, and others by commercial firms whose business it is to analyse chemicals. In general, I thought the latter group produced more worthwhile evidence; that remark applies particularly to the evidence of analyses sworn to in documents 47 and 67, which, even on evidence led from the same side of the record, appeared to be of inferior quality and not deserving of detailed discussion. The principal contest was between results obtained by two impressive witnesses, Mr Robins on behaif of the applicant, and Dr Eckhard on behalf of the second respondent. For reasons I shall explain, I prefer the latter's conclusion. Evidence was given of tests of samples done by two different methods. One involved the use of a gas chromatograph - which, despite the name, has nothing to do with colour. Chemical methods are used to extract froma sample material likely to contain the suspected substance. It is then vaporised in such a way as to separate out substances which pass more quickly through a capillary tube, or through a tube of larger bore filled with special material, than those substances which pass less quickly through. Detectors at the ends of these tubes measure the time at which the various fractions arrive, and their quantities. The other method involves the use of mass spectrometry. In this process, the molecules of the sample are bombarded with electrons which fragment them. The instrument then measures the ratio between the mass and charge of ions forming part of the relevant molecules. The so-called "spectrum" (again, having 20. nothing to do with colour) gives a range of measurements of ratio between mass and charge of various parts of the original molecule. The spectrometer is used to identify the substances separated by the chromatograph. One thing these two methods have in common is that, in each, detection of the molecule being looked for depends upon comparison of the sample with standards. For example, in the use of the gas chromatograph a solution known to contain 2,4,5-T - because it has been deliberately placed therein - is tested, and then the sample merely suspected of containing it is tested and the results compared. Of course, the necessity for using a standard introduces another possibility of mistake; there may be an error made in preparing the sample under suspicion, or in preparing the standard. No doubt other mistakes may be made. As a check, it is possible to treat the suspect sample in such a way as to make the 2Z,4,5-T form part of different molecules; one process of this sort is called trans-esterification. Mr Robins (mentioned above) said in effect that if the sample being tested matches standard 2,4,5-T when analysed in two different chemical forms, one attains more confidence. A further check is possible, by varying the composition of the column's contents. Robins and his assistants performed analyses on samples from two kegs, being that of which direct complaint was made and another from the same batch. They obtained, with one exception, similar results as to the quantity of 2,4,5-T present. Leaving aside one result obtained by Constable, which was affected by arithmetical error, the Robins results were five in number, and Ns 21. the lowest showed .76 mg per kilogram, the highest .89 mg per kilogram. When one takes into account that the results were obtained from samples in which any 2,4,5-T present formed part of different molecules and very different columns, the consistency is impressive. It must give one pause, however, that no other analyst achieved precise results within that range; leaving aside (as I think one should) the work referred to in documents 47 and 67, as also the rough result of Mr Eaglesham, mentioned further below, the other analyses showed either no or very much lesser quantities of 2,4,5-T: the highest amount purporting to have been determined precisely outside Robins' laboratory was the 0.17 mg per kilogram found by Mr Alan Noble, a State Government analyst. The other analyses may be summarised as follows: Shields Nil Eckhard 0.4 mg per kilogram Brecknell Ranged from 0.07 to 0.13 mg per kilogram Some discussion of Dr Brecknell's result is necessary. His first analysis was done at a time when he had access to no sample of 2,4,5-T of known strength; he was not able to come to any definite conclusions, saying in his report, in effect, that there was no conclusive evidence of 2,4,5-T, although the results obtained could have indicated the presence of that substance; it appears to me that it would have been better for him simply to have reported that it was not possible to reach any conclusion. Two further analyses, done at a time when Brecknell had a proper standard available, reached results of 0.07 and 0.13 mg per kilogram. The report said, in effect, that the analyst would not 22. vouch for the presence of any 2,4,5-T, but that "the concentrations of 2,4,5-T referred to above represent only possible levels of the herbicide ..." The report went on to explain the analyst had not been able to obtain a mass spectrum to establish the identity of the component involved. In his oral evidence, Brecknell explained that an attempt to use a university mass spectrometer failed because "our machine has not been working very efficiently in GC mode and it turned out to be not sufficiently sensitive at this time". The reference to "GC mode" is to the use of the mass spectrometer at the output end of the gas chromatograph - i.e. to identify, by reference to the so-called spectrum, the molecules emitted from the gas chromatograph. Despite these problems, Brecknell's evidence augmented the difficulty of accepting the Robins results as accurate. A rather similar conclusion 1s appropriate with respect to Shields' work. Some criticisms of the Shields analyses made by Mr Cullinane on behalf of the applicant were, in my opinion, valid - in particular, that the graphs produced should have, but did not, show a return to the base lines. Nevertheless, 1t 1s again puzzling that there is such a considerable discrepancy between the Shields (nil) result and that obtained in the laboratory run by Robins. It appears to me likely that one reason for Robins' results is that the method of separation he used was too crude. On the weight of the evidence, it is clear that the more modern Vis 23. and effective method of separation is by use of a capillary column. The "packed" column used by Robins has a large diameter but less length than the capillary column; the latter is about 25 metres long and is more effective in separating out compounds having different physical characteristics. The "resolution" of a column is its ability to separate out, or enable the analyst to distinguish between, two similar compounds. The difference in resolving power is expressible in figures; capillary columns have a number of "theoretical plates", as the expression is, many times the packed columns used by Robins. Eckhard, a "chief chemist" employed by Australian Analytical Laboratories, used mass spectrometry in conjunction with a gas chromatograph. He used a capillary column in the latter. Although perhaps a little over-enthusiastic at times, he appeared to me, in general, a reliable witness and one of high standing in his specialty. Eckhard made the point that mass spectrometric detection is less sensitive but more specific than the electron capture detection used by Robins. To confirm his result, he used a technique available with the mass spectrometer, which he called single ion monitoring, greatly increasing the sensitivity of the instrument. He was cross-examined by Mr Cullinane on the basis that perhaps the different result was accounted for by a lack of homogeneity in the material tested, but that seems to me quite unlikely; the Robins results (with the single exception mentioned) were quite uniform, although taken from two different kegs. In my opinion, the difference between the Robins and Eckhard results must be related to the methods used rather than qualities of the material analysed. Although one Yuu 24. could not be certain what that difference is, it seems to me likely that it has to do with the resolving power of the packed columns used by Robins, allied to a point made by Eckhard: ",.. the problem is with an electron capture detector ... it is not as specific a detector as a Mass spectrometer. You can never be absolutely certain that there is something else under the peak." What he meant (and perhaps said) was that you cannot be certain that there is not something else under the peak. Putting this conclusion another way, the difference between the Eckhard and the Robins results is probably accounted for by the superiority of Eckhard's experimental technique. An answer available to the applicant, however, is that in fact mass spectrometry was in the end used 1n such a way as to support Robins' result. The evidence in question came from G.K. Eagleshan, a government analyst, who analysed by gas chromatography and mass spectrometry two samples provided to him by Robins. In an affidavit filed by leave during the proceedings, Eaglesham said that he was "able to say that 2,4,5-T - methylester was present in both samples". That is, of course, not inconsistent with Eckhard's result. In his oral evidence Eaglesham was pressed to take an important further step not included in his written report, namely to quantify the result. With some reluctance and describing the result as "very approximate", he said, in effect, that the 25. concentration of 2,4,5-T in the sample was 10 parts per million but gave no explanation as to how he arrived at that result. On the basis (derived from Robins) that the sample supplied to him was about fifteen to one, fertiliser to hexane, that was said to come back to about 0.7 parts per million in the fertiliser - fairly well matching Robins' results. Eaglesham was, as I understood it, invited to critize Eckhard's results, but did not do so. I can only say that I found the latter's evidence both more explicit and more convincing. The point should be emphasised that Eckhard was looking for 2,4,5-T at substantially higher concentrations than was found and would have proceeded differently had he been instructed to aim for detection at a level of less than 0.1 parts per million. Partially in consequence of that, he was unable to say with certainty, whether any 2,4,5-T was present at all. As I understand his evidence, if there was any, it was about the level of 0.4 parts per million. Without being as specific as that, I find that if there was any 2,4,5-T present, its concentration was at the level of 0.1 parts per million or lower. Effect of Low Concentrations I have found it unnecessary to determine whether there was any 2,4,5-T present in the fertiliser. Even if there was any, its level was not in my opinion such as to have caused the death of and damage to seedlings complained of. It is pointed out above that if one accepts Robins' evidence, the total amount of herbicide applied was about one hundred-thousandth of an ounce; on 26. the finding just made, it was no more than one millionth of an ounce. Some of the evidence emphasised the extreme sensitivity of tomato plants to 2,4,5-T and chemicals of that sort. Nevertheless, there was no evidence upon which it could possibly be held that so minute a quantity as a millionth of an ounce of 2,4,5~T could cause such drastic damage to the 80,000 seedlings to which it was applied. If the application were even, each seedling would have had applied to it about one hundred-millionth of a gran. These are small quantities indeed. The result cf the application of such quantities is, not surprisingly, not a subject which has attracted the interest of researchers. However, it emerges from the evidence that some work has been done on the result of the application of quite small amounts. W.J. Greenhalgh, mentioned above, gave evidence of attempts, mentioned in the literature, to investigate the possibility of tiny doses of 2,4-D or 2,4,5-T causing an improvement in production of tomato plants. He was of opinion that very low doses could affect tomato plants, but that anything less than one gram per hectare sprayed on would be unlikely to result in any visible effect. It is difficult to compare that estimate with the application rate here in question, accepting the figure of no more than about 0.1 parts per million mentioned above. One reason is ss, 27. that, as has been explained, the applicant's case was that immediately after the fertiliser was sprayed on, the plants were treated with a considerable quantity of sprayed water. It is not Clear why that was done; plainly it must have reduced the efficacy of a foliar fertiliser such as had been applied. The spraying of the water must have reduced still further any quantity of 2,4,5-T available to do damage to the seedlings. Whatever the loss of concentration so caused, however, it is clear that on the finding I have made the application rate must have been very much less than 1 gram per hectare. It is put forward that the 2,4,5-T not only did short term damage to the seedlings, but sufficient of it remained active - i.e. not broken down - to continue to act upon the mature plants. That seems to me unlikely; the damage to the large tomato plants depicted in the photographs placed in evidence Must surely have been due to some other cause. It should be added that no witness other than Greenhalgh was in a position to place before the Court any specific information as to the lowest concentration of 2,4,5-T likely to do any damage. I accept Greenhalgh's opinion on that subject. The conclusions therefore are: 1. If there was any 2,4,5-T in the fertiliser in question, it was in such a quantity as to be at or close to the limit of detection of the analytical method used by Eckhard. 2. If there was any 2,4,5-T in the fertiliser, its concentration was no more than about 0.1 parts per million. 28. 3. Such a concentration could not have had any significant adverse effect upon the seedlings, and more importantly could not possibly have caused the severe damage to the mature plants complained of. 4. Some other (unidentified) agency caused that damage. ages As I have explained, I propose to deal with the question of damages, despite my conclusion that the applicant has not proved its case. It has been contended that if loss caused by breaches of 6.52 of the Trade Practices Act is proved, then damages must he assessed, despite any uncertainty, and that proposition has' the support of authority: Enzed Holdings Ltd v. Wynthea Pty Ltd (1984) 57 A.L.R. 167 at 183. For reasons I tried to explain in Atkinson v. Hastings Deering (Queensland) Pty Ltd (1985) 71 A.L.R. 93, there must be a limit to the use of that principle. Here, the basic facts from which the whole calculation of damages came depended essentially on the evidence of Mark Wright. That evidence lacked conviction. For a start, I am not at all satisfied that the true quantity of seedlings lost was 50,000. Next, as is explained in some detail above, late in the case it emerged that documents, which must have been available to Wright when the claim was formulated, contradicted it in important respects. Not only did it appear that, before there was any 29. question of trouble with the allegedly contaminated fertiliser, seeds other than Delta Contender and Hay Slip had been used, Dut it was also shown that the version given as to purchase of replacement seedlings was inaccurate. Again, Wright gave evidence, without being able to Produce any documents to support it, of alleged loss of production from seedlings which were either damaged by the fertiliser or purchased and planted in replacement of those which had been destroyed by the fertiliser. That evidence was supposedly based upon estimates made by Wright 1n conjunction with other persons Participating in the enterprise, particularly Mr Geoffrey Ryan, mentioned above. Ryan gave no evidence in support of the estimates. Nor could one, on the whole, have any confidence in them. The harvesting of the tomatoes in question took place, of course, long after the damage was allegedly done by the fertiliser. It must have been evident that if any claim was to be made, some record would need to be kept, so as to enable a comparison of the production of the various parts of the farm - those planted with affected seedlings, those planted with unaffected seedlings and those planted with replacement seedlings ~ to be made. Nothing of the sort happened, and in my opinion the estimates given by Wright are merely guesses. A fundamental point in the case on damages - why the damage to the seedlings made so much difference - was in the end left quite obscure. Assuming all else in the applicant's favour, no doubt the loss of 50,000 seedlings must have affected production, but it was not proved, in my opinion, that the effect 30. was of the kind alleged. The consultant engaged by the applicant, Mr G.A. MacGregor, gave evidence that the basis of the calculation of damages was that there "would have been a specific area of 2.89 hectares not planted". Why that was so was left unclear. Even if one accepts the estimate of 50,000 seedlings (rather than the figure given by Maltby of 5,000 - 10,000), it was not shown why more seedlings could not have been grown, so that, at worst, the end result would have been production later in the season than planned. It is impractical to produce the substance of Wright's evidence on this topic in any detail, but some reference to it should be made. He said there was a production programme which was "designed to have a possible peak in production at that particular time of the year because ... figures had indicated to me that the maximum price to be achieved would range from possibly the lowest 1n July through toa ... possible peak in prices in August, September, and October". That seemed to mean that the point was that peak production at a different time might not have produced as good a price - not a strong point, when there was no evidence that later production would in fact have produced a lower price, nor any reason to think that it was reasonable, because of price anticipation, not to plant the 2.89 hectares at all. There was, it appeared, no difficulty in nursery capacity; there were about 200,000 seedlings in the nursery at the time of the alleged damage and space for another 100,000. A little later in his evidence, Wright said that he chose not to plant further seedlings because of what he regarded 31. as the "bottleneck section of the operation which is the packing shed". That seems to mean (inconsistently with what had been said earlier) that the decision not to grow and plant further seedlings was not related to price, but to packing shed capacity. The harvest was to take place months later. One can see that if there were a planting programme and some alteration to it were required, the applicant's operations might be inconvenienced, but I find it hard to believe that the applicant decided not to replace the missing seedlings because of expected difficulty in the packing shed. Later, Wright explained, in answer to his counsel, that he did adjust his programme, apparently by planting the area which he had intended to plant with the affected seedlings but not preparing "additional ground for plants I did not have". That seems to be a reversion to the suggestion that the whole problem was inability to get seedlings. In the end, the Court was not given any clear or coherent account of what difference was made to the applicant's operations by the difficulty with seedlings in April, other than the relatively small sum represented by the value of the seedlings themselves. Were the applicant otherwise entitled to succeed, it should not in my opinion have been awarded any damages for lost production (that being the substantial claim made) because the basis of and facts relating to that claim were not proved with sufficient certainty. In my view, where the uncertainty is due to the unreliabilty and culpable vagueness of the applicant's evidence, the rule applied in the Enzed Holdings case (above) is excluded. "gS on = a In the result, costs other than the 32. the application will be dismissed with costs relating to the evidence of the witnesses whose affidavits are numbers 47 and 67 in the Court files. frre i certify that this and the 3/ preceding pages are a true copy of the reasons for jvdsment herein of His Honour Mr Justice Pincus y . . Associate Dated GApri/ '799