Vignerons lose battle over smoke damage

A group of vineyards has lost a legal bid to hold the West Australian environmental agency to account for tainting their grapes during prescribed burning.

Four vineyards took legal action against the WA Department of Environment and Conservation (DEC) in the Supreme Court of Western Australia, alleging DEC had been negligent performing prescribed burns next to their vineyards in 2004.

Lawyers for the vintners claimed the burning program had caused smoke damage to their wine grapes, near Pemberton, in WA's southwest.

Justice Graeme Murphy found a duty of care did not exist for DEC and if it did exist, he said, it had not been breached.

"It was not clear whether, and if so how, the plaintiffs were putting a case based on vicarious liability and, as I have found, a non-delegable duty of care as postulated by the plaintiffs has not been established," Justice Murphy said in his judgment last week.

Four vineyards had sought compensation to the tune of $5 million from the state government.

Justice Murphy said it would be unreasonable to impose a duty of care to avoid smoke damage to wine grapes on a public authority with fire management and biodiversity conservation functions and responsibilities.

He said it was not possible to avoid some smoke during veraison, a period considered critical in the development of wine grapes.

DEC Director-General Keiran McNamara said it was the first time a court had considered if a duty of care existed in relation to prescribed burning conducted by a public authority.

He said the issue of smoke and wine grapes continued to present difficulties for stakeholders despite advancements in smoke and wine grape research.

DEC was working with vignerons to try to avoid the likelihood of damage to grapes.

"DEC will take all reasonable and practical precautions and measures to avoid smoke affecting vignerons but DEC can give no guarantees that smoke from prescribed burns may not have some impact upon vineyards from time to time," Mr McNamara said.

The department is working with the Department of Agriculture and Food and the Curtin University of Technology on research into smoke effects to grapevines and taint in wine.