Practicability of precautions. Hamilton v Papakura District Council (CM 97) NZ Court of Appeal Foreseeability of harm Facts There were growers of cherry tomatoes They were growing the tomatoes hydroponically They were spraying chemicals (weed spray), and was a lot of spraying around big lake The lake supplied some of the water for the cherry tomatoes (hydroponic) A Hamilton Appellants v. (1) Papakura District Council and (2) Watercare Services Ltd. Respondents FROM THE COURT OF APPEAL OF NEW ZEALAND --------------- JUDGMENT OF THE LORDS OF THE JUDICIAL The plants were particularly sensitive to such chemicals. Indeed, as Watercare points out, tests done by a Crown Research Institute, AgResearch, suggested that very low levels of herbicides can promote plant growth. The only possibly relevant term of the contract with users to which their Lordships were referred was the statement in the standard water supply bylaw that the water be potable and wholesome . By contrast the supplier in this case, Papakura, is in the business of selling one and the same product, from one single source of supply, to each and every one of its purchasers. )(.65)^x(.35)^{5-x}}{(x ! With respect to contractual liability of the town, the Hamiltons relied on s. 16(a) of the Sale of Goods Act (i.e., the Hamiltons alleged that the town breached an implied term in its contract for the supply of water suitable for horticultural use). Rebuilding After the COVID-19 PANDEMIC. Medical optinon must have a legal basis, and be reasonable, respectable, responsible opinion. [para. Please log in or sign up for a free trial to access this feature. Before confirming, please ensure that you have thoroughly read and verified the judgment. It was easy enough to fix the leak, and the defendants should have done this. The High Court has affirmed and exercised this jurisdiction in Hamilton v Papakura District Council, Arklow Investments Ltd v MacLean and Chisholm v Auckland City Council. The monitoring is not designed to achieve the very high levels proposed in the duties asserted by the Hamiltons. Employer had insufficient resources to cover floor with sawdust. 324, refd to. The Hamiltons must also satisfy the second precondition of a claim under section 16(a). We regret, however, that we are unable to agree with their opinion that the Hamiltons would not have a valid claim against Papakura under section 16(a) of the Sale of Goods Act 1908 if it were found that the damage to their tomatoes had probably been caused by triclopyr contamination. Finally, in its discussion of the cases, the Court mentioned the difficult issues which may arise where a broad purpose is specified and the goods are suitable for some uses within that purpose and not others. 27. The flower growers in the area had been aware of this and had avoided town water supply for that reason. The Watercare duties by contrast are put in terms of the water's suitability for horticultural use or of avoiding poisoning or damaging horticultural crops. Until this particular incident in February 1995 the water supplied by Papakura had never contained any substance that had proved harmful to the Hamiltons crops. 47. Those Standards, which replaced the 1984 Standards, were developed by the Ministry of Health with the assistance of an expert committee; extensive use was made of the World Health Organisation's Guidelines for Drinking Water Quality 1993. In those proceedings Christopher Hill relied on the condition in section 14(1) of the United Kingdom Sale of Goods Act 1893, which was similar to the warranty in section 16(a) of the 1908 Act. In our view, however, that is not in itself a reason for holding that section 16(a) does not apply. The claims in nuisance, of having allowed the escape of materials brought onto their land, failed because there was no forseeability of this damage. It does not own or control any reservoirs and has the water in its reticulation system only for a matter of hours. Get 1 point on providing a valid sentiment to this On this basis they held that Matthews had relied on Bullocks skill and judgment in the critical respect, namely, to supply sawdust which was not contaminated with a toxic substance harmful to plants. For a court to impose such a duty would be to impose a requirement on water suppliers which goes far beyond the duty met in practice by those authorities supplying bulk water, a duty which has long been founded on the Drinking Water Standards, standards drawn from World Health Organisation guidelines and from other international material and established through extensive consultation. On the contrary, our examination of the evidence suggests that there was nothing in the cultivation of tomatoes, or of cherry tomatoes, that would have meant that Papakura could not reasonably have contemplated that the water would be used for cultivation of that kind. If a footnote is at the end of a sentence, the footnote number follows the full stop. The crops of other growers who used the same town water supply were, it was contended, similarly affected. Breach of duty. As will appear, the critical matter for their Lordships is the need for the Hamiltons to show their reliance on Papakura's skill and judgment and especially Papakura's knowledge of that reliance. The Hamiltons argued also that Watercare had created a nuisance under the principle in Rylands v. Fletcher. 46. It is sharply different from a standard case where, in negotiation with the seller, the buyer can choose one among a range of different products which the seller may be able to adjust to match the buyer's purpose. VLEX uses login cookies to provide you with a better browsing experience. In the end, this case is a narrow one to be determined on its own facts. The Court of Appeal stated its conclusion about the negligence causes for actions against both defendants in this way: 31. The law imposes a standard of care employing the reasonable skill and knowledge of someone in the position of the defendants not an unattainable standard that guarantees against all harm and all circumstances . [para. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiffs mine. Watercare in its statement of defence responded that the bulk water which it supplied to Papakura was potable and complied with the 1995 Standards. Reviews aren't verified, but Google checks for and removes fake content when it's identified. Practicability of precautions - Landowner had resources to extinguish fire that started on his land and failure to do so amounted to negligence. Water supply in the wider Auckland area then became the responsibility of the Auckland Regional Council which, in 1992, established Watercare and transferred its water and waste water undertaking to it. Learn. Flashcards. [para. Only full case reports are accepted in court. 3.3.4Hamilton v Papakura District Council [2000] 1 NZLR 265 3.3.5Transco PLC v Stockport MBC [2004] 2 AC 1 4Defamation 4.1Statutes 4.2Cases 5Privacy 6Vicarious Liability 6.1See also Accident Compensation[edit| edit source] Statutes[edit| edit source] Injury Prevention Rehabilitation and Compensation Act 2001[edit| edit source] 57. Before the Board, as in the Court of Appeal, the claims against Papakura are in contract and negligence and against Watercare are in negligence and nuisance and under the principle in Rylands v Fletcher (1868) LR 3 HL 330. 2020). Hamilton v Papakura District Council . In their opinion the majority have referred to the New Zealand Milk Corporation's plant with its laboratory for testing the town water supply and its large filtration plant. [para. The Court of Appeal reviewed the evidence and summarised its effect (Hamilton v Papakura District Council [2000] 1 NZLR 265, 277, para 49): 56. The Court of Appeal did not address the issue formulated in that way and did not examine the evidence from that point of view. Why is this claim significant? The Hamiltons used the water sold to them by Papakura in the expectation that it would be suitable for the purpose of growing their crops in being free from harmful constituents. For our part, we would have humbly advised Her Majesty that she should allow the appeal in this respect and remit the case to the Court of Appeal to make the necessary findings of fact. Watercare's contractors had sprayed gorse with Grazon in part of the catchment area for the lake from which the town water supply was taken. 3 H.L. Held that use of the street by blind people WAS foreseeable, so should defendants were in breach of duty. Hamilton v. Papakura District Council (2002), 295 N.R. Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11 (Supreme Court) Misrepresentation inducing contract, liability of council for defective LIM, assessing and apportioning damages in contract and tort. Probability of injury - Where there is foreseeability of injury, there must also be a probability of damage that would be considered significant by a reasonable person. [para. The Court referred to its conclusion that the High Court was correct in deciding that the damage complained of was not reasonably foreseeable as required to establish liability in negligence. In itself, however, that evidence does not show that the Hamiltons were not relying, at least in part, on Papakura's skill and judgment to supply water that would not be positively harmful to their crops. Must ask whether a doctor has acted as a reasonable doctor would. Cambridge Water v Eastern Counties Leather [1994] 2 AC 264; Hamilton v Papakura District Council [2000] 1 NZLR 265 (CA) and [2002] UKPC (28 February 2002) (PC). While the water comes by way of a single bulk supply, many of Papakura's customers, by contrast, do have special needs, including dairy factories and food processing facilities. The High Court held against the Hamiltons on the ground that they had not shown that they had made known to Papakura the particular purpose for which they required the water in such a manner as to show that they relied on Papakura's skill or judgment in ensuring it was suitable for that purpose. [1] Background [ edit] The Hamiltons grew hydroponic cherry tomatoes, using the Papakura town water supply to supply their water needs. Employers could rely on common practice to avoid negligence generally, unless the practice was clearly bad. 69. vLex Canada is offered in partnership with: Liability of municipalities - Negligence - Re water supply - [See, Negligence - Duty of care - General principles - Scope of duty - [See, Negligence - Duty of care - Duty to warn - [See, Nuisance - General principles and definitions - Actionable nuisance - What constitutes - [See, Nuisance - Water pollution - General - [See, Request a trial to view additional results, Phillip v. Whitecourt General Hospital et al., (2004) 359 A.R. Held, not liable because they acted responsibly and took reasonable steps. 330, refd to. 41. This appeal was heard by Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Sir Andrew Leggatt, and Sir Kenneth Keith, of the Judicial Committee of the Privy Council. In practice, they operate their own treatment and monitoring procedures. Under the legislation, Watercare's powers include the power to construct, purchase and keep in good repair waterworks for the bulk supply of pure water to the Auckland region (ss379(1) and 707ZZZS). To avail the Hamiltons [the Court continued] any implied term would need to be that the water supplied was suitable for their particular horticultural use . 57 of 2000 (1) G.J. The first challenge is to the Court's statement at the outset of its discussion of this cause of action that cherry tomatoes grown hydroponically in glasshouses (the situation here) are significantly more sensitive than other varieties and those grown outside or in soil. 1. was the thing brought onto land 2. thing likely to do mischief 3. for own purpose 4. In the present case there was, of course, evidence that the Hamiltons employed a consultant, Mr van Essen, who contacted Papakura's water engineer to discuss nutrient and element levels in the town-water supply. You also get a useful overview of how the case was received. Nevertheless, where section 16(a) applies, the buyer gets an assurance that the goods will be reasonably fit for his purpose. According to the authorities, however, the proper question to ask in these circumstances is whether there was anything in the evidence to show that the Hamiltons were not relying on the skill and judgment of Papakura to supply water suitable for covered crop cultivation. Subscribers are able to see the revised versions of legislation with amendments. The Hamiltons pleaded that Watercare brought onto its land in the catchment area a substance, namely hormonal herbicide, which if it escaped was likely to cause damage and that the herbicide did escape by entering the reservoir from which contaminated water was supplied to the Hamiltons. 556 (C.A. 1. 35. p(x)=(5!)(.65)x(.35)5x(x! They refer to Ashington Piggeries and in particular to a passage from Lord Diplock in that case. We do not make allowances for learner drivers. We apply the standard of the reasonable driver to learners. 3 Hamilton v Papakura District Council [2000] 1 NZLR 265, 280 4 [1981] 1 WLR 246, 258 5 [1957] 1 WLR 582, 586 [13] The department has responsibility for all prisons in New Zealand and has some thousands of employees. Held, though the risk of igniting the oil was small, it was a REAL risk, and a reasonable person would NOT disregard it. ]. Watercare had, after all, been spraying herbicides in the catchment area and testing the water for a number of years without such damage occurring and without complaint. 259 (QB), Court of Queen's Bench of Alberta (Canada). The Hamiltons contended that the water had been contaminated by the herbicide triclopyr which was a component of a weed spray marketed under the name Grazon. and the rule in Rylands v Fletcher continue to be applicable. Open web Background Video encyclopedia About us | Privacy Home Flashback ), refd to. On the facts, the Court of Appeal, having stressed the advantage the Judge had from hearing the witnesses, said, given the pattern of damage not just to the Hamiltons tomatoes but also to the crops of other horticulturists, that, 7. No such duty was established. On that basis the Hamiltons would have established the first precondition. Cambridge Water Co. v. Eastern Counties Leather Plc, [1994] 2 A.C. 264; 162 N.R. Kidney dialysis requires very high quality water, much higher than the standard, with the quality typically being achieved by a four stage filtration process. Lewis v. Lower Hutt (City), [1965] N.Z.L.R. An OBJECTIVE test was applied, and it was found that he had not taken reasonable care, insanity made no difference. [9] It was held that the use of the water supply was so specific. 2. what a reasonable person would do in response to risk In May 1992 Bullocks supplied a large quantity of sawdust but, when it was used on a particular bed, it damaged the roots of the roses. Marriage is sacred. )(5-x) !}p(x)=(x!)(5x)!(5! Tauranga Electric Power Board v Karora Kohu. Children. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. The water company had done this. 23. Car ran out of control and killed two pedestrians. [para. Medway Oil and Storage Co. v. Silica Gel Corp. (1928), 33 Com. Negligence - Duty of care - General principles - Scope of duty - [See Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Sir Andrew Leggatt and Sir Kenneth Keith. In other words, if it knew that the water was to be used for that purpose, Papakura had enough information to exercise its skill and judgment in respect of the quality of the water that it supplied to the Hamiltons. Hamilton and M.P. It carries out four tests a week as prescribed by the Ministry of Health in the Drinking Water Standards at various sampling points. Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. It may be the subject of written memoranda, which should be filed in accordance with a timetable to be laid down by the Registrar. Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Sir Andrew Leggatt and Sir Kenneth Keith if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[320,100],'swarb_co_uk-medrectangle-3','ezslot_5',114,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-3-0'); Times 05-Mar-2002, [2002] 3 NZLR 308, [2002] BCL 310, Appeal No 57 of 2000, [2002] UKPC 9if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[250,250],'swarb_co_uk-medrectangle-4','ezslot_4',113,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-4-0'); PC, (1) G.J. Held: There was reliance as to the suitability of the ingredients only.Lord Diplock said: Unless the Sale of Goods Act 1893 is to be allowed . (.65 ) x (.35 ) ^ { 5-x } } { ( )! Our view, however, that is not designed to achieve the high... 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