hamilton v papakura district council

67. 265, refd to. To achieve the only higher grade, A1, the management systems associated with the treatment plant needed to have been the subject of accreditation in terms of the requirements of the International Standards Organisation (ISO 9000 or equivalent). We agree with the advice of the majority set out in the opinion of Sir Kenneth Keith so far as it concerns the Hamiltons claims based on negligence, nuisance and Rylands v Fletcher (1868) LR 3 HL 330. The appellants emphasise that only one percent of water is ingested by humans and question why the other 99% should not be subject to any standard. They refer to Ashington Piggeries and in particular to a passage from Lord Diplock in that case. ), refd to. A lawyer may be liable for breach of duty if you can prove that they did not act as a reasonable barrister would have (concerned the acceptance of a settlement). They sued for damages for breach of the condition in section 14(1) of the Sale of Goods Act 1893. Great Britain. 4. 23. How convincing is this evidence? Held, negligence. Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Sir Andrew Leggatt and Sir Kenneth Keith. 2. what a reasonable person would do in response to risk ), refd to. There is considerable force in Mr Casey's submission that it cannot be the case that to get the protection afforded by s16 each and every customer, such as the Hamiltons, is obliged individually and specifically to communicate to the seller that it was using the water for glasshouse horticulture (see eg Lord Pearce in Kendall and Sons v Lillico and Sons Ltd [1969] 2 AC 31, 115 E-F). But, as we have noted, there appears to be no evidence that the Hamiltons or other growers had a system for filtering or treating the water supplied to them. Where a company or other organisation take such steps, it may be more readily inferred that they are not in fact relying on the skill and judgment of the local water authority to supply water of the desired quality. Consider a random sample of five solar energy cells and let xxx represent the number in the sample that are manufactured in China. Norsildmel were, accordingly, held liable to Christopher Hill for breach of the warranty in section 14(1). 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. Negligence - Causation - Foreseeability - The Hamiltons sued the Papakura District Council (the town) and its water supplier, Watercare, for negligence, claiming that their cherry tomato crops were damaged by hormone herbicides which were present in the town water supply - The Hamiltons argued that the town and Watercare had a duty of care to supply water that was fit for the purpose for which it was to be used, to monitor the quality of water to determine that it was fit for those purposes and to warn if the water supplied was not fit for those purposes - The Judicial Committee of the Privy Council dismissed the Hamiltons' negligence claim where the proposed duties were extraordinarily broad in scope and would go far beyond what was just and reasonable in the circumstances - Further, there was a lack of reasonable foreseeability - See paragraphs 27 to 45. Papakura distributes its water to more than 38,000 people in its district. On their appeal to the Board, the Hamiltons accept that, were they to succeed on any or all of the legal arguments, the case should be remitted to the Court of Appeal for it to make the necessary factual findings. . Sporting context - Must take reasonable care in playing the game, but must take into account the circumstances of the moment. Subscribers are able to see the revised versions of legislation with amendments. Please log in or sign up for a free trial to access this feature. )(.65)x(.35)5x, where n!=(n)(n1)(n2)(2)(1)n !=(n)(n-1)(n-2) \cdots(2)(1)n!=(n)(n1)(n2)(2)(1) and 0!=10 !=10!=1. 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. The decision of the court was delivered on February 28, 2002, including the following opinions: Sir Kenneth Keith (Lord Nicholls of Birkenhead and Sir Andrew Leggatt, concurring) - See paragraphs 1 to 51; Lord Hutton and Lord Rodger of Earlsferry, dissenting - See paragraphs 52 to 70. Torts - Topic 60 The question is what would you expect of a child that age, NOT what you would expect of that particular child. Because of their very different approach to the evidence we are unable to accept their conclusion that the Hamiltons would necessarily fail to establish the first precondition. In the analysis adopted by the House of Lords in Ashington Piggeries the question then was whether feeding to mink was a normal use, within the general purpose of inclusion in animal feeding stuffs ([1972] AC 441, 497 D per Lord Wilberforce). Hamilton and (2) M.P. Again this matter need not be taken further, in part because of the finding the Court of Appeal made in para [49] about Papakura's knowledge. 25. 556 (C.A. An error of judgment is not necessarily negligent. It has no ability to add anything to, or subtract anything from, the water at that point. See, for example, Hardwick Game Farm [1969] 2 AC 31, 84A-C per Lord Reid. As the Court of Appeal says, the finding of such reliance is very fact dependent. Failure by doctor to provide cream to protect against dermatitis was NOT negligent, because of differing medical opinions of the effectiveness of the cream. Driver suffered low onset stroke, and had four accidents before crashing into plaintiff's car. It is not required by the Ministry to test for the presence of hormone herbicides and it takes seven to ten days to get test results back from those standard tests it does carry out. The claim was that the herbicide had contaminated the water in the lake and that that contamination in turn had damaged their tomatoes. 216, footnote 141]. The law of negligence was never intended to impose such costs and impracticability. It is a relatively small cost on a multi- 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. Flashcards. Moreover, even if they had, this would not be a conclusive basis for rejecting the Hamiltons claim since, under section 16(a), the reliance on the seller's skill and judgment need not be total or exclusive. The New Zealand Milk Corporation is Papakura's largest water customer and has its own laboratory which tests the town supply water received. System caused flooding. 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. Over a period of more than four years, triclopyr residues were only very occasionally detected at the sampling sites in the lake, the highest concentration when detection did occur being 0.8ppb or some 125 times less than the 1995 Standard. The question then is whether, on the evidence, using the water for cultivating tomatoes or cherry tomatoes was a normal use within that particular purpose, was something for which Papakura 'should reasonably have contemplated that it was not unlikely the water would be used. Held: Dismissing the companys appeal, the water supplier had a general duty to supply water to accepted standards. View Rylands v Fletcher.pdf from LAW 241 at Auckland. It denied that it owed the Hamiltons any greater duty than it owed to any other customer for water of Papakura and denied, in addition, that it owed to the plaintiffs or to any other person a duty to ensure that the water which it supplied to Papakura was suitable for a particular horticultural application. Indeed, as Watercare points out, tests done by a Crown Research Institute, AgResearch, suggested that very low levels of herbicides can promote plant growth. Although the decision in Hamilton v Papakura District Councilruled that no liability exists where it is not possible to foresee the type of damage caused, this case is clearly distinguished for the above reason. In case of any confusion, feel free to reach out to us.Leave your message here. One-eyed garage mechanic who injured his good eye at work and went blind. Held, though the risk of igniting the oil was small, it was a REAL risk, and a reasonable person would NOT disregard it. Interact directly with CaseMine users looking for advocates in your area of specialization. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. Torts - Topic 60 Hill (Christopher) Ltd. v. Ashington Piggeries Ltd.; Hill (Christopher) Ltd. v. Norsildmel, [1972] A.C. 441 (H.L. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. [paras. 2020). Match. Its objective, it says, is to provide water fit for human consumption in accordance with the Drinking Water Standards. It was easy enough to fix the leak, and the defendants should have done this. 1. was the thing brought onto land 2. thing likely to do mischief 3. for own purpose 4. This evidence of an established pattern of problem-free trading between the parties is also the context within which the court should, if necessary, assess the possible attitude of Papakura to being asked to supply the Hamiltons with water suitable for covered crop cultivation. Watercare in its statement of defence responded that the bulk water which it supplied to Papakura was potable and complied with the 1995 Standards. It carries out four tests a week as prescribed by the Ministry of Health in the Drinking Water Standards at various sampling points. Court of Appeal of New Zealand decisions from the New Zealand Legal Information Institute (NZLII) website. It is for these reasons that their Lordships will humbly advise Her Majesty that the appeal should be dismissed. Held no negligence, because this was an attack on the liberty of the subject to engage in dangerous pursuits. In this context, Papakura also called attention to one of its water sources which had been closed in June 1995, a bore source in Drury. 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. Standard of care in medical profession - Doctor was not negligent if he followed a common practice accepted as proper by a reasonable body of medical men (since overturned in Bolitho). 37. In the next section, we show that the probability distribution for xxx is given by the formula: Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the worlds leading publishers. Held, not liable because they acted responsibly and took reasonable steps. Nature of Proximity authority . Torts - Topic 60 Get 1 point on adding a valid citation to this judgment. 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. Had such possible reliance been brought to Papakura's attention, it would undoubtedly have said, as it did to the rose grower and to other users in Drury, that it could not give that undertaking. The claims against the town and Watercare failed because the duties proposed by the Hamiltons were too broad and there was a lack of reasonable foreseeability. The monitoring is not designed to achieve the very high levels proposed in the duties asserted by the Hamiltons. 40. 30. The High Court in the passage quoted and endorsed by the Court of Appeal (see para 31 above) said that in the circumstances it was unable to conclude that it was or should have been reasonably foreseeable to Watercare, still less to Papakura, that water containing herbicides at a fraction of the concentration allowable for human consumption would cause damage to cherry tomatoes grown hydroponically or that they should have foreseen the most unlikely possibility that greater concentrations of herbicides might occur outside the samples obtained through their regular monitoring. The court must, however, consider all the relevant evidence. So no question of reliance ever arose. The water from that bore had been historically high in the element boron which is generally safe for human consumption at the level present but completely unsuitable for horticulture. 48. (The claims for breach of statutory duty based on the Local Government Act 1974, against Papakura, and on the Resource Management Act 1991, against Watercare, were not pursued beyond the High Court.). a. The service to Papakura is set to cost $12.20 one way for passengers from Hamilton. As mentioned in the non-contentious issues there is no evidence of negligence of the factory's part. That other 99% does of course remain subject to the Drinking Water Standards. Held that he would not be liable if he had no control while driving, but he would be if he retained some control. Bag of sugar fell on plaintiff's head. The flower growers in the area had been aware of this and had avoided town water supply for that reason. Billy Higgs & Sons Ltd v Baddeley Throughout, the emphasis is on human health. 53. Indeed to this day Papakura maintains in its defence to this action that the water was entirely suitable for that purpose. The Hamiltons would have known this. 57. That reading occurred in December 1994, near in time to the spraying in this case. Get 2 points on providing a valid reason for the above Citation. Do you support legal recognition of marriages between persons of the same sex? 1. 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. Rylands v. Fletcher (1868), L.R. (1) Papakura District Council and (2) Watercare Services Ltd. Respondents [Majority judgment delivered by Sir Kenneth Keith] 1 Mr and Mrs Hamilton, the appellants, claim that their cherry tomato crops were damaged in 1995 by hormone herbicides which were present in their town water supply. In their appeal to the Court of Appeal, the Hamiltons challenged the Judge's findings on both the facts and the law. 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. Hamilton & Anor v. Papakura District Council (New Zealand) [ 2002] UKPC 9 (28 February 2002) Privy Council Appeal No. Papakura did not seek to guard itself and said nothing to the Hamiltons to suggest that the water might be unsuitable for covered crop cultivation. Hardwick Game Farm v. Suffolk Agricultural Poultry Producers' Association Ltd. - see Kendall (Henry) & Sons (A Firm) v. Lillico (William) & Sons Ltd. Munshaw Colour Service Ltd. v. Vancouver (City) (1962), 33 D.L.R. H Hamilton v Papakura District Council Hart v O'Connor J Jennings v Buchanan L Lange v Atkinson Lee v Lee's Air Farming Ltd M Meridian Global Funds Management Asia Ltd v Securities Commission Money v Ven-Lu-Ree Ltd N NZ Shipping Co Ltd v A M Satterthwaite & Co Ltd Neylon v Dickens P Pratt Contractors Ltd v Transit New Zealand Before making any decision, you must read the full case report and take professional advice as appropriate. [para. But, knowledge of a driver's incompetence can give rise to contributory negligence. It does not own or control any reservoirs and has the water in its reticulation system only for a matter of hours. Breach of duty. New Zealand. change. 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 . As the Board made clear in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon Mound No 2) [1967] 1 AC 617, 643, damage is foreseeable only when there is a real risk of damage, that is one which would occur to the mind of a reasonable person in the position of the defendant and one which he would not brush aside as far fetched. Car ran out of control and killed two pedestrians. 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 As indicated there, s16(a) (s14(1) of the UK Act) imposes strict liability on the seller if its conditions are satisfied. A second, distinct reason is provided by the requirement of foreseeability. Hamilton v Papakura District Council. The Court concluded that it had not been persuaded that Williams J erred in concluding that neither Watercare nor Papakura was liable in negligence. b. Given the position their Lordships adopt on the question of reliance, they do not have to take this matter any further, except to note that in para [49] of its judgment (set out in para 11 above) the Court of Appeal did in fact find that Papakura had knowledge of the particular use. Learn. They had agreed to supply coal for the plaintiffs vessel, the Manchester Importer, at a time when coal supplies were controlled. 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. IMPORTANT:This site reports and summarizes cases. The subcontractor's fixed-price invoice evidences the actual cost to HPC of replacing the pad. In terms of those results, the concentration for triclopyr was at least 10 parts per billion (ppb). The extraordinarily broad scope of the proposed duty provides one decisive reason for rejecting the claims in negligence. Medway Oil and Storage Co. v. Silica Gel Corp. (1928), 33 Com. Only full case reports are accepted in court. It necessarily has some characteristics in common Nuisance - General principles and definitions - Actionable nuisance - What constitutes - [See It appears to us that, just as in Bullock, a court could draw the inference that some degree of reliance must have arisen out of this relationship when, as a matter of fact, the Hamiltons had for some years been able to rely on Papakura not to supply water that was harmful to their crops. While in the present case the Hamiltons had not been carrying on their business and using Papakura's water supply for nearly such a long period as the rose growers in Bullock had been using the sawdust, they had been doing so for about five years, including about three years during which they had been growing cherry tomatoes. We remind ourselves of two further points. If it is at the end of a clause, it . The claims in nuisance, of having allowed the escape of materials brought onto their land, failed because there was no forseeability of this damage. Before confirming, please ensure that you have thoroughly read and verified the judgment. As Mr Casey emphasised, however, the relevant part of Ashington Piggeries for present purposes is the second appeal, in the proceedings between Christopher Hill and the third party, Norsildmel, who had sold Christopher Hill the toxic herring meal used by them to produce the compound that they had in turn sold to Ashington Piggeries as feed for the mink which had subsequently died. Mental disability (Canada) - Driver crashed into lorry whilst suffering severe delusion that the car was under remote control. (New Zealand) The claimants sought damages. 22. Gravity of risk - special risk to plaintiff should be taken into account if the defendant KNOWS about it. As Mr Casey says, it can be no defence to a claim in negligence that the person inflicting the damage did not know the level of toxicity at which injury might result. 4. any conflicting responsibilities of the defendant The plants were particularly sensitive to such chemicals. Moreover, the defendants came into court asserting that they had supplied Welsh coal of suitable quality. The courts are plainly addressing the question of foreseeability. Special circumstances of a rushed emergency callout. Hamilton v Papakura District Council [2002] 3 NZLR 308 (Privy Council) . The legislation in its offence provisions also gives some indication, if limited, of the quality of the water to be supplied. )(5-x) !}p(x)=(x!)(5x)!(5! Universal practice of not warning parents that a child's post-mortem may involve removal of organs could NOT be justified on grounds of common practice. 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