The defence in the Kiwifruit claim, where 212 claimants are seeking damages after an outbreak of Psa in 2010, has opened by telling the court that the duty of care that the plaintiffs are relying on is non-existent.
Now in its fifth week at the High Court in Wellington, where the plaintiff's witnesses have given evidence and been cross-examined by the Crown, the defence made its opening remarks. The plaintiffs, Strathboss Kiwifruit and Seeka, claim the Ministry of Primary Industries (MPI) was negligent under the Biosecurity Act by letting the bacterium into the country from China.
Represented by Jack Hodder QC, the Crown argues that the negligence claims are 'misconceived in law and unsupported on the evidence'. The defence pointed out that historically, New Zealand courts have not recognised a common law duty of care owed by public servants when exercising functions in the general public interest. It will be argued that even if a breach were to exist, statutory immunity under the Biosecurity Act applies.
The defence also rejected the plaintiff's claims that 11 decisions from the Ministry of Agriculture and Fisheries breached a duty of care, and that there was a systematic failure. Mr Hodder told the court that the officers made reasonable choices on the basis of the science at the time and they must not be judged with the benefit of hindsight.
After hearing the evidence from the plaintiff about the infection, Mr Hodder responded by claiming that the evidence presented does not establish the 2009 consignment (of kiwifruit pollen, which also contained anthers) infected Olympos or Kairanga orchards, and that there is no genetic proof of the source of the Psa, given none of the strains identified in Shaanxi, or China, are identical to the one in New Zealand.
The defence was also quick to point out the logistical processes at the border, and that functions are exercised under the Biosecurity Act in that public interest in the broadest sense, not the benefit of private economic interests. Mr Hodder added it is a complex decision making process determining what may come across the border, as the primary industries need ongoing access to genetic material in order to remain competitive, and undue delay to the system could encourage individuals to operate illegally.
The Crown plans to use evidence from 30 witnesses, with the scientific knowledge spread across four areas; the state of scientific knowledge at the time a review of pollen transmitted pests and pathogens was conducted by MAF; the scientific knowledge available at the time Dr Sathyapala, Susan Cooper and others considered the request by Kiwi Pollen Ltd to import kiwifruit pollen; the scientific knowledge about the expected length of time from infection with Psa and when symptoms would be seen on a kiwifruit orchard; and the evolution of scientific knowledge about Psa.
During their evidence, the plaintiffs presented that Psa was a known disease, to MAF and border officials around the world, and posed a risk to the New Zealand kiwifruit industry and its growers. They argue that by not imposing strict requirements for the importation of the pollen the MPI was negligent in its actions.