NZ: Kiwifruit Claim plaintiffs close, argue duty of care was owed

Plaintiffs in the Kiwifruit Claim court case believe they have proven that MPI was negligent and breached its duty of care by allowing kiwifruit pollen contaminated with Psa-V to be imported into New Zealand and released into the kiwifruit industry.

212 claimants have brought the case, seeking accountability and compensation from the Government and Ministry of Primary Industries (formerly Ministry of Agriculture and Fisheries) for over NZ$376m of losses suffered in the incursion that devastated the kiwifruit industry in 2010. The defence earlier presented their closing submissions and have denied these claims, arguing all of their actions were appropriate to knowledge known at the time.

The concept of whether the MPI owed a duty of care to kiwifruit growers is at the centre of the court case. The defence argued that a duty of care did not exist between MPI and the growers, but the plaintiffs claimed in their closing submission that a duty of care arises where a defendant ought to have exercised reasonable care to avoid foreseeable loss to a plaintiff.

It was also claimed that a relationship of proximity exists between MPI, who controls the importation into New Zealand of goods that may contain harmful organisms like Psa, and the plaintiffs who will bear the consequences of the importation of those harmful organisms and cannot do anything to protect or mitigate themselves against such a risk. Also, the losses suffered by the plaintiffs was a foreseeable consequence of MPI’s negligence, and policy considerations favour the recognition of duty of care.

Photo: The plaintiffs legal team, Davey Salmon and Michael Heard

The plaintiffs say their loss was a plainly foreseeable consequence of MPI’s negligence in the performance of its biosecurity obligations. Group lawyer Davey Salmon told the court this was evident by government officers failing to properly consider whether kiwifruit pollen could carry Psa, failing to undertake the required Risk Assessment, and failing to take steps to ban the importation of kiwifruit pollen after the outbreak in Italy.

Furthermore, the plaintiffs presented that a shipment arrived from Shaanxi Province, China, in 2009 containing 4.5kg of pollen, anthers and other plant material that were infected with Psa. The court heard that consignment was required by law to have been inspected by MPI at the border and biosecurity clearance should not have been granted due to material discrepancies between the import permit and the phytosanitary certificate, and the fact it was kiwifruit nursery stock which was banned under MPI’s own regulations.

Mr Salmon added MPI was negligent in their inspection of the consignment and if they did not actually inspect it then they are negligent in failing to inspect as required. During the court case, a number of border staff provided evidence – according to the plaintiffs they all agreed that there was a mandatory requirement for the consignment to be inspected.

The plaintiffs also argued that all evidence points to the June 2009 incursion as being the most likely source, noting that, rather than providing an alternative entry pathway for Psa-V into NZ, the Crown focussed on attempting to doubt this pathway. The court heard in closing that the evidence shows that there were multiple opportunities for the Chinese consignment of anthers to infect Kairanga and Olympos, including the processing of the anthers in the pollen room at Main Road, where there was no routine cleaning of equipment, posed an obvious cross-contamination risk.

During the trial, a decision was made that the defence had to release details of its insurance policy in respect of its negligence or the negligence of its employees at the times relevant to this proceeding.

The plaintiffs argue that taking out insurance shows that the defendant knew that it could be liable for its own negligence and that of its employees and sought to insure this risk with commercial insurance arrangements. It also shows that the ability to insure against liability means that a duty of care is fair, just and reasonable as MPI has the ability to mitigate any risk posed by such a duty of care. Mr Salmon added the existence of insurance cover mitigates against the defendant’s arguments that a duty of care would transfer substantial liability onto the taxpayer.

“Evidence and cross-examination presented to the Court has clearly proven that MPI knew for many years that Psa was a significant risk to the kiwifruit industry, and by allowing it into New Zealand, failed to exercise the required level of reasonable care," Chairman of the Kiwifruit Claim Committee, John Cameron said after the closing submissions. “Growers lives and livelihoods were ripped apart by Psa and seven years on from the incursion, the impact is still ongoing - this case has provided growers with an opportunity to hold the Government and MPI to account for their losses. This case has been significant for kiwifruit growers and other primary industries in New Zealand because it questions whether a duty of care arises in relation to MPI performing its biosecurity functions to a reasonable standard."

Justice Jillian Mallon is now deliberating and will hand down her ruling in due course.

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