The Kiwifruit Claim hearings in the New Zealand High Court have moved onto closing arguments with the defence presenting that the plaintiffs’ claims fail on both law and facts.
212 claimants, led by two plaintiffs; Strathboss Kiwifruit and Seeka, are seeking accountability and compensation from the Government and Ministry of Primary Industries (formerly Ministry for Agriculture and Fisheries) for over NZ$376m of losses suffered in the 2010 outbreak of Psa.
After 11 weeks of evidence, both sides presented their closing submissions, starting with the Crown, who in its closing document tendered to the court, argued that the plaintiffs have clearly failed to discharge their onus of proving that the June 2009 consignment contained Psa3 and/or that the contents were in any way applied to, or permitted to escape and affect, any kiwifruit orchard so as to establish the infection.
One of the key issues for the court to determine was whether the MPI owed the plaintiffs (and growers) a duty of care, and to what extent. The defence denies the allegation, saying the co-existence of knowledge of a risk of harm does not give rise to a duty of care at common law. It was presented that if a duty of care is not owed, the authority’s conduct cannot be a source of liability in negligence.
Furthermore, the defence argues MPI personnel are protected from any related liability by section 163 of the Biosecurity Act because they did not act in bad faith nor without reasonable cause.
The Crown submitted to the court, that on the evidence presented, it is impossible to say how Psa3 entered New Zealand, as there is no proof that the 2009 consignment contained Psa3, and mere geographical proximity cannot be relied upon, as the consignment was milled more than seven kilometres from Olympos and Kairanga orchards.
Also in its closing submission, the defence claimed that Psa has spread through every major kiwifruit-growing country in the world and none of them were able to prevent the introduction of Psa3, or definitively identify a pathway for entry. It stated the kiwifruit industry is no more or less vulnerable than any other primary industry. The whole of New Zealand – humans and primary industries and the environment – is similarly vulnerable to realised biological risks.
The Crown also denied that MPI breached any duty by relying on the Public Health and Environmental Laboratories (PHEL) report in making the Imports Decision. It added the report was a significant review of the scientific literature, underwent peer review by a number of internal and external scientists, and contained a clear conclusion that kiwifruit pollen was not associated with, and transmitted by, any pests or diseases.
The defence also refuted the plaintiff's approach, which it says was "plainly but wrongly" dependent on the wisdom of hindsight, pointing out that the counsel for the plaintiffs used the term 'hindsight' on at least 26 occasions during cross-examination, according to the transcript of proceedings.
While the Crown does recognise that compensation is available under the Biosecurity Act, as long as there is no evidence of non-compliance, it has presented that if it is disputed, it is to be determined by arbitration, not by litigation in the ordinary courts.
Fresh Plaza will have a full report on the Plaintiff’s closing statement next week.