Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099

FEDERAL COURT OF AUSTRALIA

Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099 TORT – Negligence – non-feasance by public authorities – non-exercise by local government council and State government to minimise faecal contamination of lake where oysters grown commercially – oysters carrying hepatitis A virus – consumer of oysters contracting hepatitis A – whether duty of care owed to be discharged by exercise of statutory powers – causation – whether local government council and State government required to carry out sanitary survey of shore of lake. TORT – Negligence – whether duty of care owed by commercial farmer of oysters to consumers of them breached where oysters carrying hepatitis A virus due to faecal contamination of lake in which oysters grown – oyster farmer's depuration plant not shown to be working unsatisfactorily – whether discharge of oyster farmer's duty required it to carry out sanitary survey of shore of lake or to urge public authorities to do so – causation of oysters contaminated with hepatitis A virus as a result of faecal contamination of lake where oysters grown – whether circumstances show it was unreasonable for consumer to rely on skills or judgment of grower – whether oysters were as fit for purpose as reasonable to expect. TRADE PRACTICES – Trade Practices Act 1974 (Cth) s 74B – liability of oyster farmer to consumer where consumer contracted hepatitis A from virus carried by oysters – whether unreasonable for consumer to rely on skill or judgment of oyster farmer. TRADE PRACTICES – Trade Practices Act 1974 (Cth) s 74D – liability of oyster farmer to consumer where consumer contracted hepatitis A from virus carried by oysters – whether "reasonable to expect" that oysters would be free of virus – whose expectation relevant – relevance of impossibility of ensuring absolutely that oysters free of virus. TRADE PRACTICES – Trade Practices Act 1974 (Cth) ss 75AD, 75AK – liability of oyster farmer to consumer where consumer contracted hepatitis A from virus carried by oysters – whether "state of scientific or technical knowledge" enabled defect (virus) to be discovered – only test available would destroy the oysters – impossibility of extrapolating from sample to bulk. Trade Practices Act 1974 (Cth) ss 52, 74B, 74D, 75AD, 75AK, 82 Clean Waters Act 1970 (NSW) ss 5, 16, 27, 27A, 29 Environmental Offences and Penalties Act 1989 (NSW) Fisheries Management Act 1994 (NSW) ss 8, 189 Health Administration Act 1982 (NSW) s 5(1) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5 Local Government Act 1993 (NSW) ss 7, 56-66, 124 Public Health Act 1991 (NSW) s 7 Fisheries Management (Aquaculture) Regulations 1995 Sutherland Shire Council v Heyman (1985) 157 CLR 424 discussed Parramatta City Council v Lutz (1988) 12 NSWLR 293 distinguished Stovin v Wise [1996] AC 923 discussed Pyrenees Shire Council v Day (1998) 192 CLR 330 distinguished Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 followed Hill v Van Erp (1997) 188 CLR 159 cited Perre v Apand Pty Ltd (1999) 164 ALR 606 discussed Caparo Industries plc v Dickman [1990] 2 AC 605 discussed Romeo v Conservation Commission of (NT) (1998) 192 CLR 431 discussed Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1 discussed Nagle v Rottnest Island Authority (1993) 177 CLR 423 cited Caltex Oil (Australia) Pty Limited v The Dredge "Willemstad" (1976) 136 CLR 529 referred to Buckle v Bayswater Road Board (1936) 57 CLR 259 referred to Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 referred to Schiller v Mulgrave Shire Council (No 2) (1972) 129 CLR 116 referred to Fitzgerald v Penn (1954) 91 CLR 268 cited March v Stramare (1991) 171 CLR 506 referred to Doyle, Redwood The Common Law Liability of public Authorities: The Interface between Public and Private Law (1999) 7 Tort Law Rev 30 at 34 Fleming The Law of Torts 9th ed 1998 at 210 Aronson, Whitmore Public Torts and Contracts 1982 at 34-35 P W Hogg Liability of the Crown 2nd ed 1989 at 2 Trindade, Cane The Law of Torts in Australia 3rd ed 199 at 696-697 Davies Common Law Liability of Statutory Authorities 27 (1998) UWAL Rev 12 Justice Sopinka The Liability of Public Authorities: Drawing the Line (1993) Tort Law Rev 123 Street on Torts 10th ed 1999 at 182 K M Hogg The Liability of a Public Authority for the Failure to carry out a Careful Exercise of its Statutory Powers: The Significance of the High Court's Decision in Sutherland Shire Council v Heyman (1991) 17 Mon L R 285 GRAHAM BARCLAY OYSTERS PTY LIMITED & ORS v GRANT RYAN & ORS