B Braun Australia Pty Ltd v Mogal Freight Services Pty Ltd [1991] NSWCA 14

B BRAUN AUSTRALIA PTY LTD v MOGAL FREIGHT SERVICES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER and HANDLEY JJA 11 September 1991, 6 November 1991 [1991] NSWCA 14

Bailments — Particular Bailments — locatio operis faciendi Crouch v Jeeves (1938) Pty Limited (1946) 46 SR (NSW) 242, applied BAILMENTS — Particular bailments — locatio operis faciendi — container delivered for fumigation to quarantine terminal operator — process of fumigation damages contents — HELD — dismissing the appeal, that in all the circumstances and having regard to the instructions given to the operator, it was not the responsibility of the operator to satisfy itself that the goods in the container were not liable to be damaged by the fumigation.

Gleeson CJ In January 1988 the appellant imported two containers in which there were goods described as "medical disposables". Only one of the containers is of present relevance. It was ordered into quarantine, not because of anything to do with the medical disposables, but because there were also in the container wooden pallets that were suspected of being infected with wood wasps. It was fumigated at a quarantine terminal following a direction given by a quarantine officer. The fumigation caused damage to the medical disposables. The appellant sued the respondent, the quarantine terminal operator, for damages for negligence. The action came before Carruthers J in the Admiralty Division. (There were other claims, which id not proceed, that brought the matter within that jurisdiction). His Honour found in favour of the quarantine terminal operator, and dismissed the action. This appeal is against that decision.

It is convenient to begin by considering the background of statutory regulation, and commercial practice, against which the events in question took place.