It is convenient to recall the requirements of s16(a) of the Sale of Goods Act and to relate them to the present facts: 16. [9] It was held that the use of the water supply was so specific. In terms of those results, the concentration for triclopyr was at least 10 parts per billion (ppb). Hardwick Game Farm v. Suffolk Agricultural Poultry Producers' Association Ltd. - see Kendall (Henry) & Sons (A Firm) v. Lillico (William) & Sons Ltd. Munshaw Colour Service Ltd. v. Vancouver (City) (1962), 33 D.L.R. 2. 6 Hamilton v Papakura District Council (1997) 11 PRNZ 333 (HC) at 339; Arklow Investments Ltd v MacLean HC Auckland CP49/97, 19 May 2000 at [18] and [23]; and Chisholm v Auckland City Council (2000) 14 PRNZ 302 (HC) at [33]. 34. A resource management case, Gilbert v Tauranga District Council involving an . Held that a reasonable 15 year old would not have realised the potential injury. That reading occurred in December 1994, near in time to the spraying in this case. Consider a random sample of five solar energy cells and let xxx represent the number in the sample that are manufactured in China. The High Court held against the Hamiltons on the ground that they had not shown that they had made known to Papakura the particular purpose for which they required the water in such a manner as to show that they relied on Papakura's skill or judgment in ensuring it was suitable for that purpose. Throughout, the emphasis is on human health. Applying the approach in Manchester Liners v Rea Ltd ([1922] 2 AC 74, 92 per Lord Sumner), we find nothing in these circumstances to show that the Hamiltons were not entitled to rely on Papakura's skill and judgment. Assessing the evidence and deciding the necessary matters of fact is for the Court of Appeal and not for their Lordships. The mere happening of the event is proof of negligence. Under the legislation, Watercare's powers include the power to construct, purchase and keep in good repair waterworks for the bulk supply of pure water to the Auckland region (ss379(1) and 707ZZZS). Interact directly with CaseMine users looking for advocates in your area of specialization. Sale of Goods Act (U.K.) (1908), sect. Factors to be taken into account by a reasonable person, to determine if there has been a breach: Liability of municipalities - Negligence - Re water supply - [See 55. They must prove that they had made known to Papakura their intention to use the water for covered crop cultivation 'so as to show that they relied on Papakura's skill or judgment. [para. Hill (Christopher) Ltd. v. Ashington Piggeries Ltd.; Hill (Christopher) Ltd. v. Norsildmel, [1972] A.C. 441 (H.L. The Hamiltons would have known this. [para. That assurance covers not only defects which the seller ought to have detected but also defects that are latent, in the sense that even the utmost skill and judgment on the part of the seller would not have detected them. Flashcards. Applying these tests, the House of Lords held, Lord Diplock dissenting, that feeding to mink was within the particular purpose of the use of the herring meal as an ingredient in animal feeding stuffs. The requirement of foreseeability as a matter of law under this head of claim was questioned in the Court of Appeal which concluded however that it must now be taken as clear that foreseeability is an element necessary to establish liability under Rylands v Fletcher as under nuisance. In this case it is accepted that the third precondition is satisfied. Williams J in the High Court dismissed the Hamiltons claims and the Court of Appeal (Gault, McGechan and Paterson JJ) dismissed their appeal (Hamilton v Papakura District Council [2000] 1 NZLR 265). Two of the criteria for the grading are that continuous quality monitoring is installed and that the treatment plant should be operated and managed by appropriately qualified personnel. Rylands v. Fletcher (1868), L.R. The essential point is that it would never have occurred to Papakura that the Hamiltons were relying on it to provide water of the quality for which they now contend. ]. [1] Background [ edit] The Hamiltons grew hydroponic cherry tomatoes, using the Papakura town water supply to supply their water needs. The Hamiltons accept that they did not expressly make known to Papakura the purpose for which they required the water. Mr Casey's third challenge is to the Court of Appeal's conclusion that there was no evidence of the Hamiltons reliance on the skill and judgment of Papakura. The Court of Appeal considered that the Ashington Piggeries case was distinguishable in principle, emphasising the importance of the particular facts, a matter to which it also referred in relation to other cases cited for the Hamiltons. We do not suggest that Bullock is on all fours with the present case, but we none the less find the approach of the Court of Appeal in that case instructive. Moreover, the defendants came into court asserting that they had supplied Welsh coal of suitable quality. 195, refd to. Explore contextually related video stories in a new eye-catching way. Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Sir Andrew Leggatt and Sir Kenneth Keith if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[320,100],'swarb_co_uk-medrectangle-3','ezslot_5',114,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-3-0'); Times 05-Mar-2002, [2002] 3 NZLR 308, [2002] BCL 310, Appeal No 57 of 2000, [2002] UKPC 9if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[250,250],'swarb_co_uk-medrectangle-4','ezslot_4',113,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-4-0'); PC, (1) G.J. The duties claimed against Papakura are directed at fitness for the purpose for which the water was used with no limit on that use at all. 1963). Why is this claim significant? 45. Advanced A.I. 11, 56]. See, for example, Hardwick Game Farm [1969] 2 AC 31, 84A-C per Lord Reid. 259 (QB), Court of Queen's Bench of Alberta (Canada). That other 99% does of course remain subject to the Drinking Water Standards. Study with Quizlet and memorize flashcards containing terms like Blyth v Birmingham Waterworks 1856, Hamilton v Papakura District Council, Nettleship v Weston and more. ), refd to. Medical optinon must have a legal basis, and be reasonable, respectable, responsible opinion. change. Cambridge Water Company v Eastern Counties Leather Plc. To adapt a statement by Lord Wilberforce in Ashington Piggeries ([1972] AC 441 at 497), quoting Lord Morris of Borth-y-Gest, Papakura would not have undertaken the liability to meet the requirement that we want your water to grow our cherry tomatoes hydroponically but we want to buy only if you sell us water that will do . 330, refd to. We refer to the evidence of Mr Utting which is set out in the judgment of the Court of Appeal ([2000] 1 NZLR 265, 281, para 66). No such duty was established. Hamilton v Papakura District Council Chamra v Dubb North Shore City Council v Attorney General. and the rule in Rylands v Fletcher continue to be applicable. And in the case of Hamilton v Papakura Council 3 , where a small amount of chemicals in normal water damaged highly sensitive tomato plants . 70. It follows that their Lordships agree with the courts below that the claims in negligence against the two defendants cannot be sustained. At the time of the High Court hearing Watercare was working towards such accreditation for all its plants and it had achieved it for one of them. By contrast the supplier in this case, Papakura, is in the business of selling one and the same product, from one single source of supply, to each and every one of its purchasers. 19, 55]. Given the position their Lordships adopt on the question of reliance, they do not have to take this matter any further, except to note that in para [49] of its judgment (set out in para 11 above) the Court of Appeal did in fact find that Papakura had knowledge of the particular use. Hamilton v. Papakura District Council et al. 59. 4. any conflicting responsibilities of the defendant The findings in both courts of lack of reasonable foreseeability are firmly supported by the evidence and provide a second reason why the negligence claim must fail. Secondly, on one view this could seem unduly severe on Papakura. Subscribers are able to see a visualisation of a case and its relationships to other cases. 3, 52]. [para. While the water comes by way of a single bulk supply, many of Papakura's customers, by contrast, do have special needs, including dairy factories and food processing facilities. As will appear, the critical matter for their Lordships is the need for the Hamiltons to show their reliance on Papakura's skill and judgment and especially Papakura's knowledge of that reliance. As indicated there, s16(a) (s14(1) of the UK Act) imposes strict liability on the seller if its conditions are satisfied. Rather, the common law requirement is that the damage be a foreseeable consequence. The service to Papakura is set to cost $12.20 one way for passengers from Hamilton. As Lord Dunedin observed ([1922] 2 AC 74, 82), when asked to supply to coal for the steamer, the defendants could easily have guarded themselves, but instead merely answered Yes . Held that use of the street by blind people WAS foreseeable, so should defendants were in breach of duty. Before making any decision, you must read the full case report and take professional advice as appropriate. It appears to us that, just as in Bullock, a court could draw the inference that some degree of reliance must have arisen out of this relationship when, as a matter of fact, the Hamiltons had for some years been able to rely on Papakura not to supply water that was harmful to their crops. This ground of appeal accordingly fails. 8. Watercare's monitoring was also carried out in accordance with the Drinking Water Standards. Enhance your digital presence and reach by creating a Casemine profile. Had such possible reliance been brought to Papakura's attention, it would undoubtedly have said, as it did to the rose grower and to other users in Drury, that it could not give that undertaking. The plants were particularly sensitive to such chemicals. Papakura itself constructed and operated the necessary works to supply water in its district (and for a time to neighbouring districts) from 1922 until 1989. 163 (PC) MLB headnote and full text G.J. bella_hiroki. So far as the latter is concerned, there was no evidence from the neighbouring district of Manukau, as well as from Papakura, that warnings had been given on the basis of available knowledge. The Hamiltons pleaded that Watercare brought onto its land in the catchment area a substance, namely hormonal herbicide, which if it escaped was likely to cause damage and that the herbicide did escape by entering the reservoir from which contaminated water was supplied to the Hamiltons. Negligence - Duty of care - Duty to warn - [See Contains public sector information licensed under the Open Government Licence v3.0. The damage occurred at two of the Hamilton properties serviced by the town supply, but not at a third where town supply water was not used. Sporting context - Must take reasonable care in playing the game, but must take into account the circumstances of the moment. It buys the water in bulk from Watercare and it onsells that water to ratepayers and residents on the basis of a standard charge. Subscribers are able to see a list of all the documents that have cited the case. 1. Created by. The Ashington Piggeries case did not apply because in this case there was one supply of one product. No negligence. [para. Conditions and warranties - Implied or statutory terms as to quality or fitness - Fitness or suitability of goods - The Hamiltons sued the Papakura District Council (the town) for breach of contract, claiming that their cherry tomato crops were damaged by hormone herbicides which were present in the town water supply - The Hamiltons based their claim against the town on s. 16(a) of the Sale of Goods Act (i.e., the Hamiltons alleged that the town breached an implied term in its contract for the supply of water suitable for horticultural use) - The Judicial Committee of the Privy Council affirmed the dismissal of the Hamiltons' claim, where the Hamiltons failed to show that the town knew that the Hamiltons were relying on the town's skill and judgment in ensuring that the bulk water supply would be reasonably fit for the particular purpose - See paragraphs 9 to 26. Citation. In Hamilton v Papakura DC & Watercare the plaintiff relied on the water supply which contained a toxin that damaged its crop. It is an offence to pollute or cause to be polluted the water supply of any district or the watershed used for supplying water to any waterworks in such a manner as to make the water a danger to human health or offensive (s392). The question of negligence is for the COURTS to decide, NOT for the profession in question. They said that there was no evidence that Papakura knew that the growers relied on the water for use with sensitive crops without any testing or treatment. But, as we have noted, there appears to be no evidence that the Hamiltons or other growers had a system for filtering or treating the water supplied to them. 39]. That letter was of course written after the current case arose but it does provide an instance of Papakura giving a warning when it knew that a particular water supply might be damaging to horticulture. Lewis v. Lower Hutt (City), [1965] N.Z.L.R. We apply the standard of the reasonable driver to learners. This evidence of an established pattern of problem-free trading between the parties is also the context within which the court should, if necessary, assess the possible attitude of Papakura to being asked to supply the Hamiltons with water suitable for covered crop cultivation. Its objective, it says, is to provide water fit for human consumption in accordance with the Drinking Water Standards. 54. Hamilton v Papakura District Council . Cambridge Water Co. v. Eastern Counties Leather Plc, [1994] 2 A.C. 264; 162 N.R. 4. 6. 2020). The first challenge is to the Court's statement at the outset of its discussion of this cause of action that cherry tomatoes grown hydroponically in glasshouses (the situation here) are significantly more sensitive than other varieties and those grown outside or in soil. 6 In the footnotes: 3 Hamilton v Papakura District Council [2000] 1 NZLR 265, 280 4 [1981] 1 WLR 246, 258 5 [1957] 1 WLR 582, 586 [13] The department has responsibility for all prisons in New Zealand and has some thousands of employees. ]. Hamilton v Papakura District Council and Watercare Services Ltd: PC 28 Feb 2002 (New Zealand) The claimants sought damages. Next, to require that either Papakura or Watercare ensure that the town water supply had a zero level of triclopyr contamination would be unrealistic in this country with its agricultural based economy. 35. There is no reason in principle certainly counsel could not suggest one for distinguishing between horticultural use and other uses which might involve special needs, especially when they are known to the supplier, as was the case here for instance in respect of milk processing, food processing and renal dialysis. The decision of the court was delivered on February 28, 2002, including the following opinions: Sir Kenneth Keith (Lord Nicholls of Birkenhead and Sir Andrew Leggatt, concurring) - See paragraphs 1 to 51; Lord Hutton and Lord Rodger of Earlsferry, dissenting - See paragraphs 52 to 70. Test. It follows from their Lordships finding on foreseeability that this cause of action must fail, along with the negligence claim. Again this matter need not be taken further, in part because of the finding the Court of Appeal made in para [49] about Papakura's knowledge. A second, distinct reason is provided by the requirement of foreseeability. The law imposes a standard of care employing the reasonable skill and knowledge of someone in the position of the defendants not an unattainable standard that guarantees against all harm and all circumstances . Found Hamilton & Anor v. Papakura District Council (New Zealand) useful? Reviews aren't verified, but Google checks for and removes fake content when it's identified. Hamilton v Papakura District Council (2002) Hamilton claimed that their cherry tomato crops were damaged in 1995 by hormone herbicides which were present in their town water supply. Compliance to statutory standards - general principle that if a statute applies, and the defendant complies with the required conduct, this is RELEVANT but NOT decisive in determining liability in negligence. Marriage is sacred. The buyer is to make known to the seller its particular purpose so as to show that the buyer relies on the seller's skill and knowledge. With respect to contractual liability of the town, the Hamiltons relied on s. 16(a) of the Sale of Goods Act (i.e., the Hamiltons alleged that the town breached an implied term in its contract for the supply of water suitable for horticultural use). 47. It concluded its discussion of this head of claim as follows: 15. ]. 5. the above matters must be balanced out. Mr and Mrs Hamilton, the appellants, claim that their cherry tomato crops were damaged in 1995 by hormone herbicides which were present in their town water supply. The case of Bullock suggests that the available evidence could indeed be interpreted more positively, as tending to show that the Hamiltons were in fact relying on Papakura's skill and judgment. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. As Mr Casey says, it can be no defence to a claim in negligence that the person inflicting the damage did not know the level of toxicity at which injury might result. Compliance with those Standards ensures safe and appropriate use for a wide range of purposes beyond human ingestion. 16(a) [para. The claim was that the herbicide had contaminated the water in the lake and that that contamination in turn had damaged their tomatoes. It may be the subject of written memoranda, which should be filed in accordance with a timetable to be laid down by the Registrar. At the other end of the spectrum are very small specialist water users, like kidney dialysis patients. 40. AG v PYA Quarries Ltd [1957] 2 QB 169, 184 per Romer LJ (CA) cited in Stephen Todd (ed) The Law of Torts in New Zealand (3 ed, Brookers, Wellington, 2001) 535. The reason turned out to be that the sawdust contained excessive quantities of ferric tannate. The manager accepted that, if he became aware of users who believed the water was pure enough for their needs and had reason to believe that might not be so, he would feel obliged to advise them of the risk. Until this particular incident in February 1995 the water supplied by Papakura had never contained any substance that had proved harmful to the Hamiltons crops. We do not provide advice. In case of any confusion, feel free to reach out to us.Leave your message here. VERY rare occurrence. Hamilton & Anor v. Papakura District Council (New Zealand) 1. 2. what a reasonable person would do in response to risk Before confirming, please ensure that you have thoroughly read and verified the judgment. Hydroponic tomato growers complained about impurity in water. The Watercare duties by contrast are put in terms of the water's suitability for horticultural use or of avoiding poisoning or damaging horticultural crops. Hamilton V Papakura District Council [2002] NZPC 3 ; [2002] UKPC 9 ; [2002] 3 NZLR 308 (28 February 2002). A lawyer may be liable for breach of duty if you can prove that they did not act as a reasonable barrister would have (concerned the acceptance of a settlement). See Cammell Laird & Co v Manganese Bronze and Brass Co Ltd [1934] AC 402, 427 per Lord Wright and Ashington Piggeries [1972] AC 441, 468H 469A per Lord Hodson and 490A B per Lord Wilberforce, both cited with approval by Thomas J giving the opinion of the Court of Appeal in B Bullock and Co Ltd v RL Matthews and CG Matthews t/a Matthews Nurseries (unreported, New Zealand Court of Appeal CA 265/98 18 December 1998). Proof of negligence - Res Ispa Loquitur "the thing speaks for itself". Held not to be negligence on the facts, no evidence of harm being caused by the treatment in orthodox research. It necessarily has some characteristics in common On this basis they held that Matthews had relied on Bullocks skill and judgment in the critical respect, namely, to supply sawdust which was not contaminated with a toxic substance harmful to plants. And the duty asserted would be imposed similarly for the benefit of other specialist users of water such as kidney dialysis patients and brewers and would apply to water supply authorities throughout the country. It does not own or control any reservoirs and has the water in its reticulation system only for a matter of hours. The Court of Appeal put the matter this way: 38. 5. As Mr Casey emphasised, however, the relevant part of Ashington Piggeries for present purposes is the second appeal, in the proceedings between Christopher Hill and the third party, Norsildmel, who had sold Christopher Hill the toxic herring meal used by them to produce the compound that they had in turn sold to Ashington Piggeries as feed for the mink which had subsequently died. Papakura's monitoring procedures have already been briefly mentioned (para 22). To avail the Hamiltons [the Court continued] any implied term would need to be that the water supplied was suitable for their particular horticultural use . (1) Papakura District Council and (2) Watercare Services Ltd. Respondents [Majority judgment delivered by Sir Kenneth Keith] 1 Mr and Mrs Hamilton, the appellants, claim that their cherry tomato crops were damaged in 1995 by hormone herbicides which were present in their town water supply. H.C.), refd to. 3. expense, difficulty and inconvenience of alleviating the risk Subscribers are able to see any amendments made to the case. 62. Question of foreseeability. The Hamiltons and the other growers were therefore not choosing among a range of different products which Papakura could adjust to match their purpose. The simple fact is that it did not undertake that liability. Those Standards, which replaced the 1984 Standards, were developed by the Ministry of Health with the assistance of an expert committee; extensive use was made of the World Health Organisation's Guidelines for Drinking Water Quality 1993. We remind ourselves of two further points. The Court then indicated that it was prepared to proceed on the premise that it had been shown as probable that the damage was caused by triclopyr contamination of the range of up to 10ppb. The submission is that that was wrong both in fact and in law as requiring express (rather than implied) communication. Kendall (Henry) & Sons (A Firm) v. Lillico (William) & Sons Ltd., [1969] 2 A.C. 31 (H.L. )(5-x) !}p(x)=(x!)(5x)!(5! In itself, however, that evidence does not show that the Hamiltons were not relying, at least in part, on Papakura's skill and judgment to supply water that would not be positively harmful to their crops. OBJECTIVE test. Nor did he attempt to suggest that the test was different from the test in negligence. We Can Count On Philip Hamilton To Stand with Us Every Step of the Way. 556 (C.A. 42. Cambridge Water v Eastern Counties Leather [1994] 2 AC 264; Hamilton v Papakura District Council [2000] 1 NZLR 265 (CA) and [2002] UKPC (28 February 2002) (PC). The factual basis for this submission is however relevant to the critical question of reliance to which their Lordships now turn. Held that the solicitor was negligent, because the whole practise was negligent. Subscribers can access the reported version of this case. The Hamiltons used the water sold to them by Papakura in the expectation that it would be suitable for the purpose of growing their crops in being free from harmful constituents. 17. While in the present case the Hamiltons had not been carrying on their business and using Papakura's water supply for nearly such a long period as the rose growers in Bullock had been using the sawdust, they had been doing so for about five years, including about three years during which they had been growing cherry tomatoes. On the contrary, our examination of the evidence suggests that there was nothing in the cultivation of tomatoes, or of cherry tomatoes, that would have meant that Papakura could not reasonably have contemplated that the water would be used for cultivation of that kind. The trial judge dismissed the Hamiltons' claims and the Court of Appeal of New Zealand affirmed the decision. 64. For the reasons which we have given we consider that the Court of Appeal erred in law in making their assessment of the evidence and hence in the conclusions which they drew from it in respect of the requirements of section 16(a). On the facts, the Court of Appeal, having stressed the advantage the Judge had from hearing the witnesses, said, given the pattern of damage not just to the Hamiltons tomatoes but also to the crops of other horticulturists, that, 7. The defendants argued that the condition was negatived because the plaintiffs knew that the supplies of coal available to the defendants were limited and might indeed be confined to the cargo of coal carried on one particular vessel. Made to the spraying in this case there was one supply of one product area. Beyond human ingestion lewis v. Lower Hutt ( City ), Court of and! Matter of hours 31, 84A-C per Lord Reid ( 5-x )! ( 5 ( New )! Report and take professional advice as appropriate Hamilton to Stand with Us Every Step of the event proof. Licensed under the Open Government Licence v3.0 confusion, feel free to out! Make known to Papakura the purpose for which they required the water in bulk from Watercare and it onsells water. 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