Tuesday, March 19, 2024

Growers head to Supreme Court

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An Appeal Court decision on the Government’s liability for the Psa infection in kiwifruit has ruled in favour of  the Crown, stating it is immune responsibility for allegedly negligent acts. Kiwifruit growers behind the case are now preparing to go to the Supreme Court. 
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In 2017 more than 200 growers and post-harvest processor Seeka alleged negligence and sought compensation from the Ministry of Agriculture, now Primary Industries, for allowing Psa infected pollen into New Zealand. 

The ensuing outbreak resulted in the high value Hort16a kiwifruit being heavily infected and major orchard losses were incurred over the following two seasons. Latest government estimates put the total losses at more than $800 million.

The High Court ruled the Crown was negligent and breached its duty of care by allowing Psa into the country through infected pollen and was liable to growers for its negligence. But the Crown was also cleared of liability for failing to inspect the pollen and of any liability to Seeka. 

The Crown appealed against the ruling while growers cross-appealed over the failure to inspect the pollen.  

The Court of Appeal allowed the Crown appeal against its liability to the growers but dismissed the Seeka and the growers’ cross-appeals.

Grower spokesman John Cameron said there was always been a belief that whatever decision was made the Supreme Court would be the next step in the process.

“The key thing from the appeal is that there was no doubt MPI’s actions were behind Psa coming into NZ. That to us is justification to take the information to court and have it verified,” he said.

“What has been difficult to prove is the duty of care and liability around that.”

The Court of Appeal found the Crown has statutory immunity that precludes liability for alleged negligent acts or omissions. 

The court also found the Biosecurity Act provides immunity for any omissions made by ministry staff and any individuals who might have been in breach of duty of care have immunity against civil liability.

The court did, however, reason that if the ministry had owed a duty of care it would have found ministry staff breached their duty of care by granting import permits without doing an effective risk assessment on the use of the pollen that caused the outbreak.  

But the court reasoned vague policy factors mean it would not be fair, just and reasonable to impose a duty of care in the circumstances. 

The ruling also noted had the ministry owed a duty of care the court would have found the failure to inspect the pollen consignment fell well below the test for care expected of skilled and informed staff.

“However, that failure had no causative effect because the permit made provision for unmilled pollen.”

Cameron said the case is a monumental one that sets precedents over future government liability so going to the Supreme Court is a fitting move.

“From a grower’s point of view we are very satisfied that both courts have acknowledged MAF’s actions were responsible for it coming here.”

A welcome outcome has been a sharpening up of biosecurity standards.

“I think it is something everyone is far more conscientious about when it comes to doing their job. But it still does not deal with the losses and hardships that continue now.

“But getting it over in the Court of Appeal, that was always going to be a hard shoe to fit. The fact it has taken 13 months to come out with this decision implies it was by no means black and white. There must have been a bit of variation in opinion there.”

Seeka chief executive Michael Franks said the company was conditioned to any possible verdict and it will be up to the claims committee to determine if Seeka will continue to the next stage.

The class action suit was underwritten by Auckland based company LPF Group.

Cameron said he expects any Supreme Court ruling will be at least a year away.

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