The action taken by a group of growers played out in the Wellington High Court for a marathon 11 weeks late last year and has growers seeking a ruling that MPI was negligent in enabling the entry of Psa and as a result has a duty of care to growers who need be compensated.
Kiwifruit group spokesman John Cameron said the group believed a case for negligence by the government agency in failing to manage the biosecurity risk of Psa had been established during the case.
But the Crown’s lawyer had maintained it was not a classic negligence case, with biosecurity making it a different matter and not an area where claims of negligence had extended before.
The Crown had maintained biosecurity risks occur without specific fault and the tort of negligence was not applicable.
The group’s lawyers argued the government said it did not have a duty of care because acknowledging one would open it up to other litigation.
Cameron maintained the Mycoplasma bovis outbreak is a classic example of such a situation where the government might feel exposed to claims.
“It appears the government also relied upon some cases from the United Kingdom to show duty of care could not be claimed but more recently there have been cases that indicate this may not be so.”
They include a recent Supreme Court ruling in the UK where it was found the police owed duty of care to avoid causing an injury to a member of the public in circumstances where danger was caused by their own conduct.
“The court case here is going to raise issues around how New Zealand law is made up.
“The judge appreciates her ruling is going to have some significant consequences for all parties and what claims could be made in the future.”
Timing for the decision remains uncertain but Cameron had put his money on early May.
“And there is no doubt there are likely to be appeals either way and she will want to minimise the ability of parties to appeal widely against the ruling.”
In arguing the case the growers’ lawyers had likened MPI’s authority and responsibility over biosecurity and plant importation to that of local bodies issuing building consents, with case law from the leaky homes issue used to bolster that argument.
The growers argued the source of the incursion was from kiwifruit pollen bought in from China but that was disputed by the Crown.
Cameron said it became evident during the trial evidence that MPI had indemnity insurance cover against such a claim, which by default supported the duty of care owed to growers and highlighted the Crown’s concerns it could be liable for any negligence that might arise.
Genetic typing has determined the Psa strain came from China.
Cameron said his legal team put the odds of the judge ruling in favour of growers at 60:40, up from 50:50 at the start of the trial.
