hamilton v papakura district council
In other words, if it knew that the water was to be used for that purpose, Papakura had enough information to exercise its skill and judgment in respect of the quality of the water that it supplied to the Hamiltons. Subscribers can access the reported version of this case. The Court of Appeal also quoted that passage, slightly more fully, as follows: 21. The Ashington Piggeries case did not apply because in this case there was one supply of one product. In practice, they operate their own treatment and monitoring procedures. 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. 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. Social value of the activity - plaintiff dove into old quarry and broke his neck, ignoring Council's "no swimming" signs. Watercare in its statement of defence responded that the bulk water which it supplied to Papakura was potable and complied with the 1995 Standards. In our view the same approach has to be applied in this case. (Wagon Mound No. p(x)=(5!)(.65)x(.35)5x(x! Cited Rylands v Fletcher HL 1868 The defendant had constructed a reservoir to supply water to his mill. Only full case reports are accepted in court. In Hamilton v Papakura DC & Watercare the plaintiff relied on the water supply which contained a toxin that damaged its crop. They refer to Ashington Piggeries and in particular to a passage from Lord Diplock in that case. Indexed As: Hamilton v. Papakura District Council et al. 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). 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. Council supplied water to minimum statutory standards. The Court of Appeal stated its conclusion about the negligence causes for actions against both defendants in this way: 31. Subscribers are able to see a list of all the cited cases and legislation of a document. Enhance your digital presence and reach by creating a Casemine profile. ), refd to. 39]. Hamilton & Anor v. Papakura District Council (New Zealand) 1. 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. We do not make allowances for learner drivers. It may be the subject of written memoranda, which should be filed in accordance with a timetable to be laid down by the Registrar. It follows from their Lordships finding on foreseeability that this cause of action must fail, along with the negligence claim. OBJECTIVE test. Alternative medicine, patient died while receiving treatment - traditional practitioners do not hold themselves out as being orthodox professionals, so we do NOT expect the same standard. 51. The court must, however, consider all the relevant evidence. Torts - Topic 60 Must ask whether a doctor has acted as a reasonable doctor would. These standards and processes are of course focused on risks to human health. Gravity of risk - special risk to plaintiff should be taken into account if the defendant KNOWS about it. The Hamiltons and the other growers were therefore not choosing among a range of different products which Papakura could adjust to match their purpose. vLex Canada is offered in partnership with: Liability of municipalities - Negligence - Re water supply - [See, Negligence - Duty of care - General principles - Scope of duty - [See, Negligence - Duty of care - Duty to warn - [See, Nuisance - General principles and definitions - Actionable nuisance - What constitutes - [See, Nuisance - Water pollution - General - [See, Request a trial to view additional results, Phillip v. Whitecourt General Hospital et al., (2004) 359 A.R. 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. Do you support legal recognition of marriages between persons of the same sex? Kidney dialysis requires very high quality water, much higher than the standard, with the quality typically being achieved by a four stage filtration process. 26. Held, not liable because they acted responsibly and took reasonable steps. Although the decision in Hamilton v Papakura District Councilruled that no liability exists where it is not possible to foresee the type of damage caused, this case is clearly distinguished for the above reason. The courts are plainly addressing the question of foreseeability. 2. And in the case of Hamilton v Papakura Council 3 , where a small amount of chemicals in normal water damaged highly sensitive tomato plants . 5. System caused flooding. 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). Professionals have a duty to take care, not a duty to always be right. 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]. Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11 (Supreme Court) Misrepresentation inducing contract, liability of council for defective LIM, assessing and apportioning damages in contract and tort. 19. It follows that their Lordships agree with the courts below that the claims in negligence against the two defendants cannot be sustained. ), refd to. (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. Moreover, the defendants came into court asserting that they had supplied Welsh coal of suitable quality. Factors to be taken into account by a reasonable person, to determine if there has been a breach: 5. the above matters must be balanced out. Aucun commentaire n'a t trouv aux emplacements habituels. The Hamiltons contended that the water had been contaminated by the herbicide triclopyr which was a component of a weed spray marketed under the name Grazon. The question of negligence is for the COURTS to decide, NOT for the profession in question. As the Court of Appeal says, the finding of such reliance is very fact dependent. First, the evidence establishes that, even if it had exercised its skill and judgment, Papakura would not have identified that the water was liable to damage the Hamiltons plants. Attorney General ex rel. [1] Background [ edit] The Hamiltons grew hydroponic cherry tomatoes, using the Papakura town water supply to supply their water needs. 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. The Hamiltons must also show that Papakura knew of their reliance. Driver suffered blow to eye by insect and ran into back of lorrie. The plants were particularly sensitive to such chemicals. [paras. Held that risk of flooding was too great to comply only to the minimum standards, they should have gone further. Consider a random sample of five solar energy cells and let xxx represent the number in the sample that are manufactured in China. . If the cockroaches escaped , it is fairly obvious that they would cause damage . Hamilton V Papakura District Council [2002] NZPC 3 ; [2002] UKPC 9 ; [2002] 3 NZLR 308 (28 February 2002). ]. They sued for damages for breach of the condition in section 14(1) of the Sale of Goods Act 1893. The trial judge dismissed the Hamiltons' claims and the Court of Appeal of New Zealand affirmed the decision. Water supply in the wider Auckland area then became the responsibility of the Auckland Regional Council which, in 1992, established Watercare and transferred its water and waste water undertaking to it. Open web Background Video encyclopedia About us | Privacy Home Flashback 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. It is true, of course, as the majority point out, that Papakura sold only water and only water coming from one particular source. Denying this sacred rite to any person is totally unacceptable. 520 (Aust. Hamilton v. Papakura District Council (2002), 295 N.R. Employer had insufficient resources to cover floor with sawdust. It is also obliged to manage its business efficiently with a view to maintaining prices for water and waste water services at the minimum level consistent with the effective conduct of that business and the maintenance of the long term integrity of its assets (s707ZZZS). Landowner constructed drainage system to minimum statutory standards. 63]. At the other end of the spectrum are very small specialist water users, like kidney dialysis patients. 43. 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. The dispute centres around the first two. 3. expense, difficulty and inconvenience of alleviating the risk CA held that the defendant was physically incapable of taking care and was NOT responsible. It is sharply different from a standard case where, in negotiation with the seller, the buyer can choose one among a range of different products which the seller may be able to adjust to match the buyer's purpose. The factual basis for this submission is however relevant to the critical question of reliance to which their Lordships now turn. . 14. Standard of care expected of drivers is the same for ALL drivers. Judicial Committee. Watercare's monitoring was also carried out in accordance with the Drinking Water Standards. 49. 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. Get 1 point on providing a valid sentiment to this The Court continued: 33. 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. Held: Dismissing the companys appeal, the water supplier had a general duty to supply water to accepted standards. 45. 42. ), refd to. Where a company or other organisation take such steps, it may be more readily inferred that they are not in fact relying on the skill and judgment of the local water authority to supply water of the desired quality. Hamilton v Papakura District Council (CM 97) NZ Court of Appeal Foreseeability of harm Facts There were growers of cherry tomatoes They were growing the tomatoes hydroponically They were spraying chemicals (weed spray), and was a lot of spraying around big lake The lake supplied some of the water for the cherry tomatoes (hydroponic) A 55. View Rylands v Fletcher.pdf from LAW 241 at Auckland. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. 324, refd to. Burnie Port Authority v. General Jones Pty. 63. 2. what a reasonable person would do in response to risk It has no ability to add anything to, or subtract anything from, the water at that point. Flashcards. Driver unaware he was suffering from a condition that starved the brain of oxygen and prevented him functioning properly. The only effective precaution would have been some kind of permanent filtration or treatment system. 61]. The monitoring is not designed to achieve the very high levels proposed in the duties asserted by the Hamiltons. 4. any conflicting responsibilities of the defendant Manchester Liners Ltd. v. Rea Ltd., [1922] 2 A.C. 74, refd to. Hamilton v Papakura District Council. As indicated there, s16(a) (s14(1) of the UK Act) imposes strict liability on the seller if its conditions are satisfied. But, as the Court of Appeal said, Lord Diplock is considering a situation distinct from the present one. Giving the opinion of the court, Thomas J explained: 65. Such knowledge might indeed arise directly from the Drinking Water Standards : for instance, those for 1984 had expressly stated that, while the safe level of boron for human intake is 5g/m3, some glasshouse plants are damaged above 0.5g/m3. No evidence was called to support the imposition of such a wide ranging, costly and burdensome duty. The Hamiltons argued also that Watercare had created a nuisance under the principle in Rylands v. Fletcher. In particular they held ([2000] 1 NZLR 265, 277, paras 50 and 51): 61. 0 Reviews. They contend, however, that they made that purpose known by implication . ), refd to. 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. There is no suggestion of any breach of those Standards or indeed of any statutory requirements. Watercare's contractors had sprayed gorse with Grazon in part of the catchment area for the lake from which the town water supply was taken. 18. Rebuilding After the COVID-19 PANDEMIC. Was Drugs-Are-Us negligent? 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. 48. 47. The mere fact that certain herbicides may kill or damage certain plants at certain concentrations does not itself establish such a risk. Hamilton (appellants) v. Papakura District Council and Watercare Services Ltd. (respondents) ( [2002] UKPC 9) Indexed As: Hamilton v. Papakura District Council et al. Cambridge Water Co. v. Eastern Counties Leather Plc, [1994] 2 A.C. 264; 162 N.R. That water was sold to the Hamiltons by the Papakura District Council (Papakura), the first respondent, who obtained it from the second respondent, Watercare Services Limited (Watercare), the main bulk water supplier for the Auckland area which includes Papakura. A resource management case, Gilbert v Tauranga District Council involving an . In our view that was a significant omission. Why is this claim significant? Papakura could not guarantee that elevated boron levels would not occur again in the future and it made it explicit that it did not make any warranty express or implied that water quality will be adequate for any particular use other than a general commitment to supplying water which meets the drinking water standards. The only possibly relevant term of the contract with users to which their Lordships were referred was the statement in the standard water supply bylaw that the water be potable and wholesome . Norsildmel knew that the herring meal was to be used as an ingredient in animal feeding stuffs to be compounded by Christopher Hill. Waikato District Council has started a $4 million upgrade at Huntly train station this week, which will see . 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. 35. 259 (QB), Court of Queen's Bench of Alberta (Canada). Employee slipped. (There was some question whether the 1984 rather than the 1995 Standards were applicable. Courts are NOT bound to find a doctor not liable because of common practice. If the duty is put in terms of all uses, even all uses known to Papakura, the duty would be extraordinarily broad. The Court of Appeal put the matter this way: 38. 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). Car ran out of control and killed two pedestrians. Held he was NOT negligent because he was unaware of the disabling event. The water would not have been supplied on the basis of such a particular term. 24. It is for these reasons that their Lordships will humbly advise Her Majesty that the appeal should be dismissed. Judicial Committee of the Privy Council 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. Their Lordships accordingly do not find it necessary to discuss other possible answers to this head of liability presented by Watercare or the issues about the relationship between liability in negligence, nuisance and Rylands v Fletcher considered in the House of Lords in Cambridge Water Company v Eastern Counties Leather Plc [1994] 2 AC 264, in the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 and by two Judges of the New Zealand Court of Appeal in Autex Industries Ltd v Auckland City Council [2000] NZAR 324. The Court of Appeal held, however, that Ashington Piggeries could be distinguished because, in that case the particular purpose as a food for mink was communicated and the expertise of the compounders was to be relied upon not to provide a compound toxic to mink. 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. Yes. Torts - Topic 60 In the present case there was, of course, evidence that the Hamiltons employed a consultant, Mr van Essen, who contacted Papakura's water engineer to discuss nutrient and element levels in the town-water supply. It was a bulk supplier. 11, 56]. * Enter a valid Journal (must He went on to hold that, even had he found causation established, the Hamiltons could not succeed on the causes of action they pleaded. The simple fact is that it did not undertake that liability. Session 4 Planning and Financial Management Required Reading: Palmer, pp 253-300 LGA 2002 ss 100-120 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 Review: Local Government (Rating) Act 2002 Rating Valuations Act 1998 Session 5 Governance and By-laws Required Reading: Palmer, pp 203-251, 535-583 LGA 2002 ss 10-17A, 19-25, 75- 82, review Schedule 7 Bylaws Act 1910 . 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. This appeal was heard by Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Sir Andrew Leggatt, and Sir Kenneth Keith, of the Judicial Committee of the Privy Council. 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. 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. Hamilton and M.P. 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. Before the Board, as in the Court of Appeal, the claims against Papakura are in contract and negligence and against Watercare are in negligence and nuisance and under the principle in Rylands v Fletcher (1868) LR 3 HL 330. 67. This article is within the scope of WikiProject New Zealand, a collaborative effort to improve the coverage of New Zealand and New Zealand-related topics on Wikipedia. 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. Standard of a reasonable driver was applied to an 11 year old who ran over her mother. 12 year old threw a metal dart, and accidentally hit girl in eye. Explain the difference between intrinsic and extrinsic motivation. H.C.), refd to. In the present case the Court of Appeal, while having regard to the established pattern of trading between the parties, do not appear to have considered what inferences could be drawn from it. It buys the water in bulk from Watercare and it onsells that water to ratepayers and residents on the basis of a standard charge. We agree with the advice of the majority set out in the opinion of Sir Kenneth Keith so far as it concerns the Hamiltons claims based on negligence, nuisance and Rylands v Fletcher (1868) LR 3 HL 330. In essence, the purpose must be sufficiently particular to enable the seller to use his skill and judgment in making or selecting the appropriate goods: Hardwick Game Farm [1969] 2 AC 31, 80C per Lord Reid. Hamilton v Papakura District Council (New Zealand) UKPC 9 is a cited case in New Zealand regarding liabililty under tort for negligence under Rylands v Fletcher. It carries out four tests a week as prescribed by the Ministry of Health in the Drinking Water Standards at various sampling points. 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. Hamilton & Anor v. Papakura District Council (New Zealand) [ 2002] UKPC 9 (28 February 2002) Privy Council Appeal No. [para. The Court of Appeal reviewed the evidence and summarised its effect (Hamilton v Papakura District Council [2000] 1 NZLR 265, 277, para 49): 56. If it is at the end of a clause, it . At this stage of the inquiry, the Hamiltons are to be assumed to have established that they had made known to Papakura that they wanted the water for the particular purpose of covered crop cultivation. Question of foreseeability. According to the statement of claim, Watercare had duties: 29. The Court referred to its conclusion that the High Court was correct in deciding that the damage complained of was not reasonably foreseeable as required to establish liability in negligence. The Hamiltons appealed. 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). The Hamiltons would have known this. In this case it is accepted that the third precondition is satisfied. Held that the solicitor was negligent, because the whole practise was negligent. He summarised the approach to be applied in this way ([1969] 2 AC 31, 115E). Tackle in soccer game held to be negligent. Bag of sugar fell on plaintiff's head. Its objective, it says, is to provide water fit for human consumption in accordance with the Drinking Water Standards. 54. 163 (PC), G.J. Held: The defendant . Standard of reasonable adult is usually applied to 15-16 year olds. 37. and Ponsness-Warren Inc. (1976), 1 A.R. Cambridge Water Company v Eastern Counties Leather Plc. ), refd to. Hamilton v. Papakura District Council (2002), 295 N.R. 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. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. The law of negligence was never intended to impose such costs and impracticability. Proof of negligence - In the words of the Supreme Court of Canada in Munshaw Colour Service Ltd v City of Vancouver (1962) 33 DLR (2d) 719,727, supported by the evidence of the general manager of Manukau Water (a neighbouring district). . An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. There is a similar offence under the Health Act 1956 s60 and that Act also empowers Medical Officers of Health to require local authorities to cease to supply water for domestic purposes from sources which are dangerous to health (s62). It concluded its discussion of this head of claim as follows: 15. 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. If it is at the end of a clause, it . 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. Hamilton v Papakura District Council [2002] 3 NZLR 308 (Privy Council) . The claimant had failed to show that it had brought its particular needs to the attention of the water company, and a claim in contract failed. An OBJECTIVE test was applied, and it was found that he had not taken reasonable care, insanity made no difference. Cammell Laird & Co. v. Manganese Bronze and Brass Co., [1934] A.C. 402 (H.L. Held that use of the street by blind people WAS foreseeable, so should defendants were in breach of duty. 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Eastern Counties Leather Plc, [ 1922 ] 2 AC 31 115E... ; Watercare the plaintiff relied on the basis of a reasonable doctor would Zealand ) 1 small... Same sex and burdensome duty particular term approach to be used as an ingredient in feeding! By implication has acted as a reasonable driver was applied to an year. He summarised the approach to be applied in this way: 38 not undertake that liability be in! Of Alberta ( Canada ) girl in eye Council involving an Hamiltons ' claims and the end! Basis of a reasonable doctor would to Ashington Piggeries case did not undertake that liability girl eye. Particular to a passage from Lord Diplock in that case to achieve the very high levels in... These Standards and processes are of course focused on risks to human health Appeal says the! Ran out of control and killed two pedestrians reasonable driver was applied, and it was found that he not... Also that Watercare had created a nuisance under the principle in Rylands v..... Laird & Co. v. Manganese Bronze and Brass Co., [ 1994 ] 2 A.C. 264 ; N.R... That purpose known by implication list of all the cited cases and legislation of a,. Of such a risk Standards, they should have gone further Hamiltons must also show that Papakura of. He summarised the approach to be applied in this case 2002 ] NZLR! Old threw a metal dart, and it onsells that water to ratepayers and residents on the of... Dc & amp ; Watercare the plaintiff relied on the basis of a., which will see, as follows: 21 they refer to Ashington Piggeries case not. Persons of the Sale of Goods Act 1893 was too great to comply only the. No swimming '' signs of foreseeability Diplock in that case obvious that they that... Practise was negligent, because the whole practise was negligent, because the practise! Christopher Hill the cited cases and legislation of a standard charge contend, however, that made... Manchester Liners Ltd. v. Rea Ltd., [ 1934 ] A.C. 402 ( H.L amp ; v.... Mere fact that certain herbicides may kill or damage certain plants at certain concentrations does itself... Law 241 at Auckland '' signs was found that he had not reasonable... Are very small specialist water users, like kidney dialysis patients the Ashington Piggeries in. Disabling event actions against both defendants in this way: 38 persons of the spectrum very! Version of this case there was one supply of one product reasonable care, not a to! Held he was unaware of the Court of Appeal stated its conclusion the.
hamilton v papakura district council