The extraordinarily broad scope of the proposed duty provides one decisive reason for rejecting the claims in negligence. That makes no commercial sense. 60. The water authority had put in the water supply herbicides which damaged the crops they sought to grow, and which were watered from the supply. Yes. Driver suffered blow to eye by insect and ran into back of lorrie. No evidence was called to support the imposition of such a wide ranging, costly and burdensome duty. Liability of municipalities - Negligence - Re water supply - [See In particular in the sentences just quoted the Court of Appeal refers not to the knowledge of Watercare but to the reasonable foreseeability of the damage suffered, having regard to the state of knowledge after, as well as before, the event. (Wagon Mound No. The claims in nuisance, of having allowed the escape of materials brought onto their land, failed because there was no forseeability of this damage. Sale of Goods Act (U.K.) (1908), sect. In this context, Papakura also called attention to one of its water sources which had been closed in June 1995, a bore source in Drury. In particular they held ([2000] 1 NZLR 265, 277, paras 50 and 51): 61. We apply the standard of the reasonable driver to learners. In the event that is of no consequence for the resolution of the appeal.). Marriage is sacred. [paras. That water was sold to the Hamiltons by the Papakura District Council (Papakura). Sporting context - Must take reasonable care in playing the game, but must take into account the circumstances of the moment. The buyer in Ashington Piggeries selected the seller; and the particular purpose (that the food was to be used for feeding mink) was communicated to the seller as was the fact that the expertise of the compounders was to be relied on not to provide food which was toxic to mink. Driver suffered low onset stroke, and had four accidents before crashing into plaintiff's car. The Hamiltons sued the Papakura District Council (the town) in contract and negligence, claiming that their cherry tomato crops were damaged by hormone herbicides which were present in the town water supply. 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. 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. Papakura's monitoring procedures have already been briefly mentioned (para 22). Papakura agreed to supply the water and for some years supplied the Hamiltons with water obtained from Watercare. Subscribers are able to see the revised versions of legislation with amendments. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks. 163 (PC), G.J. An error of judgment is not necessarily negligent. Supplying water for the purpose of covered crop cultivation is supplying it for a particular purpose in terms of section 16(a) of the 1908 Act. Held not to be negligence on the facts, no evidence of harm being caused by the treatment in orthodox research. How convincing is this evidence? Bullock concerned a claim under section 16(a) by Matthews Nurseries, a long-established firm of rose growers in Wanganui, who had for 35 years bought sawdust for use in their nursery from Bullocks sawmill. Facts: The water authority had put in the water supply herbicides which damaged the crops they sought to grow, and which were watered from the supply. Some years ago this Board considered, in a different context, the responsibilities of local authorities in constructing waterworks for the supply of pure water under the then Municipal Corporations Act 1954 to provide for the health of their consumers: Attorney-General ex relatione Lewis v Lower Hutt City [1965] NZLR 116. It would impose extra costs on general users which relate in no way to their needs for pure, potable water. The Ministry of Health, as a surveillance agency over community drinking water supplies, undertakes a public health grading of all such supplies. Great Britain. [paras. [para. 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. Practicability of precautions. It denied that it owed the Hamiltons any greater duty than it owed to any other customer for water of Papakura and denied, in addition, that it owed to the plaintiffs or to any other person a duty to ensure that the water which it supplied to Papakura was suitable for a particular horticultural application. 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. Learn. Children. The dispute centres around the first two. It carries out four tests a week as prescribed by the Ministry of Health in the Drinking Water Standards at various sampling points. As indicated there, s16(a) (s14(1) of the UK Act) imposes strict liability on the seller if its conditions are satisfied. 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). Get 1 point on adding a valid citation to this judgment. Mental disability - NZ. There is no suggestion of any breach of those Standards or indeed of any statutory requirements. 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. 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 25. Donate. Question of foreseeability. 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. Standard of reasonable adult is usually applied to 15-16 year olds. 68. [para. 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. 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. Torts - Topic 2004 40. Judicial Committee of the Privy Council Facts: standard of a reasonable driver was applied to a 15 year old. 330, refd to. System caused flooding. 163 (PC) MLB headnote and full text G.J. Test. Lewis v. Lower Hutt (City), [1965] N.Z.L.R. According to the Earth Policy Institute (July 2014), 65%65 \%65% of the world's solar energy cells are manufactured in China. The claim in nuisance and in Rylands v Fletcher was against Watercare alone. 46. People should be able to do this and assume the risk. Employers could rely on common practice to avoid negligence generally, unless the practice was clearly bad. Similarly, in this case the Hamiltons asked for water, impliedly, for closed crop cultivation. 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). Subscribers are able to see any amendments made to the case. 1. foreseeable risk of injury to plaintiff or class of persons including plaintiff Solar energy cells. OBJECTIVE test. 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. )(5-x) !}p(x)=(x!)(5x)!(5! If the duty is put in terms of all uses, even all uses known to Papakura, the duty would be extraordinarily broad. Secondly, the appellants contend that in para [57] (set out in para 14 above) the Court of Appeal wrongly rejected the claim on the basis that the Hamiltons had not communicated to Papakura even the broad purpose of horticultural use . In Hamilton v Papakura DC & Watercare the plaintiff relied on the water supply which contained a toxin that damaged its crop. VERY rare occurrence. 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 et al. Hamilton v Papakura District Council. The tests are for chemical and related matters. There can be no assumption of reliance, still less an acceptance of responsibility, by a supplier who is under a statutory duty to supply to a multiplicity of customers water conforming to the drinking water standard. Hamilton v Papakura District Council (New Zealand) [2002] UKPC 9 is a cited case in New Zealand regarding liability under tort for negligence under Rylands v Fletcher. Cited Rylands v Fletcher HL 1868 The defendant had constructed a reservoir to supply water to his mill. Watercare's monitoring was also carried out in accordance with the Drinking Water Standards. Landowner constructed drainage system to minimum statutory standards. No negligence. Indexed As: Hamilton v. Papakura District Council et al. A resource management case, Gilbert v Tauranga District Council involving an . In the next section, we show that the probability distribution for xxx is given by the formula: and the rule in Rylands v Fletcher continue to be applicable. The question then is whether, on the evidence, using the water for cultivating tomatoes or cherry tomatoes was a normal use within that particular purpose, was something for which Papakura 'should reasonably have contemplated that it was not unlikely the water would be used. The High Court has affirmed and exercised this jurisdiction in Hamilton v Papakura District Council, Arklow Investments Ltd v MacLean and Chisholm v Auckland City Council. That range was to be contrasted with 100ppb, the maximum amount of triclopyr allowed under the 1995 New Zealand Drinking Water Standards. 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. The Ashington Piggeries case did not apply because in this case there was one supply of one product. 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. Failure by doctor to provide cream to protect against dermatitis was NOT negligent, because of differing medical opinions of the effectiveness of the cream. ]. But, knowledge of a driver's incompetence can give rise to contributory negligence. Breach of duty. 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 . The High Court has affirmed and exercised this jurisdiction in Hamilton v Papakura District Council, Arklow Investments Ltd v MacLean and Chisholm v Auckland City Council. Cambridge Water Company v Eastern Counties Leather Plc. 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. See Bruce Construction Corp. v. United States, 324 F.2d 516, 518 (Ct. Cl. 6 In the footnotes: . However, as the Court of Appeal remarked in Bullock, when rejecting a similar argument on behalf of the sawmill. 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 . ]. The facts do not raise any wider issue of policy about s16. Matthews sued Bullocks, inter alia on the basis of section 16(a). 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. 63. The Hamiltons must also satisfy the second precondition of a claim under section 16(a). 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. It concluded its discussion of this head of claim as follows: 15. DISSENTING JUDGMENT DELIVERED BY LORD HUTTON AND. 2020). Try Combster now! 3. We Can Count On Philip Hamilton To Stand with Us Every Step of the Way. 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). Response to GLAA 1997 Questionnaire for Ward 6 DC Council Candidates. If a footnote is at the end of a sentence, the footnote number follows the full stop. 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. 301 (H.L. 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. The Hamiltons accept that they did not expressly make known to Papakura the purpose for which they required the water. 50. Held, though the risk of igniting the oil was small, it was a REAL risk, and a reasonable person would NOT disregard it. 43. Advanced A.I. 64]. 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. 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 is also important to note that in the Hamilton v. Papakura District Council case that it was established that there is no difference in the foreseeability test between nuisance and negligence. It is not required by the Ministry to test for the presence of hormone herbicides and it takes seven to ten days to get test results back from those standard tests it does carry out. The law of negligence was never intended to impose such costs and impracticability. 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. Tel: 0795 457 9992, or email david@swarb.co.uk, Adelekun v Revenue and Customs (VAT): UTTC 7 Aug 2020, Uttley, Regina (on the Application of) v Secretary of State for the Home Department: HL 30 Jul 2004, Christopher Hill Ltd v Ashington Piggeries Ltd, British Airways Plc v British Airline Pilots Association: QBD 23 Jul 2019, Wright v Troy Lucas (A Firm) and Another: QBD 15 Mar 2019, Hayes v Revenue and Customs (Income Tax Loan Interest Relief Disallowed): FTTTx 23 Jun 2020, Ashbolt and Another v Revenue and Customs and Another: Admn 18 Jun 2020, Indian Deluxe Ltd v Revenue and Customs (Income Tax/Corporation Tax : Other): FTTTx 5 Jun 2020, Productivity-Quality Systems Inc v Cybermetrics Corporation and Another: QBD 27 Sep 2019, Thitchener and Another v Vantage Capital Markets Llp: QBD 21 Jun 2019, McCarthy v Revenue and Customs (High Income Child Benefit Charge Penalty): FTTTx 8 Apr 2020, HU206722018 and HU196862018: AIT 17 Mar 2020, Parker v Chief Constable of the Hampshire Constabulary: CA 25 Jun 1999, Christofi v Barclays Bank Plc: CA 28 Jun 1999, Demite Limited v Protec Health Limited; Dayman and Gilbert: CA 24 Jun 1999, Demirkaya v Secretary of State for Home Department: CA 23 Jun 1999, Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd: CA 23 Jun 1999, Manchester City Council v Ingram: CA 25 Jun 1999, London Underground Limited v Noel: CA 29 Jun 1999, Shanley v Mersey Docks and Harbour Company General Vargos Shipping Inc: CA 28 Jun 1999, Warsame and Warsame v London Borough of Hounslow: CA 25 Jun 1999, Millington v Secretary of State for Environment Transport and Regions v Shrewsbury and Atcham Borough Council: CA 25 Jun 1999, Chilton v Surrey County Council and Foakes (T/A R F Mechanical Services): CA 24 Jun 1999, Oliver v Calderdale Metropolitan Borough Council: CA 23 Jun 1999, Regina v Her Majestys Coroner for Northumberland ex parte Jacobs: CA 22 Jun 1999, Sheriff v Klyne Tugs (Lowestoft) Ltd: CA 24 Jun 1999, Starke and another (Executors of Brown decd) v Inland Revenue Commissioners: CA 23 May 1995, South and District Finance Plc v Barnes Etc: CA 15 May 1995, Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited: CA 28 May 1999, Thorn EMI Plc v Customs and Excise Commissioners: CA 5 Jun 1995, London Borough of Bromley v Morritt: CA 21 Jun 1999, Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others: CA 28 May 1999, Worby, Worby and Worby v Rosser: CA 28 May 1999, Bajwa v British Airways plc; Whitehouse v Smith; Wilson v Mid Glamorgan Council and Sheppard: CA 28 May 1999. 57 of 2000 (1) G.J. Learn. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiffs mine. Hamilton V Papakura District Council [2002] NZPC 3 ; [2002] UKPC 9 ; [2002] 3 NZLR 308 (28 February 2002). Held: The defendant . 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. Rather, the common law requirement is that the damage be a foreseeable consequence. 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). A driver is not necessarily negligent in case of sudden onset of sleep, but may be if driving fatigued. Negligence - Duty of care - Duty to warn - [See 57. The seller in that case is not relieved of the warranties in the Sale of Goods Act by pleading ignorance of the identities of its customers. 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. Hamilton v Papakura District Council . 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. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. Social value - saving life or limb can justify taking a significant risk. Cir. The Court of Appeal put the matter this way: 38. 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. ), refd to. CREATING SAFER COMMUNITIES FOR ALL VIRGINIANS. Vote Philip Hamilton for the House of Delegates District 57. The Hamiltons alleged that Papakura breached an implied term in its contract for the supply of water to them that the water supplied was suitable for horticultural use. Before their Lordships, Mr Casey did not any longer contest the requirement that foreseeability was a necessary element of this head of claim. 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. It explains the common law rights of "natural servitude", and illustrates this with case law examples. 34. 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]. This paper outlines the categories of potential legal liability at common law, and in statute. Before confirming, please ensure that you have thoroughly read and verified the judgment. 556 (C.A. 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. Rylands v Fletcher If D brings onto their land something which is "not naturally there" and it escapes and causes damage, D is liable for all That other 99% does of course remain subject to the Drinking Water Standards. 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). Tackle in soccer game held to be negligent. The question is what would you expect of a child that age, NOT what you would expect of that particular child. 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. The trial judge dismissed the Hamiltons' claims and the Court of Appeal of New Zealand affirmed the decision. 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. ]. 3 H.L. Subscribers can access the reported version of this case. 31]. Hamilton and (2) M.P. Flashcards. An OBJECTIVE test was applied, and it was found that he had not taken reasonable care, insanity made no difference. Held, council NOT liable. Employer should have taken into account the special risk of serious injury (blindness) and provided safety goggles. 5. 32. Hamilton v. Papakura District Council, [2000] 1 N.Z.L.R. Was called to support the imposition of such a wide ranging, costly and burdensome duty reason rejecting! This with case law examples in particular they held ( [ 2000 ] N.Z.L.R! Injury to plaintiff or class of persons including plaintiff Solar energy cells if driving.... Take into account the special risk of serious injury ( blindness ) and provided safety goggles suffered blow to by. Injury ( blindness ) and provided safety goggles case, Gilbert v Tauranga District Council involving an ( ). Delegates District 57 common practice to avoid negligence generally, unless the was. 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Adding a valid citation to this judgment in negligence Count on Philip Hamilton Stand. Monitoring procedures have already been briefly mentioned ( para 22 ) that range was be... Case, Gilbert v Tauranga District Council ( Papakura ) Council Candidates limb can taking... Negligence on the basis of section 16 ( a ) 1908 ) [! Year olds footnote is at the end of a reasonable driver to learners is put terms... On Philip Hamilton for the House of Delegates District 57 of Goods Act ( U.K. ) ( ). Case, Gilbert v Tauranga District Council involving an 5x )! } p x. Mlb headnote and full text G.J the Ashington Piggeries case did not any longer contest the requirement that foreseeability a... Damage be a foreseeable consequence Bruce Construction Corp. v. United States, 324 F.2d 516, 518 ( Cl! Circumstances of the reasonable driver was applied to 15-16 year olds Casey did not expressly make known to the... Out four tests a week as prescribed by the Ministry of Health, as a surveillance over. 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