Perre V Apand : Negligence Towards Agricultural Infectious Disease Management

Question

Task: A brief report on Frank Perre v Apand Pvt Ltd (1999) HCA 36..

Answer

Facts: On the Perre v apand case, the petitioners are a group of potato farmers in the southern part of Australia who exports their crops to the western part of Australia. It was because of the casualness and negligence of the defendant that an infectious disease termed as bacterial wilt spread in the farmland of the potato farmers. Because of the risk of further more spread of this contagious disease, the potatoes from the infected and nearby farmland were banned by Western Australian Regulation. On the Perre v apand case the farmers file a law suite against the defenders convicting them guilty of infecting their farmland with bacterial wilt while claiming damage as a course of owing duty of care.

Issues

• Do the defenders owe a duty of care to the petitioner, although the petitioners were not damaged directly by the defenders, it was the negligence of the defenders which caused damage to the petitioners?
• Are the criteria for determining the duty of care is a mere pure economic loss that happened to defenders?

Laws relevant to Perre v apand case
Duty of Care – This term visualizes that any probable loss should be avoided which may be caused due to carelessness or negligence of the person/party carrying out the duty. Every person is legally obliged to avoid probable risks while doing any work so that all sorts of harm should be avoided. The same perspective was being raised in the Donoghue v Stevenson case which reflected the damage that occurred on neighbors.

Knowledge- Whilst investigating the idea of duty of care the knowledge factor should be considered. There should be knowledge among the duty conductors about the risks involved and it should be predicted way before its happening.

Reasonable Foreseeability- This factor validates the Duty of care, in which the actions of a person (a prudent one) are being examined by the scope of foreseeability in ordinary conditions. The necessary precautions could be taken by this, which will reduce the chance and risk of harm to the neighbour [1].

Vulnerability- This is the condition in which the defendant party had more control over the conditions and activity conducted causing harm to the petitioner. On this Perre v apand case the economic loss occurred to the petitioner is accountable to the defendant. The petitioner has also the responsibility of protecting himself from the risks occurred. If the petitioner is deemed to have not taken this responsibility, then he cannot impose petition on the rival party, even if the defendant had a major role in making the loss occurred [2].

Pure economic Loss – Only the losses which are in the structure of physical injuries are observed and could be assessed. The losses caused in other aspects may not be estimated a need extra effort to be calculated. In this case a lot of criteria and parameters like future loss, the loss occurred in other aspects, etc. need to be assessed. It will be very hard to estimate the indirect loss that occurred.

Arguments of the Parties and Analysis-
Arguments put forward by the Petitioners: The Perre v apand case saw the petitioners had put forward the argument that the economic loss caused by the activities of the defendant. Since the defendants were accused of being a vulnerable class, appellants were expecting the defendants to pay compensation to the damages caused.

Arguments put forward by the Defenders- In this case the defenders had put forward the argument investigating the association and affiliation between the petitioners and the defenders in a way to be kept responsible for only the direct and pure economic loss incurred to the petitioners.

Analysis of the arguments
While evaluating the Perre v apand case on the case of duty and negligence, various factors should be contemplated and considered thoroughly. Below are given the various determinants for Duty of care put forward by Justice Douglas in another case. [3].

• The probable damage was reasonably predicted.
• The defenders had previous knowledge of the risk.
• Absence of any indirect liability.
• Defender possessed knowledge regarding the ascertainable class.
• No, any loss was incurred to the defender in the process for duty of care.
• The loss incurred was due to the activities of the defender.

From the factors proposed above, the Perre v apand case can be evaluated efficiently. Each parameter should be evaluated using these factors. In the present case, potato farmers had anticipated earlier that the infection of the bacterial wilt in any of the farm will risk other farmers in the radius of 20 km. If considered the second factor, the exporters i.e, the defenders already knew the transfer and export of the potato from southern Australia to western Australia is a profitable job. Hence any potential risk to the crop will result in heavy economic loss to the farmers. The infection of the disease has led to an export ban for 5 years. Hence the liability of the defenders can only be determined after calculating the probable loss going to occur in the coming 5 years. The loss of the farmers can only be calculated after considering the profit earned by the farmers in the previous period. The defenders were aware of the fact that the petitioners consisted of an ascertained class of people and any risk or damage to the farmland will affect the whole class of people. In the previous cases like [4], the factor of the class determinant was not contemplated. After the happening of this case, the situation has changed and then after then, the defenders were also charged with the duty of care if considerable carelessness had committed from their behalf. The loss caused economically was caused because of the direct activities of the defenders.

The judgment made by the court
Seven out of five judges of the panel had the opinion that the defenders were indebted with the duty of care towards the petitioners. This case was a milestone ruling in judicial history because it empowered the petitioner to claim for not only physical harm but also financial harm. Although no limit was decided for the duty of care by this ruling many substantial remarks and observations were amended in the concept of duty of care.

As per the observations of Gleeson CJ, the case of economic damage is vague and lacks accuracy since the parameters are both direct and indirect and the calculations of the indirect parameters are very hard to conduct. Referring to the ruling promulgated under the case by Lord Bridge of Harwich [5], Gleeson opined that the concept of duty of care doesn't limit to a particular concept and parameter and thus the process of predicting risk is impossible to conduct in 3 steps. He opined that the harm that occurred to the petitioners close to the area of impairment comes under the instance of reasonable foreseeability. Thus the damage that happened to the vulnerable class of the population is liable to receive the duty of care from the defenders.

While renowned scholar Gordon J has given an account regarding the relationship between the defender and the petitioner. According to him, both parties were linked if the parameter of ownership, processing and cultivation of potato is considered. This relationship had also harmed other people since their land was near the proximity of the affected land. He had analyzed that the liability or responsibility of the damage happened to the defender by various elements. The elements which should be taken into consideration while assessing the liability are a relation among the two parties, the foreseeability, and the issues related to the duty of care. Gordon has also stated that the vicinity in the present case had only recognized the probability and range of the damage caused to the petitioners.

As per the Perre v apand, it was being observed that the defenders had already the knowledge of the class peoples may face the risk of economic and physical loss if there is an infection in the radius of 20 km. Because of this, the defenders had to owe a duty of care to the petitioners. In this condition, the defender had total control over the conditions of the petitioners and possessed the potential to harm them.

The circumstance of the vicinity or proximity was ruled out in this case as it was believed that if an economic loss occurs, by virtue, a third party reaps gain from it and hence automatically the financial gain gets transferred to someone else. It was the need of the defender that the petitioner had some sort of gain from this incident and thus the liability should be transferred to the party who had gained profit. Judiciary had ruled out the proximity, observing that the proximity is a classification of unknown reference par excellence.

Conclusion
The judicial severely criticized the proposed 4 tests since they have many errors and glitches. The proximity concept described in the Caparo test [5] fails to work in economic harm. Good and justified parameters for analyzing the economic harm is very hard to devise out. In the early cases [6], the parameter of knowledge was considered to be significant which is not in the case of contemporary ideas of duty of care. Since it is false to say that liability doesn't entail on others if the breach pf any right hadn't taken place, the test for Precise legal rights was avoided.

In the jurisdiction governing the Perre v apand rulling, the notion of the pure economic damage was sanctioned, as it withheld the law of Australia related to the duty of care and the liability of economic harm. In the case [3], the Supreme court followed the same principles followed in the ruling of the Perre v apand case allowing the compensation for the economic damage done. Perre v Apand case assignments are being prepared by our law assignment help experts from top universities which let us to provide you a reliable best assignment help service.

References
[1] Donoghue v Stevenson [1932] UKHL 100, 1932.

[2] Hill v Van Erp (1997) 188 CLR 159, 1997.

[3] Fortuna Seafoods Pty Ltd v The Ship "Eternal Wind" [2005] QSC 4, 2005.

[4] Christopher v MV "Fiji Gas" (1993) Aust Torts Rep 81-202, 1993.

[5] Caparo Industries PLC v Dickman [1990] UKHL 2, 1990.

[6] Anns v Merton London Borough Council [1977] UKHL 4, 1997.