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McMullin v ICI Australia

McMullin v ICI Australia

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Case Copied 24 June 1997 235 min read

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BRIAN McMULLIN and LEONE MARGARET McMULLIN v ICI AUSTRALIA OPERATIONS PTY LTD, ICI AUSTRALIA LIMITED, CROP CARE AUSTRALIA PTY LIMITED, THE STATE OF NEW
SOUTH WALES, THE STATE OF QUEENSLAND, AUSCOTT LIMITED, GURLEY STATION PTY LIMITED, LEYDE PTY LIMITED, NEIL STEWART SOWERBY, DUNAVANT GINNING PTY LIMITED,
QUEENSLAND COTTON CORPORATION LIMITED, COLLY FARMS LIMITED, DARLING RIVER COTTON PTY LIMITED, NORTH-WEST GINNING PTY LIMITED, NAMOI COTTON CO-OPERATIVE
LIMITED, DEAN PHILLIPS, INC, TWYNAM COTTON PTY LIMITED, LIMETOWN PTY LIMITED, TARIGI PTY LIMITED and KOTAKI PTY LIMITED
No. NG305 of 1995
FED No.
541/97
Number of pages - 97 Trade practices - Public authorities - Fair trading
Negligence

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

WILCOX J

Negligence - Product liability - Liability of manufacturer of agricultural pesticide for use on cotton - Pesticide bio-accumulative and persistent - Contamination of cattle caused by ingestion of the chemical from over-spray, spray-drift and consumption of cotton gin trash - Foreseeability - Manufacturer's knowledge of the chemical's characteristics and industry practice concerning feeding of cotton gin trash - Duty of Care - Proximity - Position of various classes of claimants: owners of cattle at time of contamination, owners at time of discovery of contamination, persons holding cattle, persons suffering losses of sales, reduced prices etc.

Trade practices - Misleading and deceptive conduct - Manufacturer's failure to warn or notify withholding period - Need for causal connection with losses.

Public authorities - Negligence - Approval of registration of products - Failure of regulatory authorities to ascertain relevant facts and perceive deficiencies in manufacturer's registration application - Duty of care - Nature of decision - Whether within "policy" or "operational" sphere - Advice by government officers concerning feeding of cotton trash - Claim of vicarious liability against employer governments - Necessity for personal fault of employees.

Fair trading - Application of legislation to State government - Whether relevant conduct occurred in the course of government carrying on a business.

PLACE, 24-27 March, 2-4, 14-18, 21-24 and 28-30 April 1997 (hearing), 24 June 1997(decision)

#DATE 24:6:1997

#ADD 25:6:1997

APPEARANCES

Counsel for the Applicants J E Rowe

Solicitors for the Applicants Peter Long & Co

Counsel for First, Second and

Third Respondents E W Gillard QC and G McArthur

Solicitors for First, Second and

Third Respondents Phillips Fox

Counsel for Sixth Respondent P R Garling SC, M Windsor and S Woods

Solicitors for Sixth Respondent Lynn Boyd

Counsel for Seventh Respondent A Sullivan QC and P Freeburn

Solicitors for Seventh Respondent Crown Law (Queensland)

Counsel for First Cross-Respondent D R Pritchard

Solicitors for First Cross-Respondent Clive Curwood & Partners

Solicitors for Second, Third, Fourth

and Twelfth Cross-Respondent Henry Davis York

Counsel for Fifth, Ninth and Tenth

Cross-Respondent L Babb

Solicitors for Fifth, Ninth, Tenth

Cross-Respondents Windeyer Dibbs

Counsel for Seventh Cross-Respondent N Hutley SC, C E Moore

Solicitors for Seventh Cross-Respondent Clayton Utz

Counsel for Sixth Cross-Respondent D J Fagan

Solicitors for Sixth Cross-Respondent Cole & Butler

Counsel for Fourteenth Cross-Respondent H Shore and Skettle

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 541
Decision Date: 24 JUNE 1997

CaseChat Overview and Summary

The applicants in McMullin v ICI Australia, a case concerning cattle contamination by the insecticide Helix, have succeeded in part against the first three respondents (ICI Australia Operations, ICI Australia Limited and Crop Care Australia). The Court found that the applicants and certain group members suffered losses as a result of the manufacture and distribution of Helix, an insecticide containing chlorfluazuron (CFZ), a chemical with bio-accumulative and persistent properties. The Court held that ICI was under a duty of care to claimants whose cattle became contaminated by CFZ during their period of ownership, those who purchased contaminated cattle, meat processors and exporters who owned contaminated meat, and feed lot owners who found cattle in their possession contaminated. The Court found ICI breached its duty of care by marketing Helix without undertaking necessary research and testing, and without taking precautions to prevent contamination. The case continues against ICI in respect of these claims. However, the proceeding against the States of New South Wales and Queensland is dismissed, as is the Fair Trading Act claim against New South Wales. The Court found that the decisions concerning the clearance and registration of Helix were policy decisions, and that New South Wales and Queensland were not vicariously liable for the negligence of their officers who recommended feeding cotton gin trash to cattle. The Court also held that New South Wales was not conducting a business when it made representations to graziers concerning the suitability of cotton gin trash as a stock feed. The proceeding against the Commonwealth and the National Registration Authority for Agriculture and Veterinary Chemicals was dismissed earlier on the basis of immunity provisions in federal legislation. The case will continue against the remaining cross-respondents, with a further directions hearing set for 29 July 1997.

Orders