The Privy Council affirmed decisions in both the High Court and the Court of Appeal and found the Papakura District Council (the Council) and Watercare Services Limited (Watercare) not liable for damage caused to cherry tomato plants grown hydroponically on the Hamiltons' property (Hamilton v Papakura District Council).

The damage may have been caused by the presence of triclopyr (an hormonal herbicide) in water supplied by Watercare and distributed by the Council. However, the water complied with the 1995 New Zealand Drinking Water Standards in relation to the amount of triclopyr allowed in the water. Also, the Ministry of Health, which monitors community drinking water supplies, had graded the relevant water treatment station as an 'A' (completely satisfactory, very low level of risk).

A claim by the Hamiltons under the Sale of Goods Act 1908 failed because they had not brought to the Council's attention any special requirements for water quality and were found not to have been relying on the Council's skill and judgement in supplying water of the quality they required.

Claims in negligence and nuisance also failed: Firstly, because the Council and Watercare did not have a duty to provide guarantees against all harm in all circumstances; and secondly, because it was not reasonably foreseeable to Watercare and even less to the Council that water containing herbicides at a fraction of the concentration allowable for human consumption would cause damage to cherry tomatoes grown hydroponically.

The lesson for the organisation supplying water is that provided the water meets all standards for human consumption, and provided that the buyer of the water has not brought to the attention of that organisation any particular requirements, that organisation may avoid liability for any unforeseen damage caused.

This is a general summary only and should not be taken as a substitute for specific advice.

For further information contact James Hassall, solicitor:
james.hassall@phillipsfox.com

Web site: Phillips Fox