Kiwifruit Psa claim appeal rules in Govt’s favour

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The Government can not be held liable for the damage caused by Psa, despite letting the disease into the country, the Court of Appeal has found.

In 2018, a class action claim was brought by 212 kiwifruit orchardists, and Te Puke-based post-harvest operator Seeka, alleging the Crown was liable for losses caused by the devastating plant disease.

The High Court ruled the Crown was negligent and breached its duty of care in allowing Psa into the country and liable to Strathboss, representing the orchardists, in relation to the grant of the permit import.

However, the Crown was cleared of liability for failure to inspect the pollen, and of liability to Seeka.

​The Crown appealed the permit finding. Strathboss cross-appealed in relation to the failure to inspect, while Seeka cross-appealed in relation to the dismissal of its claim.

On Thursday, the Court of Appeal upheld the Crown's appeal and dismissed Seeka's cross-appeal.

"The Court of Appeal has allowed the Crown's appeal on the basis that the Crown has a statutory immunity precluding liability for the alleged negligent acts or omissions," its decision says.

From 2010 Psa3 swept through kiwifruit orchards in the Bay of Plenty region.

The disease could not be eradicated and it took several years for the industry to re-establish itself.

Psa3 was said to have been introduced to New Zealand by a consignment of kiwifruit pollen imported into New Zealand from China for the new use of commercial artificial pollination of kiwifruit orchards.

The Kiwifruit growers said they were "aggrieved" by the decision and would make an appeal to the Supreme Court.

"The Court of Appeal held that the Ministry for Primary Industries (MPI) was negligent in allowing a high-risk shipment of pollen anthers infected with Psa from China into New Zealand," Kiwifruit Claim chairman John Cameron says.

"But they found the Government does not owe a duty of care to ordinary New Zealanders and can't be held liable for its actions, simply because it's the Government."

The court had relied on an interpretation of the Crown Proceedings Act that effectively meant the Government couldn't be held to account for any wrongdoing, he says.

"We believe this interpretation is wrong. It is both logical and reasonable that the Government should be held responsible for its actions, and those of its employees, where it is clear that significant harm and losses have resulted from their negligence.

"While our legal team need to analyse this latest decision, this is far from over."


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