Bless You! And let me introduce you to my Lawyer

Equilaw solicitor and Thoroughbred stud owner, George Fraser, takes a look at the legal liability for the negligent spread of infectious disease in livestock.

It is just what every stud owner dreads. The mare and foal arrive on your property looking fine, but soon after the foal goes flat and listless, and then the dreaded cough sounds. Like a nail being driven into a coffin lid, and each cough brings a fresh pang of anguish. The stud owner instantly fears for every other foal on the property. Every foal that has gone home has to be monitored. Every foal on the stud has to be monitored, and the fervent prayer goes up that the cough does not spread. You don’t want to blame anyone, but you would love to wring the neck of the idiot that sent you a rattly foal.

With the advent of Equine Influenza in Australia, and the present concern surrounding the spread of Hendra virus in New South Wales and Queensland, and the normal round of rattles and strangles, we thought we might look at the troubling subject of the spread of infectious disease . It does not ever cross our minds that there can be a legal liability for the negligent spread of infectious disease.

While each jurisdiction in Australia has a version of the Stock Diseases Act that imposes reporting requirements on land owners or occupiers to report infectious disease on their property, there is also a common-law duty and liability that affects land owners and owners of livestock.

The Common Law Duty

If you send a horse that has an infectious disease to another property, and horses on that property get sick, you have breached your duty of care. But where did that duty of care come from? I didn’t order it, take it back! A duty of care arises where a person is so closely and directly affected by your act that you ought reasonably to have had them in your contemplation when doing the act.

Let us un-lawyer that sentence.

Simply put, if you throw a cricket ball into a crowd at the supermarket, you owe a duty of care to all the people in the crowd not to cause them injury. If you hit someone, you have breached your duty of care because you should have had the common sense to realise what you were doing could cause an injury.

Typhoid Mary…(or Marey?)

Let us take that a step closer to the horse industry.

If you have a mare going off to stud, and she shows signs of infectious disease, she is the cricket ball. The horses at the stud are the crowd at the supermarket. When you hit the poor old lady at the supermarket you became liable to compensate her for her injuries and expenses, in lawyerish, “loss and damage”.

The principle applies equally to sending ‘Typhoid Marey’ to the stud. If she then infects the other horses at the stud, and they are hurt or die from the disease, you ought to be liable to their owners for the loss. There is no settled law in Australia on the point of negligent spread of disease in animal populations, but there seems little reason why a court could not find that a duty of care exists. It will simply be a logical extension of the existing law of negligence. What will limit the extent of liability will be proof of the actual knowledge that the person sending the disease carrier had of the disease status of the horse.

I didn’t know she had the….(add euphemism)

We turn to the good old U.S. of A. for guidance here. Americans, being noted supporters of the lifestyles of lawyers, are the leaders when it comes to suing for transmission of infectious disease. Admittedly, what law there is on the subject refers to humans, or at least a version thereof, and revolves around ancient cases of smallpox, or modern cases of HIV or Genital Warts. In one particularly charming example a husband was sued by his wife for transmitting genital warts to her, and the Court said (no doubt through clenched teeth and watering eyes): “We can conceive of no principled reason to distinguish the consequence suffered here by Nancy’s [the wife], infection with a disease, from any other physical harm that could befall a person because of the negligence of another, and for which we would recognise a cause of action in negligence.”

The Court then went on to say that even though the wife had a claim, the husband was not negligent in inflicting the dread disease on her because he “did not know or have reason to know” he had the genital wart virus at the time he infected her.

Do I hear a crescendo of gnashing feminine teeth right now…? The point is, knowledge of the disease status is the key to whether there is a liability in negligence.

What about the E.I. affair?

Let us look back into the not so distant past of the Equine Influenza outbreak and apply what we have discovered so far. Remember at the time there was a group of Don Quixote types determined to sue someone, anyone, for the EI outbreak. The attention was all on the Quarantine Service, and they were the ones that were going to cop it, never mind that the Quarantine Act precludes civil actions being brought against the Service or the Minister.

I am approaching this in a very simplistic manner, which you will appreciate if you have read the Callinan Report. We know that a stallion brought the bug in from overseas. We know that the bug escaped, and spread like crazy in New South Wales and Southern Queensland, the commercial breeding industry largely shuddered to a halt for a period.

A thoroughbred stallion arrived from Japan who carried the infection, though was without symptoms on arrival. Some other stallions that travelled with him probably became carriers. About nine days later a stallion who came from Europe showed symptoms and the H3N8 Equine Influenza was diagnosed subsequently. Who is liable in this limited fact set? The horse from Japan brought the bug in. There were outbreaks of E.I. in Japan around the time or a little later, but this horse showed no symptoms. He showed no symptoms when he got to Australia. It was only after other horses became symptomatic that the bug was detected. So if we say that Japan Stallion was “the husband” and Europe Stallion was “Nancy” (she with the genital warts from America, above), we can draw the conclusion that the owner of Japan Stallion will not be liable in negligence for infecting the Eastern Seaboard of Australia, because he did not know the horse had a disease.

The true situation was far more complex, and there were many people who did not do what they were supposed to as far as quarantine was concerned, but that gives an example we can all be familiar with. Conclusion So we are able to draw the conclusion (arguable, I know) that if you send an obviously sick horse to stud, and it infects other horses, and their owners suffer loss because of it, you will probably be liable to those owners for their losses.

If you run a farm, and an obviously sick horse arrives and you do not quarantine it according to industry practice, you will probably be liable for losses to other owners. This is not a settled area of law. To my knowledge there is no authoritative case law on the subject. But, it could happen, so be aware. The inclusion of suitable communicable disease procedures in your farmWHS Manual is highly advisable. For those who do not have a farm  WHS Manual, it is highly advisable that you obtain one. Equilaw in conjunction with Safe Industries Australia can assist in this regard.