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' CIGUATERA POISONING: CURRENT ISSUES IN LAW JOHNPAYNE Payne,J. 199408 1:Ciguaterapoisoning:currentissuesinJaw Mtvno/twoftheQueensland Museum34(3):595-599. Brisbane. ISSN0079-8835. The current situation with regard to liability under Queensland law relevant to ciguatera poisoningisreviewed.Itisarguedthatallsectorsofthefishingindustryshouldbeacquainted withtheirresponsibilitiesundercommonlawandundertheStAttttCSof Workplace Health & Safety Act,Trade Practices Act, and Salt-ofGoodsActto prevent litigationin theevent erf an incident. John Payne, Peter Channel&Associates, G.P.O. Box 3J!~f, • Qt#*nslatid4001; 22 November, 1993, Areas ofQueensland law relevant tociguatera Iam directing my mind lo the acts oromissions poisoning are (i) Liability pursuant to Common which are calledin question * Law and (ii) Statutes (Workplace Health & In applying this principle to ciguatera poi Safety Act, Trade Practices Act, Sale of Goods ing, the first element to consider is the que Act)." ot proximityortowhom isthe duty owed. Bi on the 'neighbour' principle of Lord Atkin. it LIABILITYATCOMMON LAW would be any person whom the provider ol oughtreasonably haveincontemplationas likely Liability at common law can be based on to be affected. This would include the eventual breach of contract. Tort or Statute. Breach of consumer, whetherornotthatperson be the put- Statute will be dealt with below. Breach ofcon- chaser of the fish. The relationship vis-a-vis the tract, usually in the form of breaching implied consumer would be: commercial catcher, mark- dutiesofcare, givesrise, totheextentthatprivity eter, vendor (fresh), and provider (prepared). ofcontractallows, tosimilarduties to thatwhich Each of these (individual or corporate) would arisein tortliability.Tort,orcivilwrong, isbased owe a duty ofcare tothe consumerofthe fish. onaconceptofadutyofcare. Foran action tolie The duty is to protect from foreseeable risk of in tort, three elements are required to be proven: harm. To determine whetheror not thatduly has I) damage, 2) a relationshipofproximity, and 3) been breached, considen(i) whether there was y want of reasonable care, in circumstances of foreseeable risk of injury; (it) whether the foreseeablerisk. foreseeableriskgaverisetotheinjury-causation; The starting point is the case of Donaglme v. (rii) whether the foreseeable risk could be Sfevens\ which involvedpurchase by Donaghue prevented; and (iv) whether the foreseeable risk ofabottleofgingerbeer,incircumstanceswhere, should, in all the circumstances, be reasonably duetothebottlebeingopaque, thecontentsofthe prevented- bottle could not be seen. The bottle in fact con- The standard by which the test of breach is tained the remains ofa decomposed snail which measured is that of the reasonably prudent per- fact was not ascertained by Ms Donaghue until son2 which in respectofciguatera would be 'the , aftershehadconsumedthecontents ofthebottle. reasonably prudent commercial catcher She was not the original purchaserofthe bottle, marketer, vendor orprovider'. which had been bought by a friend and arguably Whether a risk o{ injury is, or is not, foresee- nocontractualrelationshipexistedasbetweenher able, depends on the circumstances of an wci- andthemaker* Intheleadinadecision Lord Atkin dent In the Wagon Mound No. 23, it was held held '....a person must be regarded as negligent ifhe 'youmusttakereasonablecaretoavoidactsor does not lake steps to eliminate a risk which he omissions which yon can reasonably foresee knowsand ought to km>w isa realrisk andnota wouldbe likely to injure your neighbour - who, merepossibility which wouldneverinfluencethe then, in law ismy neighbour. The answerseems mindof a reasonable man. to be - persons who are so closely and directly In respect ofcausation, it must be the foresee- affected by my act that t ought reasonably ho\r ablerisk whichgives nsc to the injury. Miis Jot's them in contemplation as being so affected when not mean that the 'precise' injury must be MRMOIRSOFTHEQUEENSLAND MUSEUM foreseen but ratherthegeneral natureorcategory ease would, ofcourse, be dependent on the state ofthe injury, i.e. strain,break, poisoning^ of knowledge. However, it should be remem- ThecaseofMcLean v. Tedmatr deals withthe bered that it is not the individual's state of issueofprevention.Thai casedealt with the sys- knowledgethatisrelevant, but ratherthestaleof tem ofwork adopted by garbage collectors and knowledge of the reasonably prudent provider provided thai once the collector had raised an etc. It is arguable that a seafood provider in alternative system of work (which could have Queensland should be aware of ihe existence of beenadopted and so avoided risk of injury). that ciguaterapoisoning and its likely causation. This it was up to the employer to establish that such Is especially so given the regularpress coverage system would not work in the circumstances of given to the subject and the existence of ap- the case. propriateDepartmental information. Finally, the Court will need iodecide whether At the otherend ofthe scale, it is probably not or not, in all the circumstances o( a mutter and arguable that liability wouldaccrue toaprovider where the three elements' of farseeabilit>. causa- whet sold barramundi which in turn lead 10 tion and prevention have been made out, symptoms of ciguatera poisoning. This is par- whetherornotthere has been afailuretoprovide ticular!)1 so,notingthe lowincidenceofciguatera reasonable care. Jn reaching its conclusion the poisoning linked to the species where only one Court will, inter alia, consider matters such as: case isascribedduring the period 1965-19847. seriousness ofthe nsk, i.e. its potential to harm; Somewhere between these extremes will, of effect on the person upon whom the duty i> cast, course,hethegreyareaofconcerntotheiiultisiry i.e. whetherornot it will unwarranted))' impede Forcxample.thesellingofnarrowbarredSpanish the process ofindustry, and cost ofimplementa- mackerel which has been linked with 226 ci tionoreffectofimplementationoralternatives'^ in Queensland between 1965-19848. This Further, in reaching its decision and consider- moreconcern whenGillespie. Lewis el al (1986) ing the elements of breach, the Court will have statements are considered: fca large number of rd to practical matters such as: prior com- cases of ciguatera are not reported to health plaint, state of general knowledge and/or uuilu>nitc< sothe true incidence ofciguuii specialised knowledge on the issue of nsk, what difficult to assess and 'Whether these figures stepshavebeentakentoinvestigateandeliminate reflect a trend towards an increasing incidente risk,whetherriskofasimilarnatureormagnitude ofciguateraOrincreasedpublicawareness \ has been removed or otherwise dealt with, known, butit iscertain that the abovemeniiotttfd whetherornot subsequent to injury analteration Reports represent only a proportion ofthe cut- bsbB heen made, and custom and practice within breaks thai fcpve occurred*. the industry. Therefore given what appearstohearelatively Fromthelayman'sperspectiveofciguatera,the high incidence of ciguatera cases/outbreak following elements are discernible: sreeies of sociated with narrow barred Spanish mackerel. fish, location of breeding ground, range ol given the potential of ciguatera poisoning to symptoms - from mild to serious, prohibition on cause health problems and given thai species/breeding ground, incubation period for species such a*. Red Bass which are known to •net ofsymptoms, scnsitisaiion toihecigua caiise risk in other Pacific countries (but which 1,increasedtoxicityinrespectofcertainparts have been involved in few reported cases local of the fish, size of fish, ueatment. inability to !y)M)are prohibited, then it is arguable that ifthe detect. consumption of commercially caught narrow These factors need W beconsidered in the Bght barred Spanish macV.ercl gave nse to ciguatera ofan individualexperiencetodetermine whether ning, that liability would accrue. This may or not liability will he incurred. For example, it a not be that clear as, for example, it may be the commercialcatcherofFishsold RedBass,caught c,isq that a professional fisherman could argue anywhere in Queensland, or narrow barred thai narrow barred Spanish mackerel were only Spanish mackerel, caughtoffPlatypus Bay, then of eoneem if caught, for example, off Fraser thereisnodoubthewouldbeliableinTortto any Island. Thisis a matter whichdepends on its own kmi who consumed the fish and became facts and will be clarified as research continues. symptomatic. Equally,itmay bethecasethatany There maywell beargumentsastowhyitisnot providerofprepared fish whopro- ided 3S part of leaMin.tble to remove narrow barred Spanish a seafood restaurant menu, barracuda livertaken mackerel from the catch in areas other than the only from large barracuda, would be liable. This • I concern, i.c Cairns/Town-svi!!e, Rock- CIGUATERA -CURRENTISSUES IN' 1 AW 597 HamptonandFraser,ortoremovecertain sizes ul ensure (he health and xafetr ai wort ofall the catch. Such arguments arc plausible, but it \s employers, employees, save whereitisnotprac- emphasised are dependent on the relevant facts ticablefor the employer to do so, commits an anIdnlseuvemlmoafryk,notwoleasdsgees.s whether or not liability offWeintcheatgheaidnesftitnhiitsioAnct.of'iAp.racticable in the Ad accruesinanygivencircumstance,itisnecessary being, practicable, means practicable hairing to:(i)showthatarelationshipofproximityexists. regardto:• rien)asosnhaobwletcahraet,tbhyerdeemoisnsatrfaatiilnugrethaotrthwearnetwaosf ma(ya)bteh,etnhaetpuarretoifcutlhaertaspectoefntthoer,emapsltoheymient aforeseeableriskofinjury,whichgaverisetothe concerned; and typeofdamagewhichwasforeseen,whichcould (b)the severityof anypotentialinjur?orharm reasonably have been prevented, and Q\\) the to health o? tvfefy thai WMy be Involved* drtd consideration ofwhether or not such breach has degreeoj existsin relationtosuchpoten- occurred will be dependent on the faces and cir- tjut ' . f harm; and cumstances ofthe poisoning and ihe events that (ct the state of knowledge about the injury or precede it. harm to health or safety that may be invohed. Hieauthorconsidersitinevitablethattherewill ahoul (he ridt afth&i injury orharm to health or be successful litigation in respect of ciguatera safety occurring andabout any ways ofprevent- poisoning. It issimply a matteroftime. ing, removing ormitigating that injury, hatin or risk; and WORKPLACEHEALTH & SAFETY ACT- Id) the availability and suitability of ways to DUTIES OFCARE prevent* remove or mitigate that injur) or .*. tohealth orsafetyorrisk; and The most important changes to Occupational (e) whetherthecostofpreventing, removingor Health& SafetyinAustralia,aretheintroduction mitigating tliatinjuryorharm to health orS\ of Robens-style legislation. Robens' legislation arthat risk isprohibitiveinthe circumsuvn is based on the self regulation of Occupational This duty reflects broadly the common law Health and Safety in workplaces as opposed to principle of the duty of care which has evolved regulation by way ofsanction imposed from out- throughpersonal injuriescase Jaw and Wmenun- side theworkplace. ciated by Lord Atkin in thecaseofDonaghue v. The Queensland Workplace Health and Safety Steven'' Act, which is the embodiment of the Robens Section 9 provides for the duty of care and model, was assentedto on 12th May, 1989, with imposes the relationship in respectofemployee Section 6, 36 and 57 commencing on IOth June. andemployees.TheAct,however,docsnotsole- 1989 and the remainingprovisions commencing ly relate to workplacehealth and safety, but ex- on 31st July, 1989". Regulations were enacted tends well beyond what is perceived to be the and commenced on 31st July. 1989, excepting employmentjelaiioivship.Thisi* theresult ofthe regulations dealing with divine, which com- ins ofthe Workplace Health& Safety Acllh menced on 30th October, 1989* This Act Ofpellicularrelevancetothecommercial fish- amended, or repealed the Construction Safety in£ industry in Section 10 of the Workplace Act, the Inspection ofMachinery Act, the Health Health cV Safety Act; '(/;Anemployerwhofait ActandtheShopsandFactoriesAct. Itisnowthe toconducthisorherundertaking in such aman- Act dealing with Occupational Health & Safety ner as to ensure that his or her own health and forthe great majority ofQueensland workers. safetyandthe healthandsafetyofpersonsnotin Since enactment there have been substantial the employer's employment andmembers ofthe amendmentsto boththeActandtheRegulations. public who may be affected are not exposed to The most significant amendment being the in- risks arising from the conduct ofthe employer's clusionoftheruralindustrywithintheparameters undertaking, exceptwhere itisnotpracticablefor ofthe Actbyamendment in 1990. theemployertodoso,commitsanoffenceag Centra] to the Robens' model are: duties of tins Act." ( :ire, internal workplace assessment, and broad It is clear that this would include commercial basedprescriptivealternatives,i.e. codesoi i etcher, marketers, vendors (fresh), and the 11;:c13 provider( prepared). The duty ofcare is expressed as a legislative The definition ofpracticability applies to Sec formula in the Act: 'an employer who fails to (ton 10 and the terms ofthe definition should be 598 MEMOIRSOFTHbQUEENSLANDMUSEUM considered Basically, practicabilityprovides for andshouldconsider itspositionvis-a-viswhether asimilartest asisused forbreachofdutyofcare ornotitis practicablefortherisk toberemoved. under tori. The principal difference is that there isnorequirementfarcausation.Thatis,noinjury TRADEPRACTICES ACT& needs to occur for there to be a breach of the SALEOFGOODS ACT WorkplaceHealth&, Safety Act.Thatmeansthat jf a risk exists which could be reasonably When a consumer purchases an item from a iemnvedandoughttobereasonablyremovedand retailerthere isanoral contractand into thisoral is not soremoved, then anoffenceoccurs. contract certain terms are implied by law. These Matteis discussed above in respect of the impliedterms axe measuredin lawtobalancethe breachofdulyofcareundertori.i.e. forseeahility, relationship between retailer and consumer to prevendibilityandreasonablenessareequallyap- protect the consumer from the 'caveat emptor' plicabletoaconsiderationofpracticability There • i.e. buyerbeware)principle. archowever, inthe writer's view,someessential The implied terms of the contract are cither differences between the duty owed pursuant to conditionsorwarranties. Basically,aconditionis tonandthedutyundertheWorkplaceHealth and j vital or fundamental termwhereas awarrantyis Safety Act. These duties arise from the fact that acollateral orsubsidiary term. the Workplace Health and Safety Act is a quasi Where there is a breach of a condition the criminal aet]\ which mean* it* provisions must consumer can return the goods, get a refund and rv Mnctlv construed 10 the benefit of the in- sue for compensation for any loss suffered as a dividual against whom the sanction is imposed. consequence of the breach. Where there is a This isof particularrelevanceto ibe lastelement breach of warranty on the. other hand the con- of practicability which, us noted above, is: *(t) sumercannot return the goods and get a refund, tfker the cost of preventing removing or but the consumer can sue for compensation for mitigating thaiinjury orharm :o healthorsafety any losssufferedas aconsequenceofthe breach. m ofthat risk isprohibitive thecircumstances. Therefore, ifa retailer breaches a condition or This on a strict construction should be con- a warranty, he/sheis exposing himselfYherselfto sidered in the light of the abilities of the in- an action by the consumer forcompensation for dividual commercial catcher, marketer, vendor any loss suffered asaconsequenceofthebreach. and provider to meet that cost. In other words, Certain conditions and warranties are implied rather than an application of the test of the by theCommonwealth'sTradePracticesActand reasonable person, the individualshouldbecon- theStates' SaleofGoodsAct Mostsignificant in sidered. the current context is the implied condition that Nonetheless,giventheindustr/s l&OWledgeof thegood*beofmerchantablequality. ciguatera poisoning and potential riskofharm to UnderSection66(2)oftheTradePracticesAct. members of the public the Act may well have goods are ofmerchantable quality ..Jftheyare been breached. fitforthepurposeorpurposesforwhichgoodsof Breach ofthe Workplace Health& Safety All thatkiwiarecommonlyboughtasitis reasonable will aiso support an action at common law for to expect, having regard to any description ap- damages. Further,diepenaltiesrange fromafine plied to them, the price (ifrelevant) in all other of$3,000or6monthsimprisonment foraperson circumstances/ A similar definition is provided (other than a body corporate) where the Act Is b> si7(2) oftheQueensland SaleofGoods Act. contravened to a fine of $30,000 or 6 months Basically, to be of merchantable quality the imprisonment where a death or serious hodily goods must:-(a) pass without objection in the injuryoccurs(againthis isforapersonotherthan trade and description given to them in the con- a body corporate). Offences forbodies corporate tract, and range from $12000 to $120.000lK By Section (b) be of fair and average quality within tiic T 124 of the Act, a person who is a managing description, and directororothergoverning officerorwhoatany (c) be fit for the usual purpose for which such lime acts or takes part in the management, ad- goods are used, and ministration or government of the business in (d) one with variations allowed by the agree- Queensland ofa body corporate can be liable to mentofevenkind,qualityorquantitywithineach punishmentby imprisonment. unit and among all units, and In my view the industry must comply with (c) be adequately contained, packaged and provisionsoftheWorkplaceHealth&Safety Act labelled, and CIGUATERA -CURRENTISSUES TNLAW 599 (f) conform to the promises or affirmations of LITERATURECITED fact madeon the label orcontainer. The implied condition or merchantablequality 1.(1932] AppealCase562 does not apply where the defects are brought to I.Glasgow Corporation v. Muir [1943] I AC the consumer's attention prior to sale or where 447. reasonableexaminationoftheproductoccursand 3.[1967]AC617. the defects ought to have been revealed by this 4.See generally Hamilton v. Nuroof(\9S6) 56 examination. This situation is ofcourse unlikely Commonwealth Law Reports 18. tooccurin relation tociguatera affected fish. 5.11984] I55CLR306. Itcouldbearguedthatwhereciguateraaffected 6.Seegenerally GeneralCleaning Contractors fish is sold itmay notbeofmerchantablequality v. Christmas [1953] AC 180,Readv.J. Lyons & as it would not be of fair and average quality Co Limited[1947] AC 156. within thedescription andwould notbe fitforits 7.Table 3, Ciguatera in Australia, Vol. 145 usualpurpose,i.e.humanconsumption. Aperson Medical Journal ofAustralia, December, 1986, would then arguably sue for the damage thathas p. 584, Gillespie, Lewiset al. been suffered. Vtbid. Where the goods are not of merchantable 9.ibidy p. 586. quality, the retailer maybeexposing him/herself \0.ibid. p. 587. tloosas ssuuiftfebryedthaescaoncsonusmeeqruefonrcecoomfpesnuscahtibroenacfho.r 112l..RSesg1ul&at2iocnosm1m&en2cceodmomnenthceeddaoyno2f9AtshsJeunlty., These rights ofredress are ofcourse only avail- 1989. able tothe purchasers ofthe affected fish. 13.See Section 34 ofthe Workplace Health & Safety Act. CONCLUSION 14.See Section 9 of the Workplace Health & Safely Act. & Itisarguablethatactioncould betakenagainst 15.Sec Section 6 of the Workplace Health industrymembersinrelationtociguaterapoison- Safety Act. ing,eitherbysuitundercommonlaw,byprosecu- 16.The Queensland Workplace Health and & tion under the Workplace Health Safety Act, SafetyAct,M.Quinlan,T.Farr,J.Payne,Journal or action pursuant to the Trade Practices or Sale ofOccupationalHealth&Safety-Australia,New of Goods Act. I suggest the industry should be Zealand, 1989, 5(3). p. 265 - 274. pro-active and consider what steps can be taken 17.See Section 118, 119 and 124. & to addresspotential liability. 18.See Section 1 18 119 and fordefinition of serious bodily injury see Section 6.