Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Torts – Standard of Care – Reasonable Foreseeability

Facts: In November 1996, heavy rains around Wallis Lake, caused human faecal matters to be washed into the lake. As a result, oysters growing in the lake, contaminated the oysters with Hepatitis A virus (‘HAV’). Mr Ryan, as well other 440 plaintiffs, contracted Hepatitis A virus as a result of eating oysters from a contaminated lake. By February 1997, a HAV epidemic had been notified and an action was bought by consumers against Graham Barclay Oysters.

Issue: whether the producers, distributors, council and the State should be liable to the plaintiffs who suffered an injury as a result of consuming contaminated oysters?

Held: At trial, the risk was held reasonably foreseeable and the risk was not far-fetched or fanciful. The Court applied the negligence calculus and the important factors found by the Court were: firstly, there was no test for Hepatitis A virus in the water, and secondly, the septic tanks were heavy weighted tanks and those tanks could have had contaminated water.

Hepatitis A is a serious and deadly virus and such an epidemic had not occurred before, hence, the type of risk occurring is quite rare in a turn of events. The High Court held that Graham Barclay Oysters had not breached their duty of care to consumers, even though the risk was foreseeable, as they met the common law test of ‘not far-fetched or fanciful’ and the practical alternatives were not open to Graham Barclay Oysters – such as, cease harvesting and selling oysters after a 1996 rainfall until a sanitary survey was conducted, as it was beyond their control, however, Graham Barclay Oysters knew contamination is possible and their response to the risk was reasonable and did not take such an action into consideration.