Contaminated Irish Pork: who pays?

Ireland’s pork and ham industry has been struck a stunning blow. Consumers have been told, by the Government, to avoid eating its products.

The same Government has informed the media that dioxins in food are not dangerous in small doses. The FSAI website says of dioxins:

Dioxins and PCBs are toxic chemicals that can provoke serious health effects such as cancer, hormone disruption, reduced ability to reproduce, skin toxicity and immune system disorders. Because of their serious health effects and their persistence in the environment, it is essential to minimize their release into the environment, including the establishment of emission limits for dioxins
to air, prohibition of the use of PCBs, and safe collection, storage and environmentally compatible disposal or destruction of dioxin and PCB-contaminated devices and products.”

The Government has also declined to say where, in Ireland, the problem had its source, but the media have identified one pig feed factory in Carlow as the source.

Previously, when contamination of bottled water was detected in Irish consumer supplies, the Food Safety Authority of Ireland refused to disclose the identity of the “manufacturers” that had been selling the contaminated water.

Liability arises for this mess under, possibly, six heads.

A. Each purchaser in a supply chain has a claim for breach of contract against the supplier. Thus, the shops and retailers generally in Ireland are obliged to make good the loss to the consumer by the breach of contract. That loss, currently is measured by the cost of the defective product. (The burden of proving the product is defective lies on the purchaser, but that is an issue unlikely to represent a problem). The pig farmer or farmers, in their turn, are liable to reimburse the retailers for the losses sustained by the retailers. Those losses will exceed the cost of the product sourced from the farmer. They will arise from the costs of removing the product from shelves and perhaps disposing of it. Undoubtedly the retailers will have to ensure they are in a position to establish that the product is defective; the farmer is unlikely to concede anything on that front. The jurisdiction for the proceedings will be Ireland.

B. It appears, from current reports that the source of the contamination was one pig feed factory or supplier of pig feed. The purchasing farmers will be entitled to an indemnity for their losses from that source. Those losses could be very substantial; they would include the claims of the retailers, but would extend to the continuing loss of business arising from cancelled supply contracts. The jurisdiction for the proceedings will be Ireland.

C. Each consumer who suffers ill health, physical or mental, will have a claim against the retailer under the law of product liability. These claims do not rest on an allegation of negligence; they are claims addressing a strict liability. However, here again, the consumer will have to prove the defect; it will not be assumed. The jurisdiction for the proceedings will be Ireland.

D. The pig feed supplier possibly purchased a contaminated oil to mix the feed. The supplier of that oil is liable to the pig feed supplier, assuming its intended use was disclosed. The pig feed supplier will be entitled to recover, and will recover, all its losses, assuming the solvency of the oil supplier. The jurisdiction for the proceedings will be the place where the oil supplier is located.

E. Consumers could, conceivably, make a claim against the Food Safety Authority of Ireland. The claim would be difficult to assert. See Glencar Explorations Ltd. v Mayo Council [2001] IESC. Fennelly J.stated in that case:

Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person and group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it.”

F. The Authority, it would appear, was slow in ensuring the withdrawal of contaminated product from the retail supply chain. It acted before 6th December 2008, the date it received a report confirming contamination, suggesting it already knew what the problem was and/or its seriousness (probably from an Italian source). This is all of a piece with its refusal to name the suppliers of contaminated water and, now, to name the source of the contaminated pig feed. Its mission, it appears, is not the protection of people, but industry. In fact the State has a primary duty to the citizens of Ireland on such issues under the Constitution of Ireland, and not to Ireland plc, as the Government puts it. Article 40 (3) of the Constitution states:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”