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.”

A plaintiff in Ireland claiming general damages for a deficient holiday is more likely to be successful than a similar plaintiff in the UK. However, the plaintiff in ARTIS v MFI Ltd. [2006] CC (Huddersfield) would not have been anymore successful if he/she had sued in Ireland.

The plaintiff had purchased a flat-pack wardrobe. The wardrobe and its measurements were advertised on the defendant’s website. On purchase and assembly it was discovered the unit did not fit in with the purchaser’s current units. The defendant refunded the cost of the wardrobe but refused to compensate the plaintiff for the time and effort expended on the disappointing wardrobe.

The court agreed and declined to order compensation for the plaintiff under that head. The plaintiff did receive a sum as compensation for loss of earnings referable to the time spent assembling the wardrobe.

(Apologies to students of John Steinbeck for the title to the post)

It is far from obvious what money is.

That the price of gold has risen to an all-time high is evidence of this.

Of what real value is a piece of gold? It has some industrial use, but not much.
It endures over time, but basalt does likewise and, indeed, in the context of a human lifetime the endurance of gold is nothing outstanding; it shares that property with too many other substances. Why should it increase in value relative to any or all national currencies, as it has done?

It is in fact a reference point; the currencies have fallen in value relative to it.

Probably money is an economic notion more than a legal one. That notion is subject to change; consider e-money.
E-money can be encountered in a chip card which has been “loaded�? with “value�? and which can be used to discharge an obligation, limited to the value in the card. The possession of the card is sufficient to get the value of it. Significantly, the State need not, and usually does not, have any involvement in such e-money.

One theory of money, “fiat money�?, bases it on the State control of the monetary system and the issuing of notes and coinage. “Nominalism�? is an essential element of the State theory of money. Nominalism was recognized by Aristotle in the Nichomachean Ethics;

… money has been introduced by convention as a kind of substitute for a need or demand … its value is derived not from nature but from law, and can be altered or abolished at will�?.

It is a principle of Irish (and UK) law that the purpose of the award of compensation by the courts is to, insofar as money can, place the injured party in the same position as if he/she had not been injured.

The State theory of money is, potentially, at odds with that principle because nominalism disregards everything save the attributed value to the currency or State “unit of account�?. Nominalism disregards the changing value of the currency. It takes no account of inflation or depreciation.

The compensation principle is an expression of another principle; the need to do justice. The acceptance of Nominalism is, when it comes to compensation for injury, a breach of the requirement to do justice.

Unadjusted money value may in a period of inflation greatly benefit a wrongdoer. The wrongdoer may deprive a victim of value but, due to the effects of inflation, ultimately be obliged only to make restitution of something of lesser value than the benefit he/she gained.

The Book of Quantum of the Personal Injuries Assessment Board has a similar effect.
It sets out “values�? for some types of personal injury and in doing so clearly accepts the State theory of money and inherently accepts the principle of nominalism. In truth, the “values�? in the Book of Quantum are not fixed values; they change to a greater or lesser degree and the underlying trend historically is to have them depreciate in value, relative to everything other than the attributed value of the currency.

The UK courts have avoided the problem by affirming that the “value�? at the date of judgment is the appropriate value to determine proper compensation – Ascot Midland Baptist (Trust) Association v Bermingham Corporation (1970) AC 874. This approach involves taking account the value of the money; it takes account of the effect of inflation. A Book of Quantum does not.

It is worth noting that the UK Law Commission rejected the idea of the establishment of a “Compensation Advisory Board�? i.e. a UK PIAB.