Date: Mon, 6 Nov 2006 09:55:29 +1100

From: Neil Foster

Subject: Application of Cooper

Thanks for this reference, Jason. Not a surprising decision, it seems to me; what is surprising is that it succeeded in lower courts! (I guess they were just reluctant to strike out on the pleadings.) In Australia we have what is a fairly similar decision in a case that went all the way to the High Court, Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. There an action taken by someone who had contracted a disease (from eating contaminated oysters) succeeded under the "strict product liability" provisions of the Trade Practices Act against the supplier of the oysters, but failed in negligence against the supplier (duty but in the circumstances no breach), the local council who were in general control of the lake, and against the State government (no duty owed by government bodies).

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 5/11/06 8:37 >>>

Dear Colleagues:

Some of you might find the application of the Anns/Cooper duty formula in Eliopoulos v. Ontario interesting, as it deals with liability for West Nile Virus.

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