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Briefing on Australian Liability for Damage Caused by Genetically Modified Crops Duncan E.J. Currie, LL.B. (Hons.) LL.M. Globelaw International Environmental and Transnational Law March 2008 Executive Summary It is clear that there will be economic losses associated with the lifting of the New South Wales and Victorian moratoria on the commercial release of GM food crops.1 Contamination by genetically modified (GM) crops of nearby conventional (non-GM) or of organic crops is inevitable. Potential loss of markets and of non-GM status is an obvious risk. The question is: who will bear the cost of these losses? This briefing finds that in most cases the losses will lie where they fall: with non-GM farmers, local and public authorities, the public purse and the environment. This amounts to a substantial subsidy of the GM industry and is a breach of the polluter-pays and precautionary principles. Liability issues have implications throughout the entire food chain; not just for non-GM farmers whose crops are contaminated. Liability issues will also arise due to market loss and the need to prevent contamination - which includes costs for testing for GM organisms in crops, clean up, and remediation. Liability for inter-state contamination issues will also be an issue, as well as costs of checking and regulating inter-state commerce to avoid cross-state contamination. This state of affairs is contrary to two important underlying international principles crucial to apportioning liability: the polluter pays principle and the precautionary principle. These principles mean that GM distributors and GM farmers should bear the cost of prevention, cleanup, damages and lost markets due to GM contamination. However, as this briefing shows, it is the non-GM or conventional farmer, who may suffer loss of non-GM status or certification, resulting in lost markets or reduced value of produce if GM contamination occurs. There is also the possibility that these farmers will be required to pay royalties to GM seed companies due to the presence of adventitious GM organisms in harvest. In addition, substantial cost to local and state authorities for prevention and cleanup, such as testing, pulling out contaminated crops and compensating farmers may be borne by those authorities.2 Another problem is that non-GM farmers who may suffer contamination could inadvertently pass on that contamination to others. There may also be liability under the Gene Technology Act 2000 (Cth) and corresponding state legislation, under fair trade legislation for an unauthorised or inadvertent use of a GM organism, liability for breach of intellectual property rights and in contract. These issues need to be addressed. Recommendations 1. Strict liability legislation Non-GM growers should not be held liable for contamination events if their crops, harvest or land are contaminated and subsequently contaminate the crops or harvest of others. Legislation should be enacted to ensure that GM technology providers and GM farmers are held strictly liable for any contamination that occurs as a result of the sowing, growing, harvesting, transport and storage of GM crops. This will require addressing the issues of strict liability, defences, foreseeability, causation, the burden of proof, the statute of limitations and other issues discussed in this briefing. The Gene Technology Act should also be amended to ensure there is no liability for non-GM farmers, following examples in Austria and Norway. 2. A mandatory insurance policy or bond prior to commercial planting Briefing on Australian Liability for Damage Caused by Genetically Modified Organisms A mandatory insurance policy or bond should be required from technology providers prior to any commercial planting. The scale of the insurance coverage or the size of the bond will depend on the extent of proposed planting, and will increase or decrease as the areas under GM crop cultivation increase or decrease. This will ensure that any liabilities are actually met and cannot be avoided by under-capitalisation or other devices. 3. Non-GM farmers should put GM farmers on formal notice Non-GM farmers should write a letter putting GM farmers on formal notice that they may be liable for contamination. This will assist in preventing a remoteness or foreseeability defence from succeeding. 4. Government participation in the Biosafety Protocol negotiations The Australian Federal Government should participate constructively in the International Biosafety Protocol liability and redress negotiations. It should use this process to ensure that rules, procedures and a backup fund are put in place to address these issues consistently and effectively on an international scale. 1 Network of Concerned Farmers (2007) The Economic Impacts of Genetically Modified Canola, http://www.non-gm-farmers.com/documents/GM%20Canola%20report-full.pdf, viewed 25/3/08. 2 This has been a concern in New Zealand expressed by local councils about costs and liability incurred by local authorities as the result of their exercise of statutory responsibilities and the exercise of their duty of care. See letter by Mr David Benson-Pope, Minister for the Environment to Whangarei District Council, 30 March 2007, in response to letter to the Minister from the Inter-council Working Party on GMO Risk Evaluation and Management Options (comprising the Whangarei, Far North, Kaipara and Rodney District Councils, the Waitakere and Auckland City Councils, along with the Northland Regional Council, expressing concern that if a GMO release is in accord with an approval from the national regulator ERMA, and subsequent damage arises to either existing land users or to the environment, the costs will lie with the adversely affected parties, and in regard to the environment, with local councils. Page 2 of 10 Briefing on Australian Liability for Damage Caused by Genetically Modified Crops Duncan E.J. Currie, LL.B. (Hons.) LL.M. Globelaw International Environmental and Transnational Law TABLE OF CONTENTS Table of Contents .......................................................................................................................................................... 3 Introduction ................................................................................................................................................................... 3 Liability for Contamination ......................................................................................................................................... 4 The Precautionary Principle ............................................................................................................................................ 4 The Polluter Pays Principle ............................................................................................................................................. 4 Liability issues for non-GM farmers ........................................................................................................................... 5 Some likely difficulties with compensation .................................................................................................................... 6 International Negotiations on Liability for GM Crops .............................................................................................. 7 Recommendations ......................................................................................................................................................... 8 INTRODUCTION This briefing outlines some key issues as they relate to Australian states and liability for damage caused by Genetically Modified Organisms (GMOs). In particular, it addresses the liability issues resulting from the commercial release of GM canola. This raises liability implications throughout the entire food chain. These include prevention of GM contamination, including testing for GMOs in crops; environmental issues relating to clean up, remediation and compensation, and the need for a back up fund. Other downstream considerations are liability for inter-state contamination and the impact of GM contamination on both domestic and export markets. In 2003 the Federal Government approved the commercial growing of 2 varieties of GM canola. By 2004 all canola-growing states (NSW, Victoria, SA, WA and Tasmania) had implemented moratoria against the commercial growing of genetically engineered (GM) food crops (canola). Victoria has let its moratorium lapse and will allow the commercial growing of GM canola this year. New South Wales has extended its moratorium but will allow growing of GM crops as exemptions to its moratorium. Tasmania, South Australia and Western Australia remain GM-free and are now risk contamination from NSW and Victoria. GM canola will be the first GM food crop to be grown commercially in Australia. Of the 20 countries that grow canola, only 2 presently grow GM canola: the United States and Canada. Australia is at present the world‟s main exporter of GM-free canola.3 Contamination by GM crops of nearby non-GM or organic crops is inevitable.4 This is why over 90% of certified non-GM canola seed is contaminated with GM varieties.5 GM canola is one of the most difficult GM crops to segregate, since it is extremely prolific, persistent and commonly grows as a weed. GM canola has been found to cross-pollinate with non-GM canola more than 26 km away. Wind, rain and floods, bees, birds and other animals may all play a role in the spread of GM crops. Contamination may also occur during harvesting, storage, handling and transport operations.6 Potential loss of markets and GM-free status is an obvious risk. It is clear that there will be economic losses associated with the lifting of the New South Wales and Victorian moratoria on the commercial release of GM food crops.7. The question is: who will bear the cost of these losses? Briefing on Australian Liability for Damage Caused by Genetically Modified Crops This briefing finds that in most cases the losses will lie where they fall: with the non-GM farmers, local and public authorities, the public purse and the environment. This amounts to a substantial subsidy of the GM industry and is a breach of the polluter-pays and precautionary principles. LIABILITY FOR CONTAMINATION This state of affairs, where non-GM farmers and other innocent parties are responsible for liability of damages caused by GM contamination, is contrary to two important international principles crucial to apportioning liability: the polluter pays principle and the precautionary principle. The Precautionary Principle The precautionary principle is a cornerstone of the United Nations Convention on Biological Diversity, which the Australian Government has ratified.8 It is set out in Principle 15 of the Rio Declaration: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.9 The precautionary principle dictates that potential polluters should take necessary steps to prevent damage, and ensure prompt remedial measures, despite a lack of full scientific certainty. Australian Federal and State law as it stands, does the reverse: lack of scientific certainty can be cited by GM crop distributors and farmers as a defence to liability, to allow their activities to continue and for the loss to be borne by others. Substantial legislative reform is necessary to ensure that scientific uncertainty is not used by GM distributors and farmers as a justification for failing to take preventive action. Scientific uncertainty should not be used to argue that damage was not foreseeable, or was too remote to require preventive action from being taken. The Polluter Pays Principle Another cornerstone of the United Nations Convention on Biological Diversity is the polluter-pays principle. This holds that polluters should, in principle, bear the cost of pollution.10 This means that GM distributors and farmers should bear the cost of prevention, cleanup, damages and lost markets due to the contamination caused by GM crops. Clearly where GM farmers, distributors and others are able to avoid liability for contamination and other damage caused by their activities, the polluter-pays principle is not being implemented. As this briefing shows, in practice, the costs are likely to be left where they fall: with the non-GM or organic farmer, who may suffer loss of GM-free status or certification, with lost markets, for example where domestic, EU, or Japanese markets refuse GM produce. Non-GM farmers may even be required to pay royalties to GM seed companies due to the presence of adventitious GM material in their crops. This has already happened to hundreds of farmers in the US and Canada.11 The loss of organic status is another serious concern, where farmers may lose the considerable investment in establishing organic status and the premium inherent in organic crops.12 Yet for reasons shown in this paper, the farmers are most unlikely to be able to receive compensation. LIABILITY ISSUES FOR NON-GM FARMERS Genetic modification poses new and difficult problems for farmers and their lawyers13 alike. Under current common law, recovery of damages by farmers suffering damage or lost markets due to contamination will be very difficult indeed, likely giving rise to expensive and prolonged litigation. A 2006 Australian government paper14 which studied the legal liability of farmers growing crops concluded that “under the existing law of negligence and private nuisance, the chances of a Page 2 of 10 Briefing on Australian Liability for Damage Caused by Genetically Modified Crops successful action against a farmer growing a crop by a neighbour in most cases are small” 15 and that the farmer planting the crop has strong arguments to defeat claims brought in negligence and private nuisance, where a new crop has gone through an existing regulatory approval process. The regulatory approval of a GM crop16 is likely to influence the courts when assessing the reasonableness of the interference.17 This finding followed a 2003 Australian government paper18 which similarly found that in nuisance, a court is less likely to characterise an interference as unreasonable where all relevant license conditions and protocol requirements have been complied with. As noted earlier, scientific uncertainty may work to prevent affected farmers from claiming compensation, since GM farmers may claim that they are not able to know how and which farmers may be affected by any contamination.19 Two principal bases of a liability claim are negligence and nuisance. Both of these are problematic in the case of GM crops. To succeed in a claim in negligence, a plaintiff must show that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty of care, that the negligence caused the loss and that the loss suffered was not too remote. This is then a fault-based standard, as opposed to a strict liability system, which is focused on loss allocation rather than on fault. Whether the courts will recognise a duty of care in any particular case depends on the foreseeability of the harm and the proximity of the relationship between the parties.20 There are issues with both the foreseeability of different types of harm with a new technology and with proximity of non-GM farmers who may be some distance away. The claimant must also prove the defendant failed to exercise reasonable care.21 Damage from a cause which may be considered outside the reasonable knowledge or skill of a GM farmer may not be compensated: the courts will look at the common practice of an industry to determine whether a defendant was negligent.22 Another basis of claim is private nuisance, which requires an unreasonable interference with a persons‟ right to the use or enjoyment of an interest in land. If GM farmers have complied with consent conditions, a court may be less willing to consider a use of land unreasonable.23 Also, where there is an established threshold for the presence of GM contamination, susceptibility to a lower threshold may be problematic.24 Some likely difficulties with compensation There are many difficulties in gaining compensation for damage caused by GM crops. Difficulties include causation, remoteness of damages and foreseeability, burden of proof and liability. Then exemptions, including statutory authorisation, Act of God and intervention of third parties may be applicable. The fact that the release of GM canola has been approved by the Federal Government could prove a bar to recovery in nuisance and a serious obstacle to recovery in negligence. This in essence means that the rule will often have no application to really high risk activities. If a defendant has complied with regulatory controls, particularly if the kind of damage that eventuated was addressed in the consent by conditions, a defence of statutory authorisation may succeed. Where, on the other hand, the kind of damage was not addressed by the authorisation, it could be held to be unforeseeable, and thus unrecoverable. Specific difficulties include: Causation: A claimant such as a non-GM farmer must prove that the identified defendant caused the damage. Damage can be contributed to by different vectors - such as winds, flooding, or insects carrying pollen from one field to another. If there are a number of GM farmers nearby growing the same crop, the claimant may have difficulty establishing which to sue, or contributions may be apportioned. Burden of proof: The claimant must prove a case on the balance of probabilities. It will be necessary to engage experts to prove that the GM crop caused the damage. In addition, the supporting evidence may be in another country. While in theory there are procedural mechanisms to obtain such evidence, they are lengthy and expensive. In contrast to the precautionary principle, this means that scientific uncertainty works to protect the polluter. Page 3 of 10 Briefing on Australian Liability for Damage Caused by Genetically Modified Crops Remoteness of damages and foreseeability: GM crops may have unexpected adverse effects. A person is only liable for reasonably foreseeable damages. While contamination of nearby non-GM farms may be held to be foreseeable, damage to more remote farms or through more exotic means may not. Damage caused by unknown or little known risks, or risks currently believed to be very remote, may not be compensated. One practical consequence of this is that non-GM farmers and bee-keepers would be well advised to ensure that any nearby GM farmers are aware of their sensitivity and proximity in order to ensure that foreseeability is clear. Statute of Limitations: Claims may be barred by statutes of limitations.25 Normally the limitation period will run from the time the loss or damage actually occurs, but in the GM context this raises the issue of damage that is not discovered in time. Where the party suffering loss did not and could not have discovered the damage, the claimant may still not be able to recover. Defences: Any exemption shifts the risk to the victim - - leaving the damage where it falls. Furthermore, there is no or very limited ability to prevent or remedy environmental damage caused by a release. Defences such as act of God, force majeure, statutory authorisation, and intervention of third parties are commonly available. Although GM crops, by their very nature, involve genetic modification, evolution and other biological events subsequent to the original genetic modification may qualify as an Act of God. These are exactly the kinds of events that the liability and redress regime should address.26 Pure economic loss: An obvious result of GM contamination may be lost markets. But pure economic loss, such as lost profits or lost markets, as opposed to physical damage to property, is in general more difficult to recover than physical loss. A reduction in the value of property due to contamination or lost markets, pose real difficulties for non-GM farmers. Legal liability even for negligently inflicted economic loss is still in a state of legal uncertainty. Courts are careful not to impose what may be open-ended liability.27 Liability of non-GM farmers for contamination: One specific problem is that non-GM farmers may suffer crop contamination, and may inadvertently pass on that contamination to others. There may also be liability under the Gene Technology Act 2000 (Cth)28 and corresponding state legislation29 as well as fair trade legislation30 for an unauthorised or inadvertent use of a GM crop, and liability for breach of intellectual property rights31 or for a contractual claim.32 Defending such a claim would involve considerable legal costs. Difficulties in recovering compensation: Even if a non-GM farmer manages to win a judgment for damages, the non-GM farmer must still enforce the decision. A GM distributor or farmer is likely to enjoy limited liability, and may be insufficiently capitalised to meet a significant judgment. Where a defendant is overseas, enforcement of a decision involves very lengthy and expensive procedures that are unlikely to be effective. One solution for this would be for a bond or insurance policy to be required by GM farmers or distributors before release into the environment. Another is for an international fund to be put in place. This is discussed below. Environmental Cleanup: Where GM crops cause or threaten damage to the environment, there may be no established procedure or mechanism for environmental cleanup or prevention. Local or state authorities may be called on to act where they no not have the funding or specialised knowledge required to do so. The Office of the Gene Technology Regulator (OGTR), which administers the Commonwealth Gene Technology Act 2000 acts through a licensing regime to regulate GMOs. While the Gene Technology Regulator will in theory attempt to be satisfied that any risks posed by a GM crop can be managed in such as way as to protect the health and safety of people and the environment, in reality GMOs can pose risks that cannot easily be assessed or managed. Nor does the OGTR Page 4 of 10 Briefing on Australian Liability for Damage Caused by Genetically Modified Crops address the economic consequences of GM crops or address the liability issues for those suffering GM crop contamination. INTERNATIONAL NEGOTIATIONS ON LIABILITY FOR GM CROPS There are currently ongoing negotiations to put into place an international regime addressing liability and redress for living modified organisms (LMOs, which includes GM crops). The current negotiations are expected to conclude during the week of the Biosafety Protocol Meeting of the Parties (MOP) in Bonn in May 2008. Of particular interest are the discussions about how best to develop and implement measures to prevent damage to biological diversity and the sustainable use of its components from the transboundary movement (i.e. export and import) of living modified organisms, which may for instance occur through contamination, and measures to effect remediation and restoration after damage occurs. Options include requiring securities, such as a bond or an insurance policy, to pay for the liability or redress of any damage that occurs. The establishment of an international back-up fund to compensate for damage resulting from the trans-boundary movement of GM crops is also being discussed. This could ensure that compensation is forthcoming when liability or clean-up requirements are not otherwise paid for. In practice this could mean that either the exporters of GM crops would be required to establish an insurance policy or pay a levy into a fund, and/or that importers be required to put up a financial bond or surety before importing GM crops. RECOMMENDATIONS 1. Strict liability legislation Legislation should be enacted to ensure that GM technology providers and GM farmers are held strictly liable for any contamination that occurs as a result of the sowing, growing, harvesting, transport and storage of GM crops. This will require addressing the issues of strict liability, defences, foreseeability, causation, the burden of proof, the statute of limitations and other issues discussed in this briefing. Non-GM growers should not be held liable for contamination events if their crops, harvest or land are contaminated and subsequently contaminate the crops or harvest of others. The Gene Technology Act should be amended to ensure that non-GM farmers are not held liable for any contamination. The Austrian Gene Technology Act,33 for instance, imposes strict liability and holds the party releasing GMOs liable for harm to health, property or the environment, and requires companies to carry liability insurance. It requires the operator to repair damage caused as a consequence of the genetic modification, including environmental damage.34 There is a presumption that the damage is caused by characteristics resulting from the genetic modification, or in combination with other hazardous characteristics of the GMO.35 The German genetic engineering36 legislation similarly has a presumption that damage is caused by the GMO and provides for financial guarantees. 2. A mandatory insurance policy or bond prior commercial planting A mandatory insurance policy or bond should be required from technology providers and farmers prior to any commercial planting of GM crops. The scale of the insurance coverage or the size of the bond will depend on the extent of proposed planting and will increase or decrease as areas under GM cultivation increase or decrease. This will ensure that any liabilities are actually met and cannot be avoided by under-capitalisation or other devices. 3. Non-GM farmers should put GM farmers on formal notice Page 5 of 10 Briefing on Australian Liability for Damage Caused by Genetically Modified Crops GM-free farmers should write a letter putting GM farmers on formal notice that they may be liable for contamination. This will assist in preventing a remoteness or foreseeability defence from succeeding. 4. Government participation in the Biosafety Protocol negotiations The Australian government should participate constructively in the international Biosafety Protocol liability and redress negotiations to ensure that rules, procedures and a backup fund are put in place to consistently and effectively address these issues on an international scale. 3 Victorian Government Department of Primary Industries (2007) Issues Paper: Review of the Moratorium on Genetically Modified Canola, July 2007. 4 See Lee, M. & Burrell, R. (2002) Liability for the Escape of GM Seeds: Pursuing the “Victim”? 65(4) Modern Law Review 517, pg. 518. 5 Friesen, L., Nelson, A. & Van Acker, R. (2003) “Evidence of Contamination of Pedigreed Canola (Brassica napus) Seedlots in Western Canada with Genetically Engineered Herbicide Resistance Traits,” Agronomy Journal 95, 2003, pp. 1342-1347, cited in NFU (2005b). 6 Network of Concerned Farmers (2007) 7 Ibid. 8 See also Article 10.6 and Article 11.8 of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted on 29 January 2000, entered into force 11 September, 2003. (Biosafety Protocol). 9 UNEP (1992) Rio Declaration on Environment and Development, http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163, viewed 25/3/08. 10 The principle is embodied in Principle 16 of the Rio Declaration on the Environment: National authorities should endeavor to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. The principle was also recognised more recently in the Johannesburg Program of Action., See The World Summit on Sustainable Development, Johannesburg Plan of Implementation, A/Conf.199/20, (JPOI), paras. 15(b) and 19(b). 11 Centre for Food Safety (2005) Monsanto vs. US Farmers, www.centerforfoodsafety.org/pubs/CFSMOnsantovsFarmerReport1.13.05.pdf, viewed 25/3/08. 12 The presence of any GM contamination in organic farming is prohibited by the National Standard for Organic and Biodynamic Production. See the Organic Produce Export Committee, Australian Quarantine and Inspection Service, „National Standard for Organic and Bio-Dynamic Product‟ (December 2002), standard 3.1.8(b) and 3.6.3, cited in 2003 paper, note 30. 13 Lee & Burrell (2002) pg. 517. 14 Lunney, M. & Burrell, R. (2006) Legal liability of farmers growing crops, http://www.daff.gov.au/agriculture- food/biotechnology/reports/liability_issues/a_farmers_choice_legal_liability_of_farmers_growing_crops_june_2006, viewed 25/3/08. 15 Executive Summary, p. i. 16 On a site specific basis due to the licensing regime imposed by the Gene Technology Act 2000 (Cth). 17 Lee and Burrell also note that, since an injunction is the primary remedy in private nuisance, courts may be discouraged from ruling that the cross pollination amounts to a nuisance, since this would effectively override regulatory authorisation. 18 Science and Economic Policy Branch, Australian Government Department of Agriculture, Fisheries and Forestry (2003) Liability Issues Associated with GM Crops in Australia, September 2003, p. 10,http://www.daff.gov.au/__data/assets/word_doc/0007/182842/liability_issues_paper_final.doc, viewed 25/3/08. Page 6 of 10 Briefing on Australian Liability for Damage Caused by Genetically Modified Crops 19 A court will be reluctant to impose a duty of care where there is scientific uncertainty over the extent to which pollen or seed may disperse, as determination of possibly affected parties will be difficult. See Perre v Apand  HCA 36 per Gleeson CJ at 10, 13 and Gaudron J at 42. 20 The courts will then will examine considerations of fairness and reasonableness. See Caparo Industries plc v Dickman  2 AC 605 (HL), per Lord Bridge, and Lord Roskill at 628. The court will also consider any policy considerations to deny or reduce liability. Anns v London Borough of Merton  AC 728, 751 (HL) per Lord Wilberforce, and South Pacific Manufacturing Co. Ltd. v NZ Security Consultants Ltd  2 NZLR 282, 294 (CA) per Cooke P. 21 See Todd (2001) Negligence: Breach of Duty, in The Law of Torts in New Zealand (3rd ed.), 382 ff. 22 See Todd, note 21, 402. 23 Lee, M. & Burrell, R. (2002). 24 For example if an organic farmer demands a lower contamination threshold than is commonly accepted, that farmer may face difficulties under the sensitivity rule. Non-GM farmers may likewise face hurdles if their specific needs are greater than „ordinary‟ farmers.. See Rodgers, C.P. (2003) Liability for the Release of GMOs into the Environment: Exploring the Boundaries of Nuisance, Cambridge Law Journal,July 2003, 62:371-402. 394, 25 e.g Limitations Act 1935 (WA), at http://www.austlii.edu.au/au/legis/wa/consol_act/la1935133/, viewed 25/3/08. Section 38 specifies 6 years. 26 These exemptions have come into play recently. Bayer CropScience, which created the GM rice LL601, blamed contamination on “unavoidable circumstances which could not have been prevented by anyone”; “an act of God”; and farmers‟ “own negligence, carelessness, and/or comparative fault” in a recent lawsuit. See Weiss, R. (2006) Firm Blames Farmers, „Act of God‟ for Rice Contamination, Washington Post, 22/11/06, http://www.washingtonpost.com/wp-dyn/content/article/2006/11/21/AR2006112101265.html, viewed 25/3/08. 27 See a discussion in the 2006 paper, page 10 and following. See also Perre v Apand Pty Ltd  HCA 36 (1999) 165 ALR 606 (12 August 1999), at http://www.austlii.edu.au/au/cases/cth/high_ct/1999/36.html, viewed 25/3/08. A farmer, Apand, introduced bacterial wilt onto the land of another farm, the Sparnons. In a lengthy decision involving seven judgments, the High Court held that the farmer did owe a duty of care to the Perres and other appellants as a member of a non-indeterminate class. - In this case it was to the owners of, and the growers of potatoes on, land within 20 km of the Sparnons - where potatoes grown on that land were exported to Western Australia (which had an import ban on potatoes grown within 20 km of farms with bacterial wilt). This was a case of pure economic loss, since the loss did not follow from any physical injury, but because an outbreak of bacterial wilt on the Sparnon property meant the other farmers were unable to sell their produce. This case therefore could support the proposition that a GM farmer may owe a duty of care to nearby GM-free farmers to avoid contaminating their property, where those farmers can be ascertained. If there was held to be such a duty of care, the GM farmer could be liable for economic loss - such as lost marketing opportunities, or reduced market prices. However, it should be noted that breach of the duty of care, or negligence, must be proven, and courts may be reluctant to find negligence in the absence of non-compliance with controls. 28 Gene Technology Act 2000 (Cwth) sections 32 and 33 may give rise to liability if the farmer grows a GM crop without a licence. 29 e.g. the Gene Technology Act 2001 (Vic). 30 See Trade Practices Act 1974 (Cth) on misleading or deceptive practices and Fair Trading Act 1987 (NSW) 31 See the Percy Schmeiser case, Monsanto Canada Inc. & Monsanto Co. v Percy Schmeiser & Schmeiser Enterprises Ltd (2001) FCT 256 (Federal Court of Canada, Trial Division.). The Court found that Schmeiser grew and harvested crops derived from Monsanto‟s Roundup Ready soybeans. 32 Such as a warranty of GE-free status. 33 Austrian Gene Technology Act (Gentechnikgesetz), Nr. 510/1994), in force 1 January 1995, amended in 1998 and 2002 at http://www.gentechnik.gv.at/gentechnik/gesetz/gesetz_bund.html, viewed 25/3/08. See also theNorwegian Gene Act of 1993 which provides for strict liability and environmental remediation. 34 Austrian Gene Technology Act §79a. 35 Austrian Gene Technology Act §79d. Page 7 of 10 Briefing on Australian Liability for Damage Caused by Genetically Modified Crops 36 Genetic Engineering Act (Gesetz zur Regelung der Gentechnik) as revised by the promulgation of 16 December 1993 – Federal Law Gazette I, p. 2066 – and amended by Article 1 of the Amendment Act of 17 March 2006 – Federal Law Gazette I, p. 534 Page 8 of 10