Foot & Mouth outbreak in Surrey 50 years ago set legal precedent and foreshadowed current problems
Alan Bannister, partner, Vizards Wyeth (solicitor specialising in insurance and litigation)
If the present outbreak of foot and mouth disease in Surrey is due to the escape of a virus being used at the experimental facility in Pirbright (either the commercial one or that of the ministry) then this is a considerable case of déjà vu. We have been here before "about 50 years ago" as one local farmer commented on Radio 4..
He was absolutely correct and that outbreak led to the case of Weller & Co –v- Foot and Mouth Disease Research Institute, often quoted in text books on issues of economic loss and foreseeable risk of injury.
Weller & Co were auctioneers of cattle at Guildford and Farnham markets. The Defendants owned and occupied premises in Pirbright where they carried on experimental work in connection with foot and mouth disease in cattle for which purpose they imported a virus from Africa. In late 1959 or early 1960 cattle in the vicinity of the Pirbright premises became infected with foot and mouth disease, allegedly as a result of the escape of the virus from the premises. As a result of the outbreak of the disease the Ministry of Agriculture made an order under statutory powers closing Guildford and Farnham markets. Weller & Co were unable to carry on their business as auctioneers because of the closure and sued for their loss of profits on the cattle sales that would otherwise have taken place.
In the event Weller's case was decided as a preliminary issue by Widgery J in 1965. The decision confirmed the common law principle that the duty of care which arises from a risk of direct injury to person or property is owed only to those whose person or property may foreseeably be injured. In this case the Defendants were not liable in negligence, because their duty to take care to avoid the escape of the virus was due to the foreseeable fact that the virus might infect cattle in the neighbourhood. The duty was owed to the owners of cattle and not to a third party such as the auctioneers who had suffered economic and not direct loss or damage.
This distinction is still good law and there is no reason to suppose that a case based on similar facts to Weller would be decided any differently today. However, it is ironic to have so much crisis management talk now on what has been presented as a novel set of circumstances when this may well simply be a re-run of what happened in 1959. We just need to be told where the present virus was imported from. Could it be as exotic as Africa?
