Equine influenza class action
FAQs - your questions answered
Equine influenza is a virus which causes acute respiratory disease in horses. It is highly infectious. It is thought that the disease has a nearly 100% infection rate in an unvaccinated horse population with no prior exposure to the virus, such as Australia before the 2007 outbreak.
The virus can be spread by coughing or if the virus is present on surfaces. It can be readily inactivated by a variety of disinfectants and chemicals.
The outbreak of equine influenza and quarantine measures
On 8 August 2007, horses arrived from Japan at Tullamarine Airport, Melbourne. Four of these horses were then flown to Kingsford Smith Airport, Sydney, where the Australian Quarantine and Inspection Service (AQIS), an arm of the Commonwealth Government, ordered them into quarantine at the Eastern Creek Quarantine Station. At the time the four horses arrived in Sydney, at least one of those horses was infected with equine influenza. While in quarantine that horse or horses became infectious.
Sometime between 10 and 17 August 2007, equine influenza escaped from the Eastern Creek Quarantine Station. By 29 October 2007, there were more than 7,000 infected premises in NSW and Queensland.
The class action is being brought against the Commonwealth in negligence. As the occupier of the Eastern Creek Quarantine Station, the Commonwealth had a duty to prevent the escape of dangerous substances and control dangerous activities.
The findings of theCallinan Inquiry into the 2007 Equine Influenza outbreak lend support to one part of a potential class action - that the Commonwealth breached its duty to:
- take reasonable care to control a dangerous substance (the equine influenza virus) on the Eastern Creek Quarantine Station, and
- to control dangerous activities carried out at the Eastern Creek Quarantine Station.
Ian Callinan AC, a former Justice of the High Court of Australia conducted a Commission of Inquiry in relation to the conduct of the Commonwealth in the outbreak and spread of equine influenza. A report was issued on 23 April 2008 with the Inquiry's findings. Those findings, and other documents related to the Inquiry can be found at: http://www.daff.gov.au/about/publications/eiinquiry
The Inquiry found that the virus most likely escaped from the Eastern Creek Quarantine Station on the person or equipment of a person who had contact with an infected horse.
The Inquiry also found significant systemic failures of the quarantine system. It concluded that AQIS failed to implement quarantine and biosecurity measures which would have prevented the disease entering Australia; a failure which resulted in horse-related industries sustaining lost jobs and revenue.
The class action has been filed in the Federal Court of Australia. It is seeking damages for economic loss. The amount of damages will vary from person to person depending upon their individual circumstances. It is being funded by Argentum Centaur EI Funding Private Limited, with an application for co-funding by Claims Funding Australia Pty Ltd, and run on a no win, no fee basis for group members.
Many people and businesses in the horse and racing industry in Australia faced substantial costs and financial hardship as a direct result of the equine influenza quarantine measures which were put in place once AQIS realised that the virus had escaped.
The Commonwealth made available financial assistance to some eligible applicants via the Commercial Horse Assistance Payment Scheme (CHAPS). However, the Australian Horse Industry Council conducted a Follow-Up Impact Study in February 2008 which concluded that the compensatory payments only served to offset losses by 8.5% or less.
Anyone who has received a CHAPS payment is still eligible to participate in this class action.
Recent statements by the new Commonwealth Attorney-General have led to a change in the funding arrangements for the equine influenza class action.
Group members will recall that when they joined the class action, they could choose either a co-funding arrangement between Argentum and Claims Funding Australia (a company owned by the principals of Maurice Blackburn) or have their claim funded by Argentum alone.
The co-funding arrangement was only going to proceed if the Court first gave its approval. It would have meant, for group members who chose co-funding, a lower commission rate of 25% for the funders, instead of the already relatively low 27.5% if Argentum alone was the funder.
The new Commonwealth Attorney-General has plainly stated that he is proposing to introduce further regulation of litigation funding and that he is strongly opposed to litigation funding companies, that are owned by the principals of law firms, funding lawsuits in which that law firm represents the claimants.
In these circumstances it seems likely that even if Court approval were obtained the co-funding arrangement will be prohibited by regulation. This situation has led Claims Funding Australia to withdraw its application to the Court for approval of the co-funding model.
The decision does not have any impact on the class action itself. The case is as strong as it ever was. Maurice Blackburn will continue to run the case and Argentum will continue to fund it.
Group members will not notice anything different about the conduct of the action. But from any judgement or settlement sum that is ultimately awarded, all group members will now pay a 27.5% commission rather than the 25% that many would have paid. That is an unfortunate consequence of the position of the new Commonwealth Attorney-General.
If you would like to discuss this or anything concerning the class action, please contact us on 1800 675 368, or email us.
For more information on the class action please phone Maurice Blackburn directly on 1800 675 368 or email us.