Horse vaccine class action dismissed amid failure to prove “all horses” representation

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This was the trial of a class action relating to a vaccine (Equivac HeV) produced, marketed and distributed by the respondent. The vaccine was designed for horses, to provide protection against the Hendra virus. The Hendra virus was understood to be transmitted by flying foxes, and the consequences of a horse contracting it were usually fatal. The virus could also be transmitted from horses to other horses, and from horses to humans (and was often fatal in humans when contracted). As such, the vaccine was widely marketed throughout Australia, and horse owners were strongly encouraged to vaccinate their horses (even though occurrences of the virus were relatively rare).

The applicant, a horse owner, claimed that her horse suffered severe side effects after having been vaccinated, which she claimed was caused by the vaccine. In addition, a sample class member (whose claim was also determined at the initial trial) owned a horse which died within just five days after having been vaccinated.

The applicant alleged that the respondent made several statements about the vaccine that were misleading or deceptive, and also that the vaccine breached the ‘acceptable quality’ guarantee in the Australian Consumer Law. Specifically, she alleged that the respondent had represented, via various publications, that:

• there was a serious risk of horses contracting the Hendra virus in all areas of Australia in which flying foxes were present (geographic spread representation);
• the vaccine produced no serious side effects (no serious side effects representation); and
• all horses in Australia should be treated with the vaccine (all horses representation).

Following a lengthy trial, Rares J found, in summary, that:

• The respondent did not make the geographic spread representation.
• Although the respondent did make the no serious side effects representation, the representation was not misleading. In particular, his Honour found that the only side effects from the vaccine that were established on the evidence were minor, transient side effects that are common to all vaccines, and that the vaccine did not produce serious side effects. For the same reasons, his Honour found that there was no breach of the ‘acceptable quality’ guarantee. His Honour rejected the evidence of the applicant as to the side effects which she claimed her horse suffered as a result of the vaccine. In relation to the sample class member, although her horse had died just five days after being vaccinated, his Honour considered that the evidence fell well short of establishing the exact cause of death, or that it was in any way linked to the vaccine.
• The respondent also did make the all horses representation, but that representation, properly construed, was a statement of opinion, and the respondent had reasonable grounds for that opinion. Accordingly, it was not misleading.
• Even if the above conclusions were wrong, his Honour held that the applicant and the sample class member had failed to prove the losses which they claimed.

Thus, the applicant’s and class members’ claims were dismissed in full.

(Postscript: On 21 December 2022 the applicant filed a Notice of Appeal from his Honour’s judgment, but promptly discontinued the appeal some three weeks later.)

Abbott v Zoetis Australia Pty Ltd [2022] FCA 1390

Federal Court of Australia, Rares J,
23 November 2022

Applicant’s Solicitors: LHD Lawyers
Respondent’s Solicitors: Piper Alderman
Applicant’s Funder: N/A

Austlii Link: Available here

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