D Pride & Partners v Institute for Animal Health [2009] EWHC 685

Key Point

Pigs becoming oversized was deemed a form of physical damage which can be recoverable under the tort of negligence rather than a form of pure economic loss.

Facts

  • An outbreak of foot and mouth disease from the defendant Institute of Animal Health (together with the other defendants, Ds) led to a movement restriction being imposed on a livestock in the surrounding region
  • As a result, the pigs of claimant farmers (Cs) became oversized and thus lower in market value
  • Cs claimed for damages from Ds for their losses in profits in negligence, amongst other claims
  • Ds applied to have the claim struck out

Issue

Was loss of profits as a consequence of the pigs becoming oversized recoverable as a form of physical damage in negligence?

Held (High Court)

Cs’ claim was struck out; although in principle the pigs becoming oversized was a form of physical damage that is recoverable in negligence, there was no real prospect of Cs establishing a duty of care towards such damage.

Tugendhat J

  • “In ordinary English, injury and damage are words that suggest causation by a factor external to the property.”: [58]
  • “If the produce is too fat (or thin), or too ripe, as a result, for example, of the failure of a ventilation pump, or delay, caused by breach of duty of care, then a court could conclude that that was as much the result of an external factor (in the sense meant in the passage from Clerk & Lindsell), as would the death of the produce. If a relevant duty of care is breached, and it results in the produce passing the stage of its natural development at which it can be marketed, then I consider that there is a real prospect of a court accepting that as physical damage.”: [74]
  • “It follows that in my judgment, subject to an important proviso, those Claimants who allege that their pigs went to the abattoir oversized have a real prospect of succeeding in the contention that that is physical damage, and so of recovering the loss of profit truly consequential upon that fact, but not any other economic loss. The proviso, of course, is that they must also have a real prospect of proving the other elements in a cause of action relied on by them.”: [75]