At the top of the label under the word "CAUTION" the following words appear:
"USE STRICTLY AS DIRECTED.
KEEP OUT OF REACH OF CHILDREN
FOR ANIMAL TREATMENT ONLY"
9 The Tribunal also had before it the labelling used in respect to another product (Eskalin). It appears to have been used for purposes of comparison (inter alia as providing the detail that was said to be missing from the Feed Rite label). In reaching its decision, the Tribunal did not have regard to this material.
10 A primary active ingredient in Feed Rite was Virginiamycin (the drug). It has the function of preventing lactic acidosis. To perform that function it must be mixed in thoroughly in the batch of feed so that in every mouthful of feed that the animal gets, the animal also gets a uniform dose of the drug. If that is not done, there will be what are called "hot spots" which have no drug in them. The Tribunal made a finding that the sheep died from lactic acidosis.
11 In the proceedings before the Tribunal, the second defendant alleged that because of inadequacies in the labelling they suffered the loss of the sheep. In opposing this case, the plaintiff looked to the expert evidence of Dr Lee and oral evidence of Mr Bendick. The latter has been described as a consultant to the plaintiff and gave evidence as to what was said by him inter alia to Mr Carroll (a director of the second defendant). Messrs Carroll and Payten gave evidence that was in conflict with the evidence given by Mr Bendick. The evidence concerned what had been said in relation to the use of equipment, (a mixall or an auger). The plaintiff also advanced an issue that the second defendant had not followed the directions on the label (it was said that there had not been a thorough mixing). The evidence of Dr Lee was relied on to support this contention. There was conflict between his views and the oral evidence from Messrs Carroll, Street and Payten.
12 The Tribunal found that the labelling was inadequate. It resolved the question of conflicting evidence by preferring the corroborated evidence of Messrs Carroll and Payten to that of Mr Bendick. The conflict between Dr Lee and the lay witnesses is referred to in paragraphs 16 and 17 of the decision. Minds may differ as to the finding made. In the present case it does not seem to me to matter. However, if a view needs to be expressed I prefer the view that the Tribunal was saying that it was not satisfied that there had been a failure to thoroughly mix.
13 The reasons of the Tribunal contain inter alia the following:-
"17. The Top Off label having specified the ration formula then goes on to say 'DIRECTIONS: Thoroughly mix 20 Kg (1 bag) to each tonne (1000Kg) of ration'. No mixing method is specified and no particular machinery is specified to achieve that purpose. In my opinion the directions recorded above are inadequate and deficient and in practice were totally unsuccessful. I might have found that one of the three witnesses failed to properly mix the supplement with the ration formula but I can not accept that all three separately failed to do so. In my opinion the very brevity of the directions given on the label is in itself deceptive and totally inadequate to properly instruct the end user or alert he or she to the very probable dangers from incorrect use."
14 I now turn to what took place during the hearing of the appeal. Mr Wilson appeared for the plaintiff. Mr Motbey appeared for the second defendant. Both counsel handed up written submissions and supplemented those submissions orally.
15 It may be said that Mr Wilson was confronted with a difficult task. I shall expressly refer to some of the arguments that were pressed. His client challenged the finding as to inadequate labelling. He relied on what was said in Watson v Foxman (1995) 49 NSWLR 315 at 318. It was said the Tribunal merely made an assumption of compliance with the label directions and that the finding as to inadequacy of the directions was founded on that assumption. It was also said that the conflict between Dr Lee and Messrs Carroll, Street and Payten was left unresolved.
16 It seems to me that the finding as to inadequate labelling was a finding of fact and that in the circumstances of this case it could not be successfully challenged as an error of law. I do not accept the submission that the finding was founded on an assumption. There seems to be no dispute that the Tribunal determined the application on the issue litigated by the parties (that the labelling was inadequate).
17 I have read what was said in Watson. In my view, it does not assist the plaintiff in this case. Indeed, it seems to me that the submission misconceives what was observed in that case. In the present case, the finding was that the loss or damage flowed from the inadequacy of the directions. The direction to thoroughly mix was regarded as inadequate. In these circumstances, it does not seem to me that a failure to comply with the direction would have assisted the plaintiff in meeting the second defendant's claim. Be that as it may, the Tribunal appears to have found against the plaintiff on that question. There were competing views as to the onus borne on it. If it be necessary to express a view, I prefer the view that it was borne by the plaintiff. For completeness, I should add that I do not accept that the conflict between Dr Lee and the lay witnesses was left unresolved.
18 The plaintiff bears the onus of satisfying the court that there has been error of law justifying the disturbing of the decision. In my view, that onus has not been discharged.
19 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits are returned.