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10. Conclusions

142 WHEN CONSIDERATION IS GIVEN to altering the current liability regime two fundamental issues arise:

• Are there new challenges presented by GMOs that are not adequately dealt with by the existing liability regime?

• Any new regime should treat like with like. If there are gaps in our liability regime, are those gaps specific to GMOs?

143 Our inquiry suggests that the current statute and common law will not ensure that all damage that could potentially be caused by GMOs will be compensated. It is unlikely that any liability regime could guarantee this.

144 The main difficulties for any liability regime stem from the special features of GMOs (mindful that these features may not be unique to GMOs). These include the fact that:

• it is difficult to estimate the level of risk posed by GMOs;

• it is difficult to assess the magnitude of the potential damage that could be caused;

• genetically modified organisms have the potential to create catastrophic levels of harm;

• genetically modified organisms have the potential to cause irreversible damage;

• some of the potential negative effects of GMOs will likely manifest in the long term and be diffuse in nature;

• plaintiffs may face difficulty and expense in establishing causation and proving the extent of any damage; and

• genetically modified organisms are a source of ethical and spiritual concern for part of society.

145 A range of possible alterations to the existing liability regime have been identified:

• creating a new strict liability tort;

• creating new public law duties;

• requiring insurance or a bond (or ERMA discretion to require insurance or bond); and

• creating a compensation fund.

146 The Law Commission suggests that the development of a liability regime will require three core policy decisions:

• First is the extent to which GMOs are different from other human activities or technologies, either from a scientific or ethical perspective. Should activities with similar risks be treated in similar ways by any new liability regime?

• Second is the extent to which those involved in genetic modification should be held directly accountable for anything that goes wrong. The more onerous the obligation placed upon them the more there will be a curtailment of work in this area and a lessening of the pool of individuals willing to take the risk. Therefore, there is a policy decision to be taken: on the one hand, weighing the protection of the public against uncompensated and potentially significant losses, on the other hand, considering the damage that may be done to a fledgling industry by the costs of a stringent liability regime.

• Third is the possible role of government as guarantor of any damage caused by the genetic modification industry. None of the possible changes to the current liability regime will effectively deal with damage that takes a long time to be discovered, that is catastrophic in its magnitude, or is irreversible. In such cases, the question will be whether the government, on behalf of the entire community, should be providing compensation for those who suffer damage but are unable to receive compensation through any liability regime.

147 Such decisions should not be made by lawyers. The ethical and spiritual issues involved are beyond our mandate. Decisions about who should be responsible for any adverse consequences of genetic modification must be widely debated and clearly agreed upon.[142]