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• Types Of Damage
• The Private Regime
• The Public Regime

4. Summary of the current
liability regime

Types of damage

37 ANY DAMAGE from GMOs is likely to fall into the following categories:

• personal injury (for example, allergenicity, toxicity);

• property damage (such as loss resulting from GMO contamination of land, crops, processed foods and other products);

• financial or economic loss (such as loss of organic status by a genetic modification-free farmer);

• environmental damage (such as loss of biodiversity); and

• spiritual harm (which would not be covered by the regimes described).

38 The current liability regime has two aspects:

• The private regime – where a person sues another person for damage they have suffered (currently consisting of the common law torts of negligence, nuisance and the rule in Rylands v Fletcher[35]).

• The public regime – where the state takes action rather than an individual (for example, by punishing an individual for their wrongful activity and/or requiring the individual to rectify the consequences). A public regime can be effective at establishing regulatory control (for example, by creating inspection and enforcement powers). It is also likely to be more effective than private actions in responding to widespread damage where effective remedy requires a co-ordinated approach (such as the eradication of a pest).

The Private Regime

39 The private remedies available currently to injured plaintiffs are provided by the common law torts of negligence, nuisance and the rule in Rylands v Fletcher.

Negligence

40 Generally, a plaintiff can bring an action in negligence in cases of damage to personal property or of personal injury not covered by the accident compensation scheme (discussed below). A plaintiff needs to show that:

• the defendant owed the plaintiff a duty of care (that is, the risk of damage was foreseeable);

• the defendant breached that duty;

• the breach of duty caused the loss to the plaintiff; and

• the loss suffered was not too remote.[36]

41 It may also be possible for approval authorities (such as the Environmental Risk Management Authority (ERMA)) to be held to have been negligent in giving approval if damage subsequently occurs.[37]

Nuisance

42 If damage is caused to land, a plaintiff can rely on the tort of nuisance, which imposes more stringent duties on the defendant. Nuisance is available when the defendant uses their own land to carry out an activity that causes something harmful or offensive to affect the land of a neighbour.[38] The activity may either cause actual damage or may unreasonably interfere with the plaintiff’s enjoyment of their land. For example, an action in nuisance could result from the spread of genetically modified plants from one farmer’s land to the land of a farmer growing genetic modification-free crops.

43 If an occupier is responsible for creating a nuisance, their liability is strict, that is, proof of negligence is not needed and it is no defence that the occupier took all reasonable precautions.[39] However, as with negligence, the harm caused must be foreseeable.[40] This may be difficult to prove with a new technology such as genetic modification.

44 An action for public nuisance may also be possible. The tort of public nuisance has been defined as an interference “which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”.[41] Unlike private nuisance, the Attorney-General has standing to sue, on behalf of a community, to restrain a widespread nuisance, rather than leaving private individuals to initiate proceedings.[42] Although the tort still exists,[43] few cases come before the court because this area has, in large, part been superseded by specific statutory measures aimed at conduct that poses a threat to public health or safety,[44] and an expanded tort of negligence.⁴⁵

The rule in Rylands v Fletcher

45 Nuisance principles tend to arise when there is continuing or intermittent harm caused by the defendant.[46] For cases of isolated escape, liability is covered by the rule in Rylands v Fletcher.[47] The rule covers the isolated escape of something harmful to the plaintiff’s land when the defendant is making “non-natural” use of their land.

46 Like nuisance, liability under the rule is strict and it is no defence that the defendant took all reasonable precautions. However, as with nuisance, the escape must have been foreseeable, even if the immediate cause of the escape was not.[48]

47 Courts may be reluctant to decide whether producing GMOs is a “non-natural” use of land (under Rylands v Fletcher) or is an unreasonable interference (under nuisance). This choice could involve the courts in policy decisions that go to the heart of the genetic modification debate. As discussed, people have differing views as to whether genetic modification is merely another form of breeding technique or whether it is technology of an entirely new kind.[49]

48 The operation of these tort actions are discussed in detail in the Royal Commission report[50] and in Professor Stephen Todd’s paper “Liability issues involved, or likely to be involved now or in the future, in relation to the use, in New Zealand, of genetically modified organisms and products”.[51]

The public regime

49 There are a number of statutes that potentially impact upon the production and use of GMOs. Unlike the private regime, none of these statutes focus on compensating individual plaintiffs, however, they may provide a process whereby damage caused could be rectified.

Hazardous Substances and New Organisms Act 1996

50 The purpose of the Hazardous Substances and New Organisms Act is to “protect the environment, and the health and safety of people and communities, by preventing or managing the adverse effects of hazardous substances and new organisms”.[52] Genetically modified organisms are included in the definition of new organisms under the Act.[53] The Hazardous Substances and New Organisms Act establishes the Environmental Risk Management Authority that is responsible for granting or withholding approval for:

• importing any new organism into containment;

• developing any new organism in containment;

• conducting contained field tests of any new organism; and

• releasing any contained or imported new organism.[54]

Only those who meet the controls and standards set out in the Act are eligible for approval. The Act creates penalties for breach of these conditions. The Act does not provide for any controls on new organisms once they have been approved for release into the environment.

Biosecurity Act 1993

51 The Biosecurity Act contains broad powers for the exclusion, eradication and management of pests and other unwanted organisms in New Zealand. A GMO would be classed an unwanted organism if:

• the Environmental Risk Management Authority had declined approval to import the organism;

• the Environmental Risk Management Authority had given containment approval for the organism, but the organism had escaped from the containment facility;

• after an approved general release, the Chief Technical Officer believed that the organism was capable of causing unwanted harm to any natural and physical resources or human health.[55]

52 The Biosecurity Act also allows for the creation of national or regional pest management strategies for organisms capable of causing adverse effects in relation to:

(i) New Zealand’s economic well-being;

(ii) the viability of threatened species of organisms, the survival and distribution of indigenous plants or animals, or the sustainability of natural and developed ecosystems, ecological processes, and biological diversity;

(iii) soil resources or water quality;

(iv) human health or enjoyment of the recreational value of the natural environment; or

(v) the relationship of Mäori and their culture and traditions with their ancestral lands, waters, sites, waahi tapu, and taonga.[56]

53 The Biosecurity Act appears to be the most effective existing statutory tool for dealing with a GMO that escapes or, after general release, turns out to be detrimental to human health or the environment.

Resource Management Act 1991

54 The Resource Management Act provides the framework for management of use of the environment in New Zealand. The Ministry for the Environment administers the RMA and it operates through consent authorities (such as regional, district and city councils) that grant permission by way of resource consents to use or develop a natural or physical resource and/or carry out an activity that affects the environment.

55 It is possible that environmental damage caused by GMOs could be dealt with under the RMA. Section 17(1) states that “[e]very person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of that person, whether or not the activity is in accordance with a rule in a plan [or] resource consent ...”. That duty is not itself enforceable, but in Part XII of the RMA there are powers to issue an abatement notice or an enforcement order requiring a person to:

• cease or prohibit anything likely to be noxious, dangerous, offensive or objectionable to such an extent that it has or is likely to have an adverse affect on the environment; or

• do something that is necessary in order to avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by that person.[57]

The person is also responsible for any reasonable costs and expenses incurred by any other people in avoiding, remedying, or mitigating any adverse effect.[58]

56 These powers are broad and their potential applicability to GMO damage has not been tested.

Personal injury and the accident compensation scheme

57 The accident compensation scheme also falls into the public remedy category because it removes the private right to sue, replacing it with state compensation. Personal injury caused by GMOs will most likely be covered in part by the Injury Prevention, Rehabilitation, and Compensation Act 2001. An individual might suffer personal injury by, for instance, consuming GMOs that were either toxic or that caused an allergic reaction. It is likely that this would be covered by section 25(1)(b) of the Injury Prevention, Rehabilitation, and Compensation Act, which provides that “accident” means:

... the inhalation or oral ingestion of any solid, liquid, gas, or foreign object on a specific occasion, which kind of occurrence does not include the inhalation or ingestion of a virus, bacterium, protozoa, or fungi, unless that inhalation or ingestion is the result of the criminal act of a person other than the injured person.

58 This would cover the ingestion of a GMO on one occasion but not over time (as this would not be ingestion “on a specific occasion”). If not covered by the accident compensation scheme, a plaintiff would have to rely on the normal tort remedies.

59 Harm caused by medical misadventure and harm that is work related would also be covered by the legislation.[59]

Others

60 Other Acts that may be relevant (such as the Food Act 1981, the Food Standards Code and the Medicines Act 1981) are summarised in Chapter 2.1 of Appendix 1 to the Royal Commission report.[60]