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5. Problems with the current regime and a range of possible responses

61 CURRENTLY, an individual who has suffered damage (other than personal injury) caused by another person’s GMO, if they are not in a contractual relationship with that other person, will have to rely on the torts of negligence, nuisance, and the rule in Rylands v Fletcher to obtain a remedy.

62 The Royal Commission report concluded that the existing liability regime of tort and statute is sufficient and that “the common law ... [is] well able to mould new remedies for novel situations ... From a legal liability perspective we have not been persuaded there is anything so radically different in genetic modification as to require new or special remedies”.[61]

63 In evaluating this assessment it is necessary to identify the instances where these torts and statutory obligations will fail to provide a remedy because of the special features of GMOs discussed previously (paragraphs 19–20). The following table summarises the potential issues that arise in relation to the current regime and possible responses by both the private and public regimes:

Table 1: Summary of potential issues in relation to current liability regime and possible responses in private and public regimes

Issue Private regime Public regime

Harm caused is Remove requirement to Consider whether

unforeseeable prove forseeability forseeability must be

proven

Difficult to prove Alter the burden Consider level of proof

causation of proof required

Person responsible for Require insurance or Require insurance or

damage has inadequate bonds, or create bonds, or create

funds compensation fund compensation fund

Person responsible for Tort ineffective Create compensation fund

damage no longer exists or rely on state

compensation

Damage is widespread Tort less effective Create compensation fund

or diffuse or rely on state

compensation

Damage is catastrophic Tort ineffective Rely on state

or irreversible compensation, or no

effective remedy

64 If any new regime were to be adopted, it is likely that a combination of responses would be most effective.

65 The Law Commission has not identified any liability regime that could ensure that all damage that might be caused by GMOs would be compensated. Genetically modified organisms pose the two possibilities of a low-probability but catastrophically damaging event, and of damage that is very slow in appearing. None of the existing mechanisms are able to guarantee compensation for either circumstance because nothing is likely to be able to compensate catastrophic or irreversible damage, and few remedies will be available for liability claims which may take decades to surface. In either of those situations, the options are that the losses lie where they fall, or that government steps in.