Kiwifruit Decision: Attorney-General v. Strathboss Kiwifruit & Ors (2020) NZCA

The Court of Appeal today released its judgment in the Attorney-General’s appeal against the High Court finding that the Crown was liable in negligence to Strathboss Kiwifruit Ltd (as a representative kiwifruit grower plaintiff), but not liable to Seeka Ltd (a post-harvest operator), for losses caused by the outbreak of Psa3 in late 2010 and 2011. The Court of Appeal has allowed the Crown’s appeal and dismissed Seeka’s cross-appeal. Background From 2010 Psa3, a virulent strain of a plant disease that destroys kiwifruit plants, swept through kiwifruit orchards in the Bay of Plenty region. The disease could not be eradicated. It took several years for the industry to re-establish itself. Psa3 was said to have been introduced to New Zealand by a consignment of kiwifruit pollen imported into New Zealand from China for the new use of commercial artificial pollination of kiwifruit orchards. Strathboss and Seeka alleged that the Crown was liable to kiwifruit growers and post-harvest operators for granting an import permit in 2007 and renew in that permit in 2009 without undertaking a risk assessment, and for failing to inspect the consignment when it arrived in New Zealand. In the High Court, the Judge found the Crown liable to Strathboss in relation to the grant of the import permit. She cleared the Crown of liability for failure to inspect the pollen, and of liability to Seeka, the post-harvest operator. The Crown appealed the permit finding. Strathboss cross-appealed in relation to the failure to inspect conclusion. Seeka cross-appealed in relation to the dismissal of its claim. The Judgment The Court of Appeal has allowed the Crown’s appeal on the basis that the Crown has a statutory immunity precluding liability for the alleged negligent acts or omissions. First, the Court has concluded that the Crown cannot be liable directly in tort by reason of the Crown Proceedings Act 1950. Its liability, if any, must be vicarious. That means the respondents must first identify direct liability on the part of individual Crown servants or agents from the Ministry of Agriculture and Fisheries (MAF), the agency responsible for border control at the relevant times, before the Crown can be vicariously liable in tort. Secondly, the Court has concluded that s 163 of the Biosecurity Act 1993 provides an immunity in respect of the acts or omissions of MAF personnel at both the pre-border and border stage. That is, the individuals said to have been in breach of a duty of care to the respondents have an immunity against civil liability. The Crown takes the benefit of this immunity pursuant to s 6(1) of the Crown Proceedings Act. Inasmuch as no cause of action can lie against the individual personnel responsible, nor can one lie against the Crown vicariously. These conclusions meant the appeal was allowed in favour of the Crown and the cross-appeals dismissed. Additional reasoning Recognising that the judgment may be considered further in another jurisdiction, the Court went on to analyse duty and breach as if the immunity issue had instead been answered in favour of Strathboss and Seeka. The first cause of action related to whether MAF personnel owed a duty of care at the pre-border stage in relation to the assessment of risk associated with the importation of pollen for the previously untried use in commercial artificial pollination of orchards. Considering that issue, the Court would have found that no duty of care was owed. Although there was sufficient proximity (and a tortious duty was not excluded by statute), policy factors, in particular the risk of indeterminate liability, meant it would not be fair, just and reasonable to impose a duty of care in these circumstances. Had MAF owed a duty of care, however, the Court would have found that the relevant MAF personnel had acted in breach of the alleged duty by granting the import permits without undertaking an effective risk assessment in relation to the intended new use. Additionally, the wording of the import permit (allowing for both milled and unmilled pollen) would have been in breach of duty. The second cause of action related to whether MAF personnel owed a duty of care at the border stage to inspect the consignment of kiwifruit pollen. For essentially the same reasons as the first cause of action, the Court would have found no duty of care to exist. While there was sufficient proximity for a duty of care to exist, policy factors, in particular indeterminacy, meant it would not be fair, just and reasonable to impose a duty of care in the circumstances. Had MAF owed a duty of care, the Court would have found the failure to inspect the consignment fell below the standard of care expected of skilled and informed MAF personnel in the circumstances. However that failure had no causative effect because the permit made provision for unmilled pollen. The Court would have upheld the Judge’s overall finding that the consignment was, more likely than not, the source of the Psa3 incursion. The full judgment is available at this link

Kiwifruit Decision: Attorney-General v. Strathboss Kiwifruit & Ors (2020) NZCA

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