Class Actions, Crown Negligence, Immunities and Epidemics on Trial: AG v Strathboss [2020] NZCA 98

Abstract

Might the Crown be held liable for permitting the incursion of a contagious disease into New Zealand, resulting in epidemic spread and significant economic loss? Should it be liable? While these questions might attract interest due to New Zealand’s COVID-19 response, and on-going outbreaks related to border controls, the Court of Appeal recently answered this question regarding a bacterial disease (Psa3) affecting kiwifruit in Attorney-General v Strathboss Kiwifruit Ltd [2020] NZCA 98. In Strathboss the Court of Appeal found that the Crown was immune from liability in tort for the spread of the Psa3 bacterium amongst kiwifruit orchards in New Zealand, from 2010.This case is foremost a consideration of Crown immunity in tort, and secondarily an analysis of negligence. Yet it raises significant and broader issues, such as statutory interpretation of Parliamentary intention, class actions, public authorities, cost-shifting, suing the proper defendant, and border security. Many of those issues cannot be fully analysed here. Given the factual density, the complex legal issues,and the length ofthe High Court and Court of Appeal decisions, this case note briefly summarises the key issues under consideration by the Court of Appealand its findings. As the Supreme Court has granted leave to appeal on broad grounds (Strathboss Kiwifruit Ltd v Attorney-General[2020] NZSC68), we highlight aspects of the decision that require further scrutiny and clarification.