ATTORNEY-GENERAL v STRATHBOSS KIWIFRUIT LIMITED [2020] NZCA 98

ATTORNEY-GENERAL v STRATHBOSS KIWIFRUIT LIMITED [2020] NZCA 98 [9 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA420/2018[2020] NZCA 98BETWEEN ATTORNEY-GENERALAppellantAND STRATHBOSS KIWIFRUIT LIMITEDFirst RespondentSEEKA LIMITEDSecond RespondentHearing: 11–14 and 18–21 March 2019Court: Kós P, Brown and Courtney JJCounsel: J E Hodder QC, P H Higbee and N Fong for AppellantA R Galbraith QC, D M Salmon, M Heard and J P Cundy forRespondentsJudgment: 9 April 2020 at 1 pmJUDGMENT OF THE COURTA The appeal is allowed.B The cross-appeals are dismissed.C The respondents must pay the appellant costs for a complex appeal ona band B basis together with usual disbursements. We certify for secondcounsel.D Costs in the High Court are to be determined by that Court.____________________________________________________________________Table of ContentsPara NoSUMMARY OF JUDGMENTGENERAL MATTERSBackgroundThe kiwifruit industryBiosecurity in New ZealandThe Psa diseaseKiwi Pollen's permit applicationsImportation of the pollenThe Psa3 outbreak in New ZealandBiosecurity and its statutory frameworkIssues on appealISSUE 1: DIRECT LIABILITYIssue 1(a): Can the Crown be directly liable (as opposed tovicariously liable) in tort?Judgment appealedSubmissionsAnalysisConclusionIssue 1(b): What is the impact of any such direct liability onthe Crown's liability?ISSUE 2: IMMUNITYIssue 2(a): Did the High Court err in holding that s 163 of theBiosecurity Act 1993 did not apply to the acts or omissions ofMAF personnel at the pre-border stage?Judgment appealedSubmissionsAnalysisConclusionIssue 2(b): Did the High Court err in holding that s 163 of theBiosecurity Act 1993 applied to the acts or omissions of MAFpersonnel at the border clearance stage?Issue 2(c): Did the High Court err in holding that the Crowncannot take the benefit of the immunity under s 163 (to theextent it applied to the acts or omissions of any MAFpersonnel) pursuant to s 6 of the Crown Proceedings Act 1950?ConclusionINTERMISSIONISSUE 3: FIRST CAUSE OF ACTION — PRE-BORDERNEGLIGENCEOverviewStatutory contextThe evolution of s 22 of the Biosecurity Act 1993The alleged duty in the statutory contextJusticiabilityLaw making cannot be subject to a duty of careBorder control cannot be subject to a duty of careConclusion on justiciability[6][9][11][16][24][32][41][44][49][68][70][77][81][83][109][110][112][113][121][124][141][142][143][147][148][150][154][155][160][167][170][175][191]Issue 3(a): Did the High Court err in finding that MAFpersonnel owed a duty of care to Strathboss and somemembers of the Strathboss class to take reasonable skill andcare in their actions or omissions prior to the New ZealandPsa3 incursion to avoid physical damage to property, and totake care to avoid loss consequential on that damage toproperty?Relevant principlesProximityIs the Biosecurity Act 1993 inconsistent with the impositionof a duty of care?An absence of a close and direct legal relationshipMAF personnel neither direct cause nor primary source ofharmCouch (No 1)Conclusion on proximity of relationshipPolicyIndeterminate and disproportionate liabilityConflicting interests and regulatory decisionsIncompatibility with public law frameworkConclusion on dutyAdditional aspectsDuty to consultThe PHEL ReviewIssue 3(b): Did the High Court err in holding that MAFpersonnel breached their duty of care by acts or omissions atthe pre-border stage?The issuesAdvising Plant Imports TeamFailure to undertake risk assessmentThe risk assessment processThe issue on appealRAG's involvement in the decisionConclusion on breachIssue 3(c): Did the High Court err in holding that the acts oromissions at the pre-border stage caused the clearance andrelease of the June 2009 consignment?Issue 3(d): Did the High Court err in holding that MAFpersonnel did not breach their duty of care in (1) failing toimpose a condition requiring microscopic inspection; (2)permitting pollen to be "milled prior to import"; and (3)failing to consider the risk posed by kiwifruit pollen importsfollowing the Italian outbreak of Psa3 and/or finding that suchbreaches did not cause the clearance and release of the June2009 consignment?Microscopic inspection conditionThe revised wording of the import permitResponse to the Italian outbreak[192][192][201][204][218][224][231][240][242][243][264][270][273][276][276][283][298][299][302][317][317][319][325][349][352][358][359][364][377]ISSUE 4: SECOND CAUSE OF ACTION — NEGLIGENCEAT THE BORDEROverviewThe relevant statutory provisionsInspection during the clearance processThe June 2009 consignmentIssue 4(a): Did the High Court err in holding that MAFpersonnel owed a duty of care to Strathboss and members ofthe Strathboss class in respect of the clearance of theJune 2009 consignment?Issue 4(b): Did the High Court err in holding that MAFpersonnel did not breach their duty of care by acts oromissions at the border clearance stage and/or that anybreaches did not cause the clearance and release of theJune 2009 consignment?Did the Judge err in finding that the Nursery Stock IHS wasambiguous?Error in determining the standard of care: reliance onMs Willmot's and Mr McLaggan's evidenceNegligence by the inspectorConclusion on breachCausative effect of failing to inspect and failing to issue anNCRConclusionISSUE 5: CAUSATIONIssue 5(a): Did the High Court err in holding that Psa3entered New Zealand through the June 2009 consignment?Did the Judge wrongly require the Crown to prove acounter-factual?Did the Judge apply the correct legal principles in assessingthe circumstantial evidence?Admissibility of the genetic evidenceEvidence about PacICE1Reliance on MLVA evidenceConclusion on the genetic evidenceOrchard 1 as the source of the June 2009 consignmentThe epicentre of the Psa3 outbreakMeans of infectionTime to symptom evidenceSusceptibility of Hort16A varietySurvivability of Psa3Conclusion on infection pathwaysConclusion on causation[389][395][400][406][411][418][418][428][440][445][446][454][455][458][465][479][485][500][502][503][511][520][530][536][541][544][547]ISSUE 6: RESPONDENTS' CROSS-APPEALS ON DUTYOF CAREIssue 6(a): Did the High Court err in finding that those withinthe Strathboss class would have to show they had propertyrights in the vines and crops, or that their interest in the vinesand crops was sufficiently direct or closely associated withthose rights that they should be treated as though they havesuffered loss to their property?Issue 6(b): Did the High Court err in finding that MAFpersonnel did not owe a duty of care to Seeka, in its capacityas a PHO, to take reasonable skill and care in their actions oromissions prior to the New Zealand Psa3 incursion to avoideconomic loss to Seeka?RESULT[548][557][559]REASONS OF THE COURTIs the Crown liable to kiwifruit growers and post-harvest operators innegligence for granting an import permit in 2007 for a consignment of kiwifruit pollenfrom China and renewing that permit in 2009, or for not inspecting those goods whenthey arrived in New Zealand?1 That consignment of pollen is said to have introducedthe Psa3 bacteria, a virulent strain of a plant disease that destroys kiwifruit plants —in particular, gold kiwifruit. From 2010 Psa3 swept through kiwifruit orchards inthe Bay of Plenty region. The disease could not be eradicated. Vines were torn out.It took several years for the industry to re-establish itself.Strathboss, the first respondent, is a grower plaintiff representingapproximately 200 growers. Strathboss' own loss is said to be approximately$9.5 million. The group loss may be as much as $450 million. Seeka, the secondrespondent, is a PHO that packs and cools kiwifruit. Its losses are said to be$92.6 million.Proceedings were commenced in 2014. A nine week trial ensued inthe High Court in the second half of 2017. In June 2018 Mallon J issued a judgmentof some 496 pages.2 In it she held the Crown liable to Strathboss, the representativegrower, in relation to the grant of the import permit. She cleared the Crown of liability1 We refer to post-harvest operators as PHOs hereafter.2 Strathboss Kiwifruit Ltd v Attorney-General [2018] NZHC 1559 [High Court judgment].for failure to inspect the pollen, and of liability to Seeka, the PHO. Quantum was leftfor assessment at another trial.The Crown appeals the permit liability finding. Strathboss cross-appeals inrelation to the failure to inspect conclusion. Seeka cross-appeals in relation to thedismissal of its claim.Before moving to discuss matters of general application and the grounds ofappeal and cross-appeal we summarise the conclusions reached in the course ofthe judgment.SUMMARY OF JUDGMENTIn this judgment we allow the Crown's appeal, finding that it has a statutoryimmunity precluding liability for the alleged negligent acts or omissions:(a) First, we conclude that the Crown cannot be directly liable in tort byreason of the Crown Proceedings Act 1950. Its liability, if any, mustbe vicarious. That means the respondents must first identifydirect liability on the part of individual Crown servants or agents beforethe Crown can be vicariously liable in tort.(b) Secondly, we conclude that s 163 of the Biosecurity Act 1993 providesan immunity in respect of the acts or omissions of the relevantpersonnel. That is, the individuals said to have been in breach of a dutyof care to the respondents have an immunity against civil and criminalliability. The Crown takes the benefit of this immunity pursuant tos 6(1) of the Crown Proceedings Act. Inasmuch as no cause of actioncan lie against the individual personnel responsible, nor can one lieagainst the Crown.In case this proceeding should be considered further in another jurisdiction,we go on to analyse duty and breach as if the immunity issue had been answered infavour of the respondents:(a) In relation to the first cause of action, the granting of the importpermits, we would have found that no duty of care is owed.Although there is sufficient proximity, policy factors, in particular therisk of indeterminate liability, mean it would not be fair, just andreasonable to impose a duty of care in these circumstances.(b) Had a duty of care been owed, we would have found that the relevantpersonnel acted in breach of the alleged duty by granting the importpermits without undertaking an effective risk assessment.(c) In relation to the second cause of action, the failure to inspect at theborder, for essentially the same reasons as the first cause of action wewould have found no duty of care to exist. While there was sufficientproximity for a duty of care to exist, policy factors, in particularindeterminacy, mean it would not be fair, just and reasonable to imposea duty of care in the circumstances.(d) Had a duty of care been owed, we would have found that the failure toinspect the June 2009 consignment of kiwifruit pollen fell below thestandard of care expected of skilled and informed personnel in thecircumstances. However, that failure had no causative effect becausethe permit made provision for unmilled pollen.(e) We would have agreed with the Judge's overall finding that the June2009 consignment was, more likely than not, the source of the Psa3incursion.We do not indicate what our findings would have been in respect ofthe respondents' cross-appeals on duty of care (that is, whether the High Court erredin limiting the duty of care to those who have "property rights" in the vines, andwhether the High Court erred in finding that the relevant personnel did not owe a dutyof care in relation to Seeka in its capacity as a PHO). These matters were not fullyadvanced in argument before the High Court Judge, or before us. It is unnecessary forus to analyse what is, in all the circumstances, a hyper-hypothetical liability.GENERAL MATTERSBackgroundIn this section of the judgment we set out background evidence in relation tothe kiwifruit industry, the Psa disease, events prior to the relevant import permitapplications, the permit applications themselves, importation of the pollen,the application of the pollen in the Te Puke area, and the Psa3 outbreak inNew Zealand.We do so comparatively briefly. More detailed analysis of the facts,where needed, will be found later in this judgment.The kiwifruit industryNo challenge was made by the Crown to the Judge's summary of the industryat [43]–[52] of her judgment. We draw upon that summary.New Zealand is the third largest kiwifruit producer in the world after Chinaand Italy. It has been a significant industry here for around 40 years. The kiwifruitthat China produces is largely consumed by its domestic market. Italian production isfocused on Europe. New Zealand production focuses on the export of premium fruit.About 72 per cent of production is green kiwifruit; about 22 per cent is the morelucrative gold variety. In 2015 kiwifruit was New Zealand's second largesthorticultural export after wine, earning export receipts of $1.2 billion.3There are around 2,500 growers in New Zealand, and around 3,200 registeredorchards. The industry is highly land-intensive. While predominantly based inthe Bay of Plenty around Te Puke, the industry stretches from the far north ofthe North Island to the Marlborough/Tasman region in the north of the South Island.The average size of an orchard is a little under four hectares. Some are small lifestyleblocks; others are larger commercial operations. Some are owner-operated; others areoperated under lease.3 Export receipts in 2009 were approximately $1.072 billion.New Zealand has a "single desk" export arrangement for kiwifruit throughZespri International Ltd, a company owned by growers. It has an almost completemonopoly on the marketing of New Zealand kiwifruit outside of New Zealand andAustralia. It accounts for 30 per cent of global kiwifruit sales. It is regulated byKiwifruit New Zealand, established under the Kiwifruit Export Regulations 1999.PHOs such as Seeka contract with suppliers.4 They provide kiwifruit grading,packing and cool store services before the fruit is sent to the docks for shipment tooverseas markets by Zespri. Some PHOs arrange for the picking of fruit on orchardsand for the transport of the fruit to the pack house. They may also provide otherorchard management services to growers. Some PHOs lease orchards. Three yearleases are the most common. The PHO sector is highly competitive.And concentrated: six major PHOs account for about 85 per cent of the sector.Most PHOs are grower-owned. Seeka, a publicly listed company, is not.Biosecurity in New ZealandNew Zealand and Australia have long contended for rather stricter biosecurityarrangements in the context of world trade than many other countries. That reflectsour unusual status as island nations. New Zealand is highly remote. But it is stillprone to wind or sea-borne pest incursions. It is also more reliant on primaryproduction than any other developed country. New Zealand's biosecurity status iscentral to its future economic performance. For example, in 2003 a report preparedby the Reserve Bank of New Zealand and the Treasury estimated that an adversechange in New Zealand's foot and mouth disease status would cost the economyapproximately $10 billion two years after an outbreak.5 The dependence ofthe New Zealand economy on the export of primary production means keepingunwanted pests and diseases out of New Zealand is of paramount importance.But, as a former Director-General of the Ministry of Agriculture and Fisheries(MAF) said in evidence, biosecurity is a complex field of endeavour.6 It is inherently4 Suppliers are registered combinations of growers. Suppliers enter supply agreements with Zespri.5 Aron Gereben, Ian Woolford and Melleny Black The macroeconomic impacts of a foot-and-mouthdisease outbreak: an information paper for Department of the Prime Minister and Cabinet(Reserve Bank of New Zealand and Treasury, 14 February 2003) at 1.6 As to MAF see below at [19].a risk management exercise. New Zealand cannot run a hermetically sealed border.Those charged by statute with biosecurity can only manage risk. They cannoteliminate it. One of the questions in this appeal is the extent to which the commonlaw requires officials with statutory powers to reduce risk.As the former Director-General also stated, the resources required to eliminatebiosecurity risk, and the impact that would have on the flow of goods across the border,would be immense, and perhaps counterproductive. Trade volumes had nearlydoubled since 2003. As the former Director-General put it, "[f]or a nation dependenton trade, like New Zealand, it would place an impossible burden on the border."However, as we will see, there are international obligations which bear on the extentto which biosecurity risk management may be pursued.The Department of Agriculture was formed in 1892. It has since been thesubject of substantial reorganisation. In 1972 parts of the Marine Department wereamalgamated with the Department of Agriculture, to form the Ministry of Agricultureand Fisheries, or MAF. In 1992 parts of MAF were shifted to new Crown ResearchInstitutes — AgResearch, the National Institute of Water and Atmospheric Research(NIWA) and Plant & Food Research. MAF, along with other border agencies, is amember of the Crown's Border Sector Governance Group. At the relevant time MAFwas tasked particularly with whole-of-government leadership of New Zealand'sbiosecurity systems. The Government's overarching biosecurity objective was to keeppotentially harmful organisms from entering and/or establishing in the New Zealandenvironment. At the relevant time, border quarantine functions were performed by abusiness section of MAF, called "MAF QUAL" (Quality Management).Within MAF, there were a number of teams responsible for the importation ofplants. In particular, the Risk Analysis Group (RAG) and the Plant Imports Teamworked closely together. RAG identified the hazards (pests and diseases) associatedwith a particular commodity or pathway; the likelihood of the hazard entering,establishing or spreading in New Zealand; and the likely impact the hazard might haveon plants, environment, economy and human health. The Plants Risk Analysis Teamcarried out this analysis in the context of pests and diseases associated with plants.The Plant Imports Team undertook identification and evaluation of the riskmanagement aspect — imposing measures to mitigate the risk of pest and diseasesidentified by RAG. They would review the risk analysis done by RAG, then considerrisk management measures that could be put in place to reduce the risk to an acceptablelevel to New Zealand.On 1 October 1993 the Biosecurity Act came into force.7 It was an attempt byParliament to bring all biosecurity legislation together in one place. The previousregime was a piecemeal one. The Act is discussed in more detail later in thisjudgment.8In 1995 New Zealand became party to the World Trade OrganisationAgreement on the Application of Sanitary and Phytosanitary Measures.9 It is alsoknown as the SPS Agreement. Article 2.2 of that Agreement provides that membersare to ensure that "any sanitary or phytosanitary measure is applied only to the extentnecessary to protect human, animal or plant life or health, is based on scientificprinciples and is not maintained without sufficient scientific evidence". There is anexception for provisional measures where relevant scientific evidence is consideredinsufficient.10In 1997 the Act was amended to give greater emphasis to the concept ofthe import health standard, or IHS.11 IHSs govern the importation of "risk goods".We discuss this in more detail a little later in this judgment.12The Psa diseasePsa is scientific shorthand for the bacterium Pseudomonas syringae pv.actinidiae. The word actinidiae refers to Actinidia, the kiwifruit genus.13 There are anumber of different strains of Psa (although this fact was not known until at least2010). One strain (now known as Psa1) was identified as having affected Japan in the7 We refer to the Biosecurity Act 1993 as the Act hereafter.8 See below at [49]–[67].9 Agreement on the Application of Sanitary and Phytosanitary Measures 1867 UNTS 493 (openedfor signature 15 April 1994, entered into force 1 January 1995) [SPS Agreement].10 Article 5.7.11 The rationale for the amendment is discussed below at [157].12 See below at [53]–[66] and [156]–[158].13 There are several species of kiwifruit including, relevant to this appeal, Actinidia deliciosa(green kiwifruit), Actinidia chinensis (gold kiwifruit) and Actinidia arguta.late 1980s and in Italy in 1992. A second strain, now known as Psa2, was identifiedas having affected Korea in 1997.Psa3 is the strain that devastated the New Zealand kiwifruit industry. Psa3 wasidentified as having affected Italy in 2008. It has since been found in New Zealand,Chile, China, Japan and Korea.Psa3 may be further divided into pandemic and divergent groups. Psa3 inNew Zealand, Europe and Chile is of the pandemic variety, and is virulent. It causesa browning and wilting of buds and flowers, the collapse of fruit and the ultimate deathof plants, as the plant responds to kill affected cells to contain the infection.In 1999 MAF had recognised that Psa was a pest of potential concern. At thatstage it had little information as to the geographical distribution of Psa, bar it havingbeen recorded in Japan and Italy. The long-distance transmission of the Psa bacteriumwas noted as occurring through infected plant material — but "less likely on fresh fruitand unlikely on seed". Pollen was not specifically addressed at that stage.A pest data sheet prepared in August 2003 was somewhat more detailed, againnoting the presence of Psa in Japan and Italy (and its absence from New Zealand).As to transmission, it noted that Psa "is present in infected plant material and,therefore, is usually introduced into new regions in nursery material".The transmission by orchard equipment, such as pruning implements, was also noted.The document further recorded that Psa "has the potential to cause severe damage todeveloped kiwifruit plants and to reduce yields".Importation of pollen into New Zealand was unusual. A senior member ofMAF's Plant Imports Team could recall only two or three such import permitapplications. These permits were for breeding rather than direct pollination in thefield. The approach MAF took to pollen imports until 2007 included a condition thatthe pollen be used to pollinate a mother plant in a contained environment (such asa post-entry quarantine, or PEQ, facility) and then either the seed or tissue of the plantbe tested after a period of observation. For example, permits were granted for gentianand clivia pollen in 2004/2005 on the basis they be used in a PEQ facility and isolatedfor three months. A longer six month PEQ isolation period was required for a proposedimport of kiwifruit pollen (for artificial pollination) by the Horticulture and FoodResearch Institute of New Zealand, HortResearch, in late 2005. The longerPEQ period for kiwifruit pollen compared to gentian and clivia pollen reflected thefact that kiwifruit plants are an important horticultural crop with known pests anddiseases of concern rather than being an ornamental plant (such as gentian).In May 2004 a schedule for Actinidia in the relevant IHS, IHS 155.02.06(Nursery Stock),14 was amended after a process of review and consultation.Both Zespri and HortResearch had made submissions. The schedule set outrequirements for entry conditions for kiwifruit cuttings and tissue culture, includingdocumentary requirements for a phytosanitary certificate and a requirement that suchnursery stock be imported into PEQ at a level three facility for a minimum period ofsix months.15 There was no provision made for kiwifruit nursery stock of any otherkind in the schedule.In July 2006 MAF initiated a review of scientific literature on plant pests anddiseases associated with pollen. The review was intended to assist decision-makers inassessing the risks of importing new germplasm in the form of pollen. The reviewwas undertaken by members of MAF's Plant and Health Environment Laboratory,or PHEL. It is known as the "PHEL Review". In its final form, the review stated that"there are no known bacteria, mollicutes or invertebrates that use pollen as a form oftransmission". Specifically, in relation to kiwifruit, it stated:There are no recorded pests or pathogens that are pollen transmitted inActinidia species.Kiwi Pollen's permit applicationsOn 23 November 2006 a small company based in the Te Puke area,Kiwi Pollen Ltd, contacted MAF's Plant Imports Team enquiring about importingfrozen kiwifruit pollen from Italy and China. The Plant Imports Team sought advice14 Kiwifruit plant material and fruit were covered by two other IHSs: IHS 155.02 (Importation andClearance of Fresh Fruit and Vegetables into New Zealand); and IHS 155.02.05 (Seed for Sowing).However, IHS 155.02.06 (Nursery Stock), referred to hereafter as the Nursery Stock IHS, mattersmost for present purposes.15 See below at [59].from the team manager at PHEL, who provided a link to the PHEL Review referred toat [31] above. He noted, in an email, "[a]s you will see there are no pests or diseasesknown to be associated with pollen of Actinidia spp." That advice has been the subjectof sustained criticism by the respondents and expert witnesses called by them.In due course the Plant Imports Team advised Kiwi Pollen that its applicationwould be granted on the condition that hand-collected, unopened male flower buds ofkiwifruit could be imported. MAF would require consignments to be accompanied bya government-issued phytosanitary certificate that the male flower buds werehand collected and unopened. These conditions would mitigate the risk ofcontamination from insects or weather. The respondents' case was that this created adirect pathway for pests between pollen and orchard.A permit to import would also be required. However, unlike the earlierproposed import of kiwifruit pollen by HortResearch, there was no reference on thisoccasion to a requirement the pollen be germinated in a PEQ environment.16An application to import was submitted by Kiwi Pollen in March 2007.It identified a particular exporter from "China or Japan" (being Bexley Inc), a countryof origin (being China), and the purpose of importation (being "commercial kiwifruitpollination"). The part of the form providing for details of goods required to go to atransitional (quarantine) facility was left blank.On 16 April 2007 a permit to import nursery stock was issued to Kiwi Pollenin essentially those terms. Like prior permits for pollen, the permit form stated:Standard155.02.06, Importation of Nursery StockHowever, unlike the permits earlier referred to,17 there was no special conditionproviding for any form of PEQ.16 See above at [29].17 See above at [29].In November 2008 an import permit was issued to Kiwi Pollen to importkiwifruit pollen from Chile. Kiwi Pollen received two shipments of kiwifruit pollenfrom that country. It is unclear from the evidence what use was made of this pollen.In April 2009 the Nursery Stock IHS was amended. There were however nomaterial changes to the Actinidia section.On 29 April 2009 Kiwi Pollen applied for a further permit to import kiwifruitpollen from China. This was stated to be a "Renewal" of an existing permit. The sameexporter and country of origin as in 2007 were stated. The purpose of importation wasstated to be "pollination of kiwifruit". Again, the part of the form relating to use of atransitional facility was left blank.The following day a permit to import frozen kiwifruit pollen was issued inessentially the same form as the 2007 permit.Importation of the pollenIn accordance with the 2009 import permit, Kiwi Pollen imported twoshipments of pollen from China. The first arrived in New Zealand on 24 June 2009.18The Judge found that the Nursery Stock IHS required inspection of the June2009 consignment but that was unlikely to have happened. Moreover, there werediscrepancies between the phytosanitary certificate and the 2009 permit that shouldhave led to the issuing of a non-compliance report, or NCR, which did not occur.The June 2009 consignment should have been put on hold pending further advice fromthe Plant Imports Team. That did not occur and instead the June 2009 consignmentwas cleared and delivered to Kiwi Pollen in Te Puke soon after 30 June 2009.The managing director of Kiwi Pollen gave evidence that when the packagewas opened she found anthers (or "rough pollen") rather than the fine powdery pollenshe expected to have been sent. She placed the June 2009 consignment in a freezer.At a later point she processed the frozen anthers using a cyclone machine in the pollen18 We refer to this shipment as the June 2009 consignment hereafter.room at Kiwi Pollen's premises. The resulting pollen was quite small in volume —possibly one to two cms at the bottom of a 250 g jar. Although she gave evidence thatthe pollen was low quality, and that she had probably thrown it out, the Judge reacheda different conclusion. She concluded that it was highly likely that the pollen fromthe June 2009 consignment was kept by Kiwi Pollen.19The Psa3 outbreak in New ZealandIn October 2010 leaf speckling became apparent on the vine leaves at twoorchards, Olympos and Kairanga. One of the shareholders of Kiwi Pollen owned andmanaged Kairanga, which was located across the road from Olympos. Both orchardsgrew the Hort16A gold kiwifruit variety. On 28 October 2010, Olympos' managertook some of the leaves to HortResearch in Te Puke. They were sent on to Plant &Food Research for testing. On 5 November 2010 the presence of Psa3 bacteria in theleaves of Olympos orchard was confirmed. Three days later the same bacteria wasconfirmed present at Kairanga orchard.MAF imposed biosecurity restrictions on orchards believed to be or suspectedto be harbouring the Psa3 bacteria. An intense hygiene regime was also imposed.People entering the orchards were required to wear protective disposable clothing,and wash down on departure. An "aggressive management" programme wasdeveloped to eradicate or contain the disease.Vine-cutting began in January 2011. Fruit was mulched, and vines were cutdown, leaving only stumps. Within a month it was apparent the disease could not becontained. By August it had spread into the wider Bay of Plenty region, and later inthat year into Northland, many hundreds of kilometres away.A compensation scheme was developed with government, the details of whichwere set out in the High Court judgment.20 Over $17 million was paid to growers whohad cut out vines. Once it became apparent the disease could not be contained,19 High Court judgment, above n 2, at [1058]. The evidence suggested that the waste from thecyclone machine was probably disposed of as industrial compost.20 At [114]–[126].compensation payments were discontinued. The Judge describes in some detail thestress this outbreak caused individual growers.21The Judge found that Kairanga and Olympos were the epicentre of theoutbreak. But she could not identify the means by which the bacteria had reachedthe orchards.22Biosecurity and its statutory frameworkWe will not repeat the summary at [16]–[20] above. Nor do we need to repeatthe Judge's helpful summary of the importance to New Zealand of biosecurity,its funding, and the structure of MAF at the relevant time.23 These aspects ofher judgment are not contested here. The Judge summarised the statutory frameworkfor biosecurity at [163]–[186] of her judgment. We draw upon that summary here.24As the Judge noted, the Act is the statute under which MAF grantedKiwi Pollen permits to import pollen, cleared the June 2009 consignment of pollen atthe border and responded to the Psa3 outbreak.25 The title to the Act provides that itis:An Act to restate and reform the law relating to the exclusion, eradication, andeffective management of pests and unwanted organismsThe Act binds the Crown.26 The responsible Minister has responsibility forproviding for the co-ordinated implementation of the Act, recording and co-ordinatingreports of suspected new organisms, and managing appropriate responses to suchreports.27Part 3 of the Act provides for "the effective management of risks associatedwith the importation of risk goods".28 "Risk goods" are defined:2921 At [134]–[142].22 At [1029] and [1114].23 At [148]–[153] and [187]–[198].24 We refer throughout to versions of the legislation current at the relevant times.25 High Court judgment, above n 2, at [163].26 Biosecurity Act, s 5 (except as provided for in s 87, which is not relevant here).27 Section 8(1).28 Section 16.29 Section 2.Risk goods means any organism, organic material, or other thing, orsubstance, that (by reason of its nature, origin, or other relevant factors) it isreasonable to suspect constitutes, harbours, or contains an organism thatmay—(a) Cause unwanted harm to natural and physical resources or humanhealth in New Zealand; or(b) Interfere with the diagnosis, management, or treatment, inNew Zealand, of pests or unwanted organisms:Part 3 then sets out the process for importing risk goods. Section 22(1) ofthe Act requires that IHSs must specify requirements to be met "for the effectivemanagement of risks associated with the importation of risk goods before those goodsmay be imported, moved from a biosecurity control area or a transitional facility,or given a biosecurity clearance". This includes goods "the importation of whichinvolves, or might involve, an incidentally imported new organism".30At the time of judgment there were 339 IHSs. They ranged in length from fiveto over 300 pages.31 The risk analysis process for a new IHS could take weeks to yearsdepending on the number of pests involved and the amount of scientific informationavailable. The Judge noted, also, that the demand for IHSs outstripped (and alwayshad outstripped) supply and that there were hundreds of outstanding requests for newIHSs and dozens of requests to amend or review current IHSs.32All goods must receive biosecurity clearance before entering New Zealand.33Uncleared goods must proceed to a transitional facility or a biosecurity control area.34Clearance is granted by an "inspector" appointed by a chief technical officer.35To grant clearance, the inspector must be satisfied either that the goods are not riskgoods or that the cumulative requirements of s 27(a)–(e) are all met.36 One of these isthat there are no discrepancies in the documentation accompanying the goods30 Section 22(1A), inserted with effect from 9 April 2008.31 High Court judgment, above n 2, at [199].32 At [200].33 Biosecurity Act, s 25.34 Section 25(1).35 Sections 26 and 103(1)(a).36 Provided that there are no restrictions under s 28, which is not relevant here.(or between that documentation and those goods) suggesting it may be unwise to relyon that documentation.37Plants and plant products fall within the definition of "risk goods" under s 2 ofthe Act. There was no dispute before us that the June 2009 consignment constitutedrisk goods. As a consequence, its importation was governed by an IHS, the NurseryStock IHS.The Nursery Stock IHS set out "the import specifications and entry conditionsfor nursery stock imported into New Zealand". It defined nursery stock:Whole plants or parts of plants imported for growing purposes, e.g. cuttings,scions, budwoods, marcots, off-shoots, root divisions, bulbs, corms, tubers,rhizomes, and plants in vitro.While pollen is not included in the specific examples, the Nursery Stock IHS plainlyapplies to pollen. We consider that pollen was intended to be embraced by the phrase"parts of plants", and further pollen was then expressly addressed as nursery stock incl 2.2.3 of the Nursery Stock IHS.38Imported nursery stock was required to meet "basic conditions" (applicable tonursery stock of any species). They required the obtaining of a permit, labelling,cleanliness and a phytosanitary certificate, as well as other requirements applying tosome specified nursery stock. "All nursery stock" was also to undergo a period ofPEQ in order to check for the presence of regulated pests and/or diseases.39This suggests all pollen imports required PEQ under the Nursery Stock IHS.40Certain imported nursery stock was also required to meet "special conditions".These were set out in the species-specific schedules of special entry conditions inthe Nursery Stock IHS. There was an Actinidia schedule applicable to kiwifruit.41Dormant cuttings and plants in tissue culture were stated to be approved for entry into37 Section 27(b).38 See below at [61].39 Nursery Stock IHS, cl 2.2.1.12. The quarantine period was to be a minimum of three monthsunless otherwise stated in the schedule of special entry conditions.40 Clause 2.2.1.12 contained some exceptions to PEQ but they do not apply here.41 The schedule was amended in 2004 after a consultation process in which submissions were madeby HortResearch and Zespri.New Zealand. A phytosanitary certificate and import permit were required.The certificate was required to certify that the cuttings or tissue culture stock had beeninspected and found to be free of any visually detectable regulated pests, and (in thecase of cuttings only) treated for regulated insects and mites. On entry, the cuttings ortissue culture stock was required to be kept in a level three quarantine facility, grownfor a minimum of six months and then inspected, treated or tested for regulated pests.The regulated pest list for Actinidia included Psa."Quarantine" is defined as meaning the "confinement of organisms or organicmaterial that may be harbouring pests or unwanted organisms".42The Director-General may designate any place to be a quarantine area.43The Director-General may also approve standards for building, maintaining, oroperating transitional facilities.44 A transitional facility is a place approved pursuantto s 39 of the Act for the purpose of inspection, storage, treatment, quarantine, holding,or destruction of uncleared goods.45 The Director-General may approve a person tobe the operator of the transitional facility.46What, then, of kiwifruit pollen? The only provision that referred specificallyto pollen was cl 2.2.3 which stated, somewhat laconically:2.2.3 IMPORTATION OF POLLENAn import permit must be obtained from MAF [Biosecurity New Zealand] prior toimport.MAF personnel appear to have held the view that cl 2.2.3 was the onlyNursery Stock IHS provision governing pollen. Hence they considered that they hadthe power to include (or not) PEQ conditions in import permits.47 No difficulties arosewith reference to the few pollen importations prior to 2007 because MAF personnel42 Biosecurity Act, s 2(1).43 Section 41(1).44 Section 39(1).45 Section 2(1).46 Section 40(3).47 See above at [29].adopted a policy of requiring the inclusion of PEQ special conditions. This wasdescribed by one MAF official in November 2005 in this way:48I realise that "our current policy" is to direct everything to a PEQ but thispolicy is not written down and is therefore, I would think, more easily altered?However following the PHEL Review that informal policy was revised with theconsequence that a PEQ special condition was omitted in some import permits.The Judge took the view that cl 2.2.3 left import conditions for pollen to be setwhen an import permit application was received.49 Implicit in that view is that PEQwas not an IHS requirement for pollen.50 We do not agree, because we consider thatthe Nursery Stock IHS basic conditions discussed above were applicable to all nurserystock, including pollen. An import permit could not purport to exclude or reduce thatminimum PEQ requirement.Consequently the mandatory PEQ requirement applied to importationsauthorised by the 2007 and 2009 permits. The omission of any special conditionrequiring PEQ did not, and could not, change that, notwithstanding MAF's belief andintention that the omission of a special condition meant that PEQ was not required.However, despite the reference in the permit to the Nursery Stock IHS, within MAFthe absence of a special condition for PEQ signalled (erroneously) to inspectors thatPEQ was not a requirement.51We return now to the statutory narrative. There are two further subjectsrequiring attention at this point.First, any alteration to an IHS may only occur in accordance with theamendment process set out in s 22 of the Act, which mirrors the process for issuing48 In the context of a proposed clivia pollen importation.49 High Court judgment, above n 2, at [211].50 The Crown did not contend otherwise. The respondents were equivocal.51 Indeed in October 2009 cl 2.2.3 of the Nursery Stock IHS was amended to clarify that therequirements for each pollen consignment would be specified on the import permit and assessedon a case-by-case basis. This did not apply to the import in question but illustrates both that therewas an understanding in the Plant Imports Team that only cl 2.2.3 of the Nursery Stock IHS appliedto pollen and that there was confusion among other MAF personnel (including inspectors) as tohow the Nursery Stock IHS and import permits interacted.an IHS. The Director-General may amend an IHS on the recommendation of a chieftechnical officer.52 In so doing, the chief technical officer must follow the process setout in s 22(5)–(8).53 Hence if cl 2.2.1.12 was not to apply to pollen, that could onlybe achieved by amending the Nursery Stock IHS.Secondly, there are a number of important miscellaneous provisions in pt 9 ofthe Act. Section 162A provides a compensation regime, where the exercise ofstatutory powers for the management or eradication of any organism causes loss.54Section 163 provides an immunity for inspectors and others when exercisingfunctions, powers or duties conferred by or under the Act, unless they have acted, oromitted to act, in bad faith or without reasonable cause.55 And s 164 provides a distinctcivil immunity for the Crown when it has goods in its custody.56Issues on appealThe parties have agreed issues to be determined on appeal and cross-appeal.The definition of issues for determination is invariably a matter for the court to decide;judicial autonomy is not sacrificed at the altar of party-to-party agreement. It alwaysremains for the court to decide and define the issues it considers essential to determinethe claim. However we are satisfied the issues defined by the parties here are theappropriate ones for this Court to answer. That said, we take the view they should beanswered in a different order to that proposed by the parties. We do so because weconsider it necessary to identify who may be liable, before identifying whether suchpersons owe a duty of care to the respondents.The following, therefore, are the issues we will address:Issue 1: Direct liability:(a) Can the Crown be directly liable (as opposed to vicariously liable) in tort?52 Biosecurity Act, s 22(1).53 See below at [158].54 See below at [209]–[214] for further discussion of this provision.55 See below at [112]–[141] for further discussion of this provision.56 See below at [140] for further discussion of this provision.(b) What is the impact of any such direct liability on the Crown's liability?Issue 2: Immunity:(a) Did the High Court err in holding that s 163 of the Biosecurity Act 1993 didnot apply to the acts or omissions of MAF personnel at the pre-border stage?(b) Did the High Court err in holding that s 163 of the Biosecurity Act 1993applied to the acts or omissions of MAF personnel at the border clearancestage?(c) Did the High Court err in holding that the Crown cannot take the benefit ofthe immunity under s 163 (to the extent it applied to the acts or omissions ofany MAF personnel) pursuant to s 6 of the Crown Proceedings Act 1950?Issue 3: First cause of action — Pre-border negligence:(a) Did the High Court err in finding that MAF personnel owe a duty of care toStrathboss and some members of the Strathboss class to take reasonable skilland care in their actions or omissions prior to the New Zealand Psa3 incursionto avoid physical damage to property, and to take care to avoid lossconsequential on that damage to property?(b) Did the High Court err in holding that MAF personnel breached their duty ofcare by the following acts or omissions at the pre-border stage:(i) the statements made by one of the authors of the PHEL Review toMAF's Plant Imports Team;(ii) deciding to allow the importation of kiwifruit pollen by the issue ofimport permits to Kiwi Pollen from April 2007;(iii) relying on the PHEL Report in making that decision;(iv) failing to undertake a proper risk analysis before making thatdecision; and(v) failing to consult with the kiwifruit industry or other relevant agenciesbefore making that decision?(c) Did the High Court err in holding that the acts or omissions at the pre-borderstage caused the clearance and release of the June 2009 consignment importedby Kiwi Pollen?(d) Did the High Court err in holding that MAF personnel did not breach theirduty of care by the following acts or omissions at the pre-border stage and/orthat any breaches did not cause the clearance and release of the June 2009consignment:(i) omitting a condition from the import permits issued to Kiwi Pollenfrom April 2007 requiring microscopic inspection by Chineseofficials prior to export;(ii) changing the wording of the import permits issued to Kiwi Pollenfrom November 2008 to state that the "pollen may be milled prior toimport"; and(iii) failing to consider the risk posed by kiwifruit pollen importsfollowing the Italian outbreak of Psa3?Issue 4: Second cause of action — Negligence at the border:(a) Did the High Court err in holding that MAF personnel owed a duty of care toStrathboss and some members of the Strathboss class in respect of theclearance of the June 2009 consignment?(b) Did the High Court err in holding that MAF personnel did not breach theirduty of care by the following acts or omissions at the border clearance stageand/or that any breaches did not cause the clearance and release ofthe June 2009 consignment:(i) failing to inspect the June 2009 consignment; and(ii) failing to identify the discrepancies in the exporter and the speciesdetails between the phytosanitary certificate and the import permit,and to issue a non-compliance report?Issue 5: Causation:(a) Did the High Court err in holding that Psa3 entered New Zealand withthe June 2009 consignment?Issue 6: Respondents' cross-appeals on duty of care:(a) Did the High Court err in finding that those within the Strathboss class wouldhave to show they had property rights in the vines and crops, or that theirinterest in the vines and crops was sufficiently direct or closely associatedwith those rights that they should be treated as though they have suffered lossto their property?(b) Did the High Court err in finding that MAF personnel did not owe a duty ofcare to Seeka, in its capacity as a PHO, to take reasonable skill and care intheir actions or omissions prior to the New Zealand Psa3 incursion to avoideconomic loss to Seeka?ISSUE 1: DIRECT LIABILITYIssue 1(a): Can the Crown be directly liable (as opposed to vicariously liable) intort?The basis of Crown liability in tort falls to be determined by reference tothe Crown Proceedings Act. The relevant provisions of that Act at the relevant timewere as follows:3 Claims enforceable by or against the Crown under this Act(2) Subject to the provisions of this Act and any other Act, any person(whether a subject of Her Majesty or not) may enforce as of right, bycivil proceedings taken against the Crown for that purpose inaccordance with the provisions of this Act, any claim or demandagainst the Crown in respect of any of the following causes of action:(b) Any wrong or injury for which the Crown is liable in tort underthis Act or under any other Act which is binding on the Crown:6 Liability of the Crown in tort(1) Subject to the provisions of this Act and any other Act, the Crownshall be subject to all those liabilities in tort to which, if it were aprivate person of full age and capacity, it would be subject—(a) In respect of torts committed by its servants or agents;Provided that no proceedings shall lie against the Crown by virtue ofparagraph (a) of this subsection in respect of any act or omission of aservant or agent of the Crown unless the act or omission would apartfrom the provisions of this Act have given rise to a cause of action intort against that servant or agent or his estate.The objection raised by the Crown is that, by statute, it may be sued innegligence in these circumstances only vicariously, and not directly. It is said that byfailing to identify a particular individual owing a duty of care to the respondents,the judgment has "pieced together" a direct or institutional liability of the Crown basedon acts or omissions of its servants not established to be torts in or of themselves.Let us see, then, what the pleadings allege.At [121] of the amended statement of claim, in respect of the first cause ofaction (relating to pre-border issues), the respondents allege:At all material times, MAF and officers, agents and/or employees of MAFowed the plaintiffs a duty to exercise reasonable care and skill whenundertaking their functions and responsibilities in relation to biosecurity inNew Zealand including their functions under [the Act] or otherwise.The duty is then particularised.Next, [124] of the claim alleges that "MAF and officers, agents and/oremployees of MAF failed to exercise reasonable care and skill" in performing thealleged duties. Further particulars are offered. And at [125], it is alleged that, as aresult of the breaches of duty pleaded in [124], Psa3 was introduced into New Zealand,resulting in the loss alleged. There is then a further pleading, at [126]:The breaches of duty by officers, agents and/or employees of MAF pleaded inparagraph 124 above were acts or omissions for which the defendant(on behalf of the Crown) is also vicariously liable pursuant to section 6 ofthe Crown Proceedings Act 1950.(emphasis added)A similar form of pleading is advanced in relation to the second cause of actionrelating to MAF's border procedures.So the pleading is a hybrid, alleging duty and breach by both the Crown andits employees, and asserting both direct and vicarious liability.Judgment appealedThe Judge analysed the case as one of vicarious liability, albeit, as we will see,on a somewhat hybrid or "collective" basis. For instance, in respect of duty, the Judgesaid:[497] In all the circumstances it is just, fair and reasonable that MAF hasa duty of care to those within the class represented by Strathboss who havesuffered loss to their property. The wrong to them should be remedied.(emphasis added)On the other hand, dealing with breach, the judgment concludes that"[t]he plaintiffs have established MAF personnel breached a duty of care to them insome of the ways alleged."57 The analysis was not undertaken in respect of anyparticular MAF employee.In respect of direct liability, the Judge said:[1376] The submissions for the parties also addressed whether the Crown hasdirect liability for MAF's systemic or collective negligence. As I apprehendit, this was very much a back-up submission for the plaintiffs.The submissions were somewhat light and the subject is a difficult one.The suggestion that there might be direct liability against the Crown wasraised in Couch (No 2) but not addressed. Had it been necessary to decide this57 High Court judgment, above n 2, at [843].issue it is likely I would have needed further submissions on the point.In these circumstances I consider it appropriate not to venture any views onthe matter.In the absence of a formal finding of direct liability, we may proceed relativelybriskly through the first issue. It arises because the respondents seek, alternatively, tocontend that the Crown is liable directly in this case.SubmissionsThe Crown's complaint is that the first major error of the judgment is a failureto identify a negligent individual. It is said that the references to MAF generally inthe judgment, and the absence of any consideration of what duty particular individualsmay have owed and to whom, reflects a misunderstanding of how Crown liabilityworks under the Crown Proceedings Act. Mr Hodder QC submits that the Crownmight be sued in tort vicariously only, and cannot be sued directly at all.58 It isorthodox that the Crown's liability in tort is vicarious only. That was the position atcommon law, and the Crown Proceedings Act retained, rather than reformed,that principle. In consequence the respondents and the judgment needed to identifyan individual who was negligent, that is who owed a duty of care to the respondentsand breached that duty so as to cause loss. Mr Hodder submits that the judgment hadessentially pieced together a direct or institutional liability, while at the same time, aswe have seen,59 denying that that was the approach being taken at all.For the respondents, Mr Galbraith QC contends that in R v Williams the JudicialCommittee of the Privy Council recognised a direct liability against the Crown inNew Zealand.60 He submits, further, that in introducing the Bill which becamethe Crown Proceedings Act,61 there was nothing to indicate that New Zealand citizenswere to be deprived of legal rights long enjoyed. The Act, therefore, did not intend toabrogate the existing right recognised in R v Williams enabling the Crown to be heldliable directly in tort. Section 3(2) of the Crown Proceedings Act recognises directliability against the Crown. Section 6(1)(a), on which the Crown relies, is58 Subject to the three exceptions under s 6(1)(b)–(c) and (2) of the Crown Proceedings Act 1950,which are inapplicable here.59 See above at [79].60 R v Williams (1884) NZPCC 118.61 Crown Proceedings Bill 1950 (67-1).(on Mr Galbraith's argument) directed solely to the Crown's vicarious liability in tort.Mr Galbraith submits, further, that this approach is supported by s 27(3) ofthe New Zealand Bill of Rights Act 1990. That provides:Every person has the right to bring civil proceedings against, and to defendcivil proceedings brought by, the Crown, and to have those proceedings heard,according to law, in the same way as civil proceedings between individuals.Accordingly, the default position is that citizens have a right to bring civil proceedingsagainst the Crown, and to have those proceedings heard and determined according tolaw in the same way as civil proceedings brought against individuals. Section 27(3)is purposed on the basis of the removal of any procedural or jurisdictional privilegesof the Crown.62AnalysisAt common law, the Crown was not liable directly in tort. There were a numberof reasons for that principle developing, which occurred in about the 13th century.One was the principle that "the King can do no wrong". It followed no action for tortwould lie against the Crown. The principle of respondeat superior was inapplicableto the Crown.63 A further underpinning principle was that the King could not be suedin his own courts, as a matter of procedure. On the other hand, the King's servant oragent could be sued personally, for his or her own torts.64These rules were relaxed in about the 14th century by the petition of rightprocedure. The King was not above the law, and would respond to a proper case, uponinquiry by commissioners.65 That did not, however, assist in the case of tort, where nosuch petition lay.66 In the case of tort, the aggrieved subject had to sue the individual62 Referring to Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [87].63 Thomas Barnes "The Crown Proceedings Act, 1947" (1948) 26 Can Bar Rev 387 at 387–388.64 Peter W Hogg, Patrick J Monahan and Wade K Knight Liability of the Crown (4th ed, Carswell,Toronto, 2011) at 4–5; Stuart Anderson "'Grave injustice', 'despotic privilege': the insecurefoundations of crown liability for torts in New Zealand" (2009) 12 Otago LR 1 at 5; andWS Holdsworth "The History of Remedies Against the Crown" (1922) 38 LQR 141 at 142–145.Professor Peter Hogg CC, QC, FRSC, the New Zealander who became Canada's leadingconstitutional scholar, died on 4 February 2020.65 Hogg, Monahan and Knight, above n 64, at 5.66 See, for example, Glanville L Williams Crown Proceedings (Stevens & Sons, London, 1948) at16, citing Canterbury v Attorney-General (1842) 1 Ph 306, 41 ER 648 (Ch). A petition of rightmight however lie against the Crown for conversion of property, but that appears to be the onlyexcepted tort.tortfeasor. In practice the Crown would stand behind its servant and pay damages.It might provide assistance, but not invariably so. One particular difficulty was theinability to obtain discovery against the Crown.67 The intending plaintiff might beunable to identify which Crown servant to sue. In practice however the Crown wouldassist (without formal discovery) and would submit to arbitration or compensation.68Alternatively, the Crown might dispute whether the tortfeasor was in fact its servant,whether he or she was acting in the course of employment, or whether a duty of carewas owed by that individual to the intended plaintiff.69The latter point was of particular importance in relation to occupiers' liability,where no servant of the Crown could be said to owe a duty of care in respect ofthe Crown's property. Again, to an extent, the Crown was prepared to help. It mightnominate a servant against whom proceedings could be taken, as "nominal defendant",and agree not to raise the point that this servant owed no duty of care.70But in Adams v Naylor, the House of Lords condemned the practice.71There, negligence on the part of the British Army resulted in a minefield no longerbeing adequately signposted. Two boys were injured, one fatally. Captain Naylor ofthe Royal Engineers was nominated by the Treasury Solicitor as defendant.Despite that fact, and the fact the Crown did not wish to contest duty on the part ofthe defendant, the House of Lords held it was not open to the parties to have the matterdealt with by agreement on the false footing that the nominal defendant wasthe duty-owing occupier.72 Consequently, no compensation was payable.Something had to be done about that entirely regrettable result.In New Zealand amelioration, and then constriction, came by statutory means.And it came long before Adams v Naylor. The process was traced byProfessor Anderson in his 2008 F W Guest Memorial Lecture.73 The Crown Redress67 Joseph M Jacob "The Debates Behind An Act: Crown Proceedings Reform, 1920–1947" [1992]PL 452 at 455.68 Williams, above n 66, at 17.69 At 17–18.70 At 18.71 Adams v Naylor [1946] AC 543 (HL).72 See, for example, at 555 per Lord Uthwatt.73 Anderson, above n 64, at 12–18.Act 1877 enabled direct liability in tort for acts which the Government "would beresponsible if they were private subjects of Her Majesty in New Zealand".74 This wasfollowed by the Crown Suits Act 1881, intended to simply consolidate the law but"written with much more caution" than the 1877 Act, omitting the final general wordsof the 1877 Act referred to above.75 Thus arose the decision on which the respondentsrely, R v Williams.76 A suit was brought directly against the Crown for negligence infailing to remove a known snag (a submerged tree stump) beneath the coaling wharfat Westport. The snag had caused the respondent's collier to sink. The advice ofthe Privy Council contains no doubt as to jurisdiction on the basis of direct liability;the Crown's liability was sustained on appeal. There is no suggestion that suchliability existed at common law apart from the 1881 Act.77Further legislation was passed in New Zealand, including the Crown Suits Act1908. A 1910 amendment then provided that the Crown assumed liability for"[a]ny wrong or injury which is independent of contract and for which an action fordamages would lie if the defendant was a subject of His Majesty".78 There were someexceptions provided for, and some immunities.79That, then, was the position in New Zealand before the Crown Proceedings Actwas enacted in 1950. To understand the rationale for that legislation, one has to returnto England. There the legal position was as described earlier, save that statute hadgradually resulted in some local government entities becoming liable on the basis ofvicarious liability. But the Crown itself remained immune from liability in tort, subjectto the rather perverse nominal defendant procedure.80How the Crown Proceedings Act 1947 (UK) came to be enacted is the subjectof a remarkable article by Joseph Jacob of the London School of Economics.81By painstaking research at the Public Records Office, Jacob has traced the reform of74 Crown Redress Act 1877, s 3.75 Anderson, above n 64, at 14–15.76 R v Williams, above n 60.77 At 129–130.78 Crown Suits Amendment Act 1910, s 3(c).79 See ss 4 and 8–9; and Anderson, above n 64, at 16.80 Anderson, above n 64, at 17.81 Jacob, above n 67. We refer to the Crown Proceedings Act 1947 (UK) 10 & 11 Geo VI c 44 asthe English Act hereafter.the English common law through to the English Act. The impetus came from tradinginterests (in particular Liverpool shipping interests) now interacting more regularlywith the Crown:82[T]he world wars in particular saw large increases in the state's tradingactivities, and "lawyers and business men urged that the State should beplaced in the same position as the subject in the courts of law".A committee was formed in the early 1920s to consider the technicalimplications of drafting legislation regarding Crown liability under the chairmanshipof Sir Gordon Hewart, then Attorney-General and later Lord Chief Justice.83It reported in 1927, producing what was later described by Lord Jowitt as "structurally,not a very satisfactory Bill".84 The perceived cost of greater Crown liability stifledreform at a time of economic stringency, and then nothing very much occurred untilafter the Second World War when Adams v Naylor, in which the families ofthe children killed and injured on the inadequately signposted minefield went withoutremedy, caused public outrage.85 The new Lord Chancellor, Jowitt, grasped thenettle.86What is entirely clear is that the English Act places the Crown liability for torton a primarily vicarious (rather than direct) basis. This was a compromise, the productof a need to placate the service departments (particularly the Admiralty) as well as toplacate public opinion in light of the profoundly regrettable result in Adams v Naylor.In consequence, the English Act provided, at s 2:(1) Subject to the provisions of this Act, the Crown shall be subject to allthose liabilities in tort to which, if it were a private person of full ageand capacity, it would be subject:—(a) in respect of torts committed by its servants or agents;Provided that no proceedings shall lie against the Crown by virtue ofparagraph (a) of this subsection in respect of any act or omission of aservant or agent of the Crown unless the act or omission would apart82 At 453 and 455, citing Barnes, above n 63, at 389. Sir Thomas Barnes was the Treasury Solicitorat the time the English Act was enacted and closely involved in the reforms.83 At 459.84 (4 March 1947) 146 GBPD HL 65.85 See above at [86]–[87].86 Jacob, above n 67, at 477–480.from the provisions of this Act have given rise to a cause of action intort against that servant or agent or his estate.As Professor Anderson observes:87The resulting statute, Crown Proceedings Act 1947 [(UK)], made the [C]rownliable for torts for the first [time] in English legal history, but (exceptionsaside) it was only vicarious liability — because that is what the reformers ofthe 1920s had thought achievable, wrongly as it turned out. And it is thatsection that was copied into the New Zealand Crown Proceedings Act of 1950,almost word for word.The New Zealand Crown Proceedings Act was an entirely advertent imitationof the English Act.88 Section 6 of our Act is almost word for word the same as s 2 ofthe English Act.89 The drafters were well aware that the New Zealand and Englishpositions began at different starting points. This is what the explanatory noteobserves:90Clause 6 defines the circumstance in which the Crown is to be liable in tort.It follows section 2 of the United Kingdom Act, but lacks the significance ofthat section which made the Crown in the United Kingdom liable in tort forthe first time. The Crown in New Zealand has been liable in tort since theenactment of sections 3(c) and 4 of the Crown Suits Amendment Act, 1910.In fact, as we have seen, the Crown's direct liability pre-dated 1910, goingback at least to 1877. The former Labour Attorney-General, the Hon H G R Mason QCMP, referred to that fact in the third reading debate.91 But the parliamentary debatefocused on procedural advantages, in particular removal of the rule that the Crowncould not be impleaded with other defendants. Of a shift from direct to vicariousliability, it makes no mention.But the fact that the English Act premised liability in tort on a vicarious ratherthan direct basis should have been appreciated. The point was made perfectly clear inGlanville Williams' 1948 treatise on Crown Proceedings.92 Whether or notthe legislators entirely appreciated the point in 1950, the consequence was certainly87 Anderson, above n 64, at 17.88 At 18.89 See above at [70].90 Crown Proceedings Bill 1950 (67-1) (explanatory note) at i.91 (10 November 1950) 293 NZPD 4134.92 Williams, above n 66, at 44.apparent soon after the legislation was introduced. Mr Currie's 1953 New Zealandtreatise on Crown and Subject is clear on the point:93 the Crown is under no direct common-law liability for tort as such. In afew cases a suppliant could, waiving the tort, recover property wrongfullydetained or moneys wrongfully received. Its liability now arises under s 6 ofthe Crown Proceedings Act 1950. The liability is for the most part vicarious,and related to the wrongful acts and defaults of the Crown's various classes ofservants and other agents.The net result of all this is, as Professor Anderson observes, "[t]he rule in bothEngland and New Zealand is that the [C]rown cannot be sued in tort for [direct]liability".94 This he condemned:95The statutory limitation of torts liability to vicarious liability is anembarrassment to our law, and a distortion of it. It has no principledjustification, and never has had. It is the result of accidents of English history.It was brought into New Zealand law as a substitute for an indigenous rulethat by then had its limitations, but was a rule based upon principle.Whatever the rights or wrongs of the matter may be as a matter of policy,we venture to suggest that the law in this respect is entirely clear. We have alreadycited the works of Mr Currie and Professor Anderson. To those might be added threefurther references.First, the judgment of this Court in Crispin v Registrar of District Court.96In that case Mr Crispin, an electrician, had been erroneously recorded as a judgmentdebtor in the civil record book by a District Court Deputy Registrar. His claims indefamation and negligence were struck out in the High Court on the basis ofthe immunity in s 6(5) of the Crown Proceedings Act. On appeal, Cooke P observed:97Claims in tort based on actions or omissions of Crown servants can be putforward in three ways. First, there can be an action against the Crown,commonly represented by the Attorney-General, under the CrownProceedings Act 1950, alleging vicarious liability on the part of the Crown.Secondly, there can be an action against the individual employee or employeesalleged to have committed the tort: this would be against them personally,named as individuals, although it would often be the case that the Crown as agood employer would stand behind them financially. Thirdly, where a statute93 AE Currie Crown and Subject (Legal Publications, Wellington, 1953) at 73 (footnote omitted).94 Anderson, above n 64, at 18.95 At 21.96 Crispin v Registrar of the District Court [1986] 2 NZLR 246 (CA) at 254.97 At 255.or subordinate legislation so permits, there may be an action against the holderof an office named simply as such holder: a class of case in whichthe legislation authorises the holder of the office for the time being to be suedeo nomine.Secondly, the leading New Zealand academic authority on tort law, Todd onTorts, evaluates the authorities and concludes, in terms admitting no doubt on thematter:98 any liability in tort must be found in the Crown's vicarious liability forwrongdoing by Crown servants or agents or in any direct liability of Crowncorporations. The liability of the Crown cannot be [direct] in nature.Thirdly, in December 2015 the Law Commission issued the report The Crownin Court. This was the product of a lengthy and careful consideration of the CrownProceedings Act. The report recommends a new Crown Proceedings Bill which wouldenable the Crown to be sued directly in tort as opposed to vicariously. In making thatrecommendation, the Law Commission noted:99The Crown could be "sued" directly in New Zealand before the 1950 Act,although currently, the Crown can only be sued vicariously, with limitedexceptions in the Act.The Law Commission went on to state that in most cases, a plaintiff attemptingto sue the Crown in tort must first establish that an employee of the Crown hascommitted a tort — that is, liability is vicarious. The report continues:100This requirement creates significant difficulties when it is alleged thatthe Crown or a government department as a whole has breached its obligations(systemic negligence).The report also notes:101The Crown Proceedings Act effectively establishes a bar against suingthe Crown directly in tort with the exception of the very limited classes ofclaims available under sections 6(1)(b), 6(1)(c) and 6(2). This bar is felt mostsharply in the case of negligence claims but applies equally to other torts.The Crown can only be held vicariously liable in tort for the acts andomissions of Crown employees. Consequently, in order to sue the Crown innegligence, a potential claimant must identify a particular Crown employee98 Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 1268(footnote omitted).99 Law Commission The Crown in Court (NZLC R135, 2015) at [2.13] (footnotes omitted).100 At [2.6].101 At [3.8].and allege that he or she has committed a tort. However, if no particularCrown employee has committed a tort or it is alleged that the governmentdepartment as a whole has failed or it is claimed that a number of governmentdepartments have collectively failed, a person harmed (in circumstanceswhere there would otherwise be legal redress) may be left without any redressagainst the Crown.If the respondents' contention is correct, we would be left with the remarkableconclusion that the fundamental premise on which the Law Commission reportproceeded was entirely wrong, and that the reform for which it contends had beeneffected already, without the Law Commission appreciating that event.102We turn now to an argument Mr Galbraith made that attracted us briefly. It wasthat the limitation in ss 3(2)(b) and 6(1)(a) of the Crown Proceedings Act,in combination, have been ameliorated by s 27(3) of the New Zealand Bill of RightsAct.103As Elias CJ noted in Attorney-General v Chapman, that section was enacted inthe form proposed in the White Paper.104 The commentary in the White Paperrecords:105[10.176] [The provision is] designed to give constitutional status to thecore principle recognised in the Crown Proceedings Act 1950: thatthe individual should be able to bring legal proceedings againstthe Government, and more generally to engage in civil litigation with it,without the Government enjoying any procedural or jurisdictional privileges.This is central to the rule of law.[10.178] Again the phrase "according to law" will enable the right tobe regulated by legislation (at the moment the Crown Proceedings Act 1950)and by the common law. This could if necessary be invoked to uphold the lawof public interest immunity. 102 In due course the Government rejected the Law Commission's proposal that the Crown be liabledirectly in tort, citing "significant constitutional and fiscal" consequences if the proposal wereadopted: Government Response to the Part A of the Law Commission's report: The Crown inCourt: A Review of the Crown Proceedings Act and National Security Information in Proceedingsat 3.103 See above at [82].104 Attorney-General v Chapman, above n 62, at [87].105 Geoffrey Palmer "A Bill of Rights for New Zealand: A White Paper" [1984–1985] I AJHR A6.In our view this provision, while of fundamental importance, does not have theeffect of introducing direct Crown liability for tort in place of ss 3(2)(b) and 6(1)(a) ofthe Crown Proceedings Act. There are two reasons for that view. The first is that,as the White Paper makes clear, the limitation "according to law" embraces rather thanreforms the regulatory legislation in the Crown Proceedings Act. The second is that,if the New Zealand Bill of Rights Act had the liberating effect claimed for it bythe respondents, it went entirely unnoticed by the Law Commission in its 2015 report,and by the authors of the leading text on the New Zealand Bill of Rights Act,The New Zealand Bill of Rights Act: A Commentary.106 That suggests to us thatthe respondents' contention cannot be correct, and that it represents an adventitiousrather than accurate analysis of the statute.ConclusionThe answer to Issue 1(a) is that the Crown cannot be liable directly inthe circumstances of this case. Its liability, if any, must be vicarious. That isthe product of statutory reform in 1950. If the position is to change, that too must bethe product of careful, incremental statutory (rather than common law) reform,as the Law Commission recognised in 2015.Issue 1(b): What is the impact of any such direct liability on the Crown'sliability?Given the conclusion we reach on Issue 1(a), Issue 1(b) does not fall fordecision by us.It follows the respondents must first identify direct liability on the part ofindividual Crown servants or agents before the Crown can be vicariously liable forsuch actions under the Crown Proceedings Act.106 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at [25.4.6]–[25.4.11].ISSUE 2: IMMUNITYIssue 2(a): Did the High Court err in holding that s 163 of the Biosecurity Act1993 did not apply to the acts or omissions of MAF personnel at the pre-borderstage?As noted earlier, s 163 of the Act provides an immunity for inspectors andothers:163 Protection of inspectors and othersAn inspector, authorised person, accredited person, or other person who doesany act or omits to do any act in pursuance of any of the functions, powers, orduties conferred on that person by or under this Act or a pest managementstrategy shall not be under any civil or criminal liability in respect of that actor omission, unless the person has acted, or omitted to act, in bad faith orwithout reasonable cause.The Crown says it applies to all individual MAF personnel who might here be liableto the respondents, and that the Crown takes the benefit of that immunity via s 6 ofthe Crown Proceedings Act. The respondents say the immunity applies to neitherpre-border nor border personnel, and that in any event it is inapplicable wherereasonable care has not been exercised.Judgment appealedThe Judge identified two issues of interpretation.107 The first was what wasmeant by "conferred by or under this Act". If that did not apply to the actions oromissions of the relevant MAF personnel, then the question of whether the Crowncould have the benefit of s 163, via the Crown Proceedings Act, did not arise. If s 163did apply to those personnel, the second issue was whether those actions or omissionswere "without reasonable cause". As the Judge noted, in that case MAF personnelwould not have the benefit of the provision, and nor would the Crown via the CrownProceedings Act.On the first question, the Judge considered the provisions of the Act, and notedthat it conferred particular powers, functions and duties on the Minister,Director-General, chief technical officers, deputy chief technical officers, inspectors,107 High Court judgment, above n 2, at [1317]–[1318].authorised persons and accredited persons.108 The chief executive of a department(here, the Director-General) was permitted to delegate functions under any Act toan employee, under s 41 of the State Sector Act 1988. The issuing of a permit underan IHS was a matter for the Director-General. The permits in this case were delegatedby the Director-General to an "authorised person". The Act did not make provisionfor such delegation, but delegation would be permissible under s 41.109The Judge considered that the Act had a carefully considered and detailedframework for conferring powers on or under the Act. It applied to "inspector[s],authorised person[s], accredited person[s], or other person[s]" who may have powers,functions and duties conferred on them by a chief technical officer. The Judgeconsidered that s 163 was intended to provide protection from liability to those personsprovided they did not act in bad faith and without reasonable cause.110 However sheconcluded that MAF pre-border personnel in the Plant Imports team, PHEL or otherMAF groups were not appointed under the Act and did not have powers, duties orfunctions specifically conferred on them by or under the Act.111 Section 163 of the Actdid not apply to MAF personnel employed by MAF to assist the Minister and otherofficers to administer the Act. It did not therefore apply to MAF personnel involvedin the decision to issue Kiwi Pollen's import permit. But it did apply to the inspectorsat the border who are appointed by a chief technical officer under the Act.112On the second question, the meaning of "reasonable cause", the Judge notedthe competing contentions of the parties.113 She concluded that the Crown'ssubmission was the more natural reading of the Act. The words "without reasonablecause" concerned the purpose of the function, power or duty undertaken. It was notabout how well the person carried out that function, power or duty. The provisionoffered a broader immunity to persons acting under the Act than contended for bythe respondents:114108 At [1320]–[1329]. See also Biosecurity Act, ss 8, 22 and 101–105.109 At [1323]–[1324].110 At [1329].111 At [1330].112 At [1329] and [1332]–[1333].113 At [1335]–[1336].114 At [1337].As long as persons acting under the Act have not acted in bad faith and havea proper reason for taking the action (or omissions) they have, they will nothave liability.The effect of the respondents' argument would have been that "a personexercising statutory functions can never have reasonable cause to act withoutreasonable care".115 The different choice of wording, contrasting s 164 in which thewords "reasonable care" were used, suggested a deliberate distinction intended byParliament.116 Section 164 provides:164 Liability for goodsThe Crown shall not be under any civil liability in respect of any loss ordamage to any goods suffered—(a) While those goods are in the custody of the Crown by reason of theexercise, in good faith and with reasonable care, of authority underthis Act; or(b) As a result of or in the course of any treatment, handling, or quarantineof those goods undertaken or required in good faith and withreasonable care by an inspector or any other person acting in theexercise of authority under this Act.The Judge concluded:[1353] I conclude that "without reasonable cause" in s 163 was deliberatelychosen because it was intended to apply to wide ranging powers, exercised inthe public good for the purposes of the Act, and likely to cause loss. It wasintended to provide a broad immunity for those who are exercising functions,powers, or duties specifically conferred on that person by the Act, pestmanagement plan or pathway management plan and who may not havethe protection under s 86 of the State Sector Act. The Judge then moved on to consider the application of s 86 of the State SectorAct. At the relevant time it provided:86 Protection from liabilityNo chief executive, or employee, shall be personally liable for any liability ofthe Department, or for any act done or omitted by the Department or bythe chief executive or any employee of the Department or of the chiefexecutive in good faith in pursuance or intended pursuance of the functions orpowers of the Department or of the chief executive.115 At [1336].116 At [1342]–[1343].Following the Couch litigation and after the events in issue here,117 s 6(4A) ofthe Crown Proceedings Act was enacted.118 That provided:Despite certain Crown servants being immune from liability under section 86of the State Sector Act 1988,—(a) a court may find the Crown itself liable in tort in respect of the actionsor omissions of those servants; and(b) for the purpose of determining whether the Crown is so liable,the court must disregard the immunity in section 86.The Judge accepted the respondents' submission that that amendment shouldbe taken as parliamentary confirmation that the majority in Couch v Attorney-General(No 2) had misconstrued s 86, and that the view expressed by McGrath and Wilson JJshould be preferred.119 The majority in Couch (No 2) concluded that s 86 had limitedeffect, removing liability in tort for the acts of others, but not the personal acts of theprotected chief executive and employees themselves.120 The minority construedthe provision as excluding personal liability for personal acts performed in goodfaith.121 In accordance with the minority, the Judge concluded that the protectionMAF personnel have under s 86 did not protect the Crown from vicarious liabilityunder the cause of action concerning pre-border activities.122 That was becausethe minority in Couch (No 2) construed s 6(1) of the Crown Proceedings Act asexcluding Crown liability only where the servant or agent enjoyed immunity as aprivate person: "It does not exclude Crown liability where the servant is immunisedon account of being a Crown servant, which is the effect of s 86."123SubmissionsThe Crown submits that the statutory immunity in s 163 applies to the Minister,Director-General, and to the MAF personnel identified in both pts 4 and 5 ofthe judgment (being the relevant pre-border and border personnel). Mr Hodder117 See Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 [Couch (No 2)].118 State Sector Amendment Act 2013, s 62(4).119 High Court judgment, above n 2, at [1356].120 Couch (No 2), above n 117, at [7], [71] and [173]–[174].121 At [193] and [250].122 High Court judgment, above n 2, at [1358].123 Couch (No 2), above n 117, at [189].submits, further, that "reasonable cause" does not mean "reasonable care", but invokesthe language of misfeasance of public office. It is concerned with purpose, rather thanwith how well a function is performed. The Crown itself receives the benefit ofthe s 163 immunity via s 6 of the Crown Proceedings Act.The respondents submit that s 163 applies to neither of the relevant pre-borderor border personnel addressed in pts 4 and 5 of the judgment, there being insufficientevidence to establish that any of them had been appointed and had powers conferredon them such they could rely on that provision. In doing so Mr Heard (who presentedthe argument on this issue for the respondents) adopts substantially the reasoning ofthe Judge in respect of pt 4. He submits that s 163 is essentially a conditional personalimmunity for the exercise of specific statutory powers and duties conferred on specificpersons, and exercisable only by the person on whom the power is conferred. It onlyapplies to acts or omissions done in pursuance of functions, powers, or dutiesconferred on specific persons by or under the Act. The distinction between conferralby and conferral under the Act is recognition that some powers and duties areconferred on specific office holders expressly by the statute (eg the powers conferredon the Minister under s 9) and other powers are conferred by persons who have thepower to appoint specific officers under the Act (eg when a chief technical officerappoints an inspector under s 103, he or she has the power to specify the powersthe inspector will have).124 In the latter example, he submits, powers are not conferredby the Act, but rather conferred under it.Mr Heard also submits that the meaning of "reasonable cause" in s 163 ofthe Act encompasses "reasonable care". No discernible pattern exists in legislativeimmunity provisions, and the parliamentary debates do not assist here. However, asan immunity is established, a "jealous interpretation" ought to be applied.125That would best be achieved by construing "without reasonable cause" as including"without reasonable care", to ensure the immunity in s 163 is not "overbroad".124 Biosecurity Act, s 103(6).125 Referring to De Bres v McCully [2004] 1 NZLR 828 (HC).AnalysisFour preliminary observations may be made.The first is that s 6(4A) of the Crown Proceedings Act took effect only inJuly 2013, well after the events at issue in these proceedings. There is no basis forreading it as having any retrospective effect. We therefore consider the decision ofthe majority in Couch (No 2) remains binding on this Court. We do not consider thesubsequent legislative amendments to s 6 of the Crown Proceedings Act and s 86 ofthe State Sector Act permit us to depart from that decision.The second preliminary observation we make is that the majority analysis inCouch (No 2) did not proceed on the basis that only immunities available to privatecitizens undertaking private activities are embraced by the proviso to s 6(1). That wasthe minority's reasoning, but it was rejected by the majority. Rather, the majorityproceeded on the basis that should statute exclude the personal liability of a Crownservant, then the effect of the proviso to s 6(1) is that the Crown is no longervicariously liable.126Thirdly, the only immunity the Crown could point to in the Couch litigationwas s 86 of the State Sector Act. The majority analysis of that provision, which weconsider remains binding on this Court in this case, is that it serves only an internalpurpose. That is, it provides the negligent Crown servant an immunity againstrecovery by his or her employer, the Crown. However, s 86 gave the servant noimmunity against liability to an external plaintiff.127 One might argue about thatinterpretation, and the minority did not accept it,128 but we will not argue about it here.It binds this Court and we will apply it.Fourthly, it follows that if the Crown were reliant on s 86 as it formerly was inrespect of these acts committed in 2006–2009, it would be in difficulty. But the Crownputs s 86 to one side and, applying the majority analysis of s 6 of the CrownProceedings Act in Couch (No 2), invokes instead s 163 of the Act. This, it says, is a126 Couch (No 2), above n 117, at [176].127 At [173]–[174].128 At [193].broader-cast immunity than s 86. It excludes primary liability on the part of eachindividual MAF servant or agent who might have owed (and breached) a duty of careto the respondents, whether pre-border or at the border.The real question for us, on this issue, is whether that submission is correct.For convenience we repeat s 163:163 Protection of inspectors and othersAn inspector, authorised person, accredited person, or other person who doesany act or omits to do any act in pursuance of any of the functions, powers, orduties conferred on that person by or under this Act or a pest managementstrategy shall not be under any civil or criminal liability in respect of that actor omission, unless the person has acted, or omitted to act, in bad faith orwithout reasonable cause.A number of points may be made about this provision. First, it is one of anumber of miscellaneous provisions towards the end of the Act. Three of thoseprovisions concern liability or compensation.129 Secondly, the exclusion of liabilityitself could hardly be broader. Subject to the occupational and functionalqualifications set out in the first half of the provision, and the proviso at the end ofthe second, the exclusion is "any civil or criminal liability". Thirdly, s 163 wasenacted in 1993, five years after s 86 of the State Sector Act. The effect of s 86,Couch (No 2) holds, is to exclude internal liability of chief executives anddepartmental employees, to the Crown, for their actions. It may be inferred that s 163probably does something else, then. It is certainly freighted with qualifications notcontained in s 86. We will revert to these in a moment. But on its face, it is a completeexclusion of personal liability, and we see no warrant in its terms to limit its applicationto internal plaintiffs (unlike s 86).We turn now to the occupational and functional qualifications at the start ofs 163. Necessarily we take them together. The immunity (or "protection") is availableonly to an "inspector, authorised person, accredited person, or other person who doesany act or omits to do any act in pursuance of any of the functions, powers, or dutiesconferred on that person by or under this Act or a pest management strategy".129 See above at [67].As Mr Hodder submits, s 8 of the Act makes the Minister responsible for theadministration of the Act, and for its co-ordinated implementation. Explicitly orimplicitly officials may, by a general principle of public law, exercise the Minister'spowers of administration.130Bearing that in mind, and in contrast to the Judge, we do not read s 163 asconfined to those persons who "have powers, duties or functions specifically conferredon them by or under the Act".131 The Judge's adoption of the word "specifically"dramatically reduces the range of officials performing the Minister's statutoryresponsibilities under Act to whom the protection might apply. In our view it does sowithout a particularly discernible, satisfactory reason. A significant rationale offeredby the Judge was that MAF personnel whose powers were not specifically conferredunder the Act did not require the protection from civil or criminal liability providedby s 163, because "[t]hey have the more extensive protection provided by s 86 ofthe State Sector Act."132 But that was based on the Judge's adoption of theinterpretation of s 86 proposed by the minority in Couch (No 2), in light of subsequentlegislative amendment, a course we do not consider to be open.133The Judge analysed carefully the Act and the powers of appointment ofan "inspector", "authorised person" and "accredited person".134 But s 163 is widerthan that in extending to "other persons". Presumably it must have been intended toapply to the Minister himself, given the allocation of all administrative responsibilitiesto the Minister in the first place. Likewise, the Director-General and chief technicalofficers who do not obviously fit within the other descriptors. We do not acceptMr Heard's argument that this might then incorporate members of the public uponwhom duties may be imposed under the Act. The protection relevantly relates here tothe performance of responsibilities imposed in the first place generally uponthe Minister (or otherwise specifically allocated by the Act) and then delegated toMAF personnel whether named or not within the Act.130 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [47], citingCarltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA).131 High Court judgment, above n 2, at [1330].132 At [1332].133 See above at [125]–[126].134 High Court judgment, above n 2, at [1323]–[1329].We agree with Mr Hodder no logical reason is apparent to distinguish,for the purposes of immunity, between those formally appointed in terms of the Actand those who provide the advisory and administrative support to those people.The approach adopted at first instance, incorrectly premised on an alternativeimmunity being available under s 86 of the State Sector Act, would result in largeswathes of those performing the Minister's administrative functions under the Actbeing exposed to personal liability to third parties. As Mr Hodder submits, that wouldencourage litigants to alter the point of attack from the formal decision-maker underthe statute, to those advising the decision-maker. And it would render s 163 a raggedblanket without an apparent rationale for inclusion and exclusion.Each of the individuals identified as potentially bearing (and breaching) a dutyof care to the respondents was a MAF employee. One of the individuals singled outby the respondents, Dr Card, may have been on a temporary contract, but his workwas supervised by Dr Clover, a permanent employee and team manager of the MAFPlant Health and Environment Laboratory. We take the view that the words"under this Act" should be construed as referencing functions, powers or dutiesgranted indirectly as well as directly. MAF personnel who perform or assist with theperformance of the Minister's functions under s 8 fall within s 163.We turn, finally, to the proviso at the end of s 163. It takes the form of adisqualification, rather than a qualification. That is important because the premise isthe protection applies to the performance of functions under the Act, and the provisothen withdraws it. A MAF employee otherwise enjoying immunity under s 163 willlose that protection if their act or omission occurred "in bad faith or without reasonablecause". There is no suggestion here of bad faith. The issue is whether the words"without reasonable cause" apply here because of a want of due care.It may be observed that the legislative drafting of statutory immunities forpersons performing statutory functions tends to fall within six broad categories (set outin descending order of extent). Crown and/or personal liability may be excluded:(a) altogether, without qualification;135(b) so long as the act (or omission) was done in good faith (or unless the actwas done in bad faith);136(c) unless the act (or omission) was done "in bad faith or withoutreasonable cause" (which is what s 163 provides) (or the act was done"in good faith and with reasonable cause");137(d) unless the person concerned "has not acted in good faith or has beengrossly negligent";138(e) unless the act (or omission) was done "in bad faith or withoutreasonable care" (or "in good faith and with reasonable care", which iswhat s 164 provides);139 and(f) (rarely) provided reasonable grounds for the act existed.140The last of these is rare, presumably because it is the least extensive in effect.But it may be observed that Crown immunity provisions are common, conventionaland current.141 They take disparate forms, and the draftsperson and Parliament maybe taken to have chosen the form (and therefore, the extent) of the immunitydeliberately. Each has a different effect, and therefore extent.135 Maritime Transport Act 1994, s 256; Animal Products Act 1999, s 61A; Dairy IndustryRestructuring Act 2001, s 37; Meat Board Act 2004, s 80; and Intelligence and Security Act 2017,ss 110–111.136 Wild Animal Control Act 1977, s 32; State Sector Act, s 86; Civil Aviation Act 1990, s 80I;Financial Transactions Reporting Act 1996, s 17 (since repealed); and Trade Marks Act 2002,s 157.137 Wildlife Act 1953, s 60; Fisheries Act 1996, s 220; Agricultural Compounds and VeterinaryMedicines Act 1997, s 63; Climate Change Response Act 2002, s 106; Food Act 2014, s 351;and Biosecurity Act, s 163.138 Passports Act 1992, s 37B; and Customs and Excise Act 2018, s 311.139 Health Act 1956, s 129; Misuse of Drugs Act 1975, s 34; Medicines Act 1981, s 102;Ship Registration Act 1992, s 64; Hazardous Substances and New Organisms Act 1996, s 139;Intelligence and Security Act, ss 31–32 and 43–44; and Biosecurity Act, s 164.140 Ship Registration Act, s 73.141 The most recent of the provisions noted above is from 2018 legislation.The Judge analysed this issue in some depth.142 In short, the Judge found thewords "in bad faith or without reasonable cause" in s 163 stand in contradistinction tothose in the immediately following provision, s 164 ("in good faith and withreasonable care") — and are concerned with purpose rather than performance.We agree, a conclusion assisted by the legislative record noted at [138] and [139]above which the Judge did not consider explicitly. As Mr Hodder puts it,the expression "reasonable cause" is associated with misfeasance in a public officeand reckless disregard.143 Unlike Mr Heard, we do not see s 164's contrasting wordingas indicative of interchangeability. Rather, we see it as indicative of deliberatelydifferentiated drafting. It is unnecessary for us to enlarge further on the Judge'sreasoning.ConclusionWhile we agree with the High Court's conclusion as to the effect of the provisoin s 163, we consider the High Court erred in holding that s 163 did not apply tothe acts or omissions of MAF personnel undertaking administrative responsibilities onbehalf of the Minister at the pre-border stage. The answer to Issue 2(a) must thereforebe "yes".Issue 2(b): Did the High Court err in holding that s 163 of the Biosecurity Act1993 applied to the acts or omissions of MAF personnel at the border clearancestage?It must follow from the preceding analysis under Issue 2(a) that the answer toIssue 2(b) is, in contrast, "no". We see no need to say anything further on this point.142 High Court judgment, above n 2, at [1334]–[1354].143 Garrett v Attorney-General [1997] 2 NZLR 332 (CA) at 344–345 and 349–350, as furtherexplained in Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, [2008] 3 NZLR649 at [118]–[121].Issue 2(c): Did the High Court err in holding that the Crown cannot take thebenefit of the immunity under s 163 (to the extent it applied to the acts oromissions of any MAF personnel) pursuant to s 6 of the Crown Proceedings Act1950?We have found that s 163 affords an immunity against civil and criminalliability to third parties in favour of the MAF personnel said to have been in breach ofa duty of care to the respondents.Consistent with the analysis of the majority in Couch (No 2) it follows thatthe proviso to s 6(1) of the Crown Proceedings Act applies here. Inasmuch as no causeof action can lie against the individual personnel responsible, nor can one lie againstthe Crown.Section 6(4) applies braces to the proviso's belt. We do not accept thesuggestion by the Judge that s 6(4) applies to "officers" in a sense excludingservants.144 The definition of "officer" in s 2(1) includes servants. The rationale forsuch a distinction, limiting the effect of s 6(4), is not evident, particularly given theoverlap with the proviso to s 6(1). Nor would s 6(4A), referring to servants, be needed.It may also be observed, in closing this discussion, that s 6(4A) and (4B) limitthe effect of two specific statutory immunities: s 86 of the State Sector Act and s 351of the Food Act 2014. But, as we have shown earlier, they are two among many,and the others — notably s 163 which has been on the statute books for more than aquarter of a century — are not excepted.ConclusionIt follows that the answer to Issue 2(c) must also be "yes". We find thatthe High Court erred in holding that the Crown cannot take the benefit of the immunityunder s 163 (to the extent it applied to the acts or omissions of any MAF personnel)pursuant to s 6 of the Crown Proceedings Act.144 High Court judgment, above n 2, at [1373].INTERMISSIONThe analysis thus far decides the appeal in favour of the Crown. In case thisproceeding should be considered in another jurisdiction, we shall now analyse dutyand breach as if Issue 2 had been answered in favour of the respondents.This cannot be done with brevity.ISSUE 3: FIRST CAUSE OF ACTION — PRE-BORDER NEGLIGENCEOverviewThe duty of care asserted in the High Court proceeded from the followingbroad contention:145At all material times, MAF and officers, agents and/or employees of MAFowed the plaintiffs a duty to exercise reasonable care and skill whenundertaking their functions and responsibilities in relation to biosecurity inNew Zealand including their functions under the Biosecurity Act 1993 orotherwise.Recognising that the pleading of a duty to exercise reasonable care whenundertaking statutory functions and responsibilities might be construed as anallegation of a negligent breach of statutory duty, in his roadmap Mr Galbraithreformulated the duty as follows:Duty of care in respect to the consideration of and granting of the Kiwi Pollenapplication to import pollen from buds milled in China and apply to NZkiwifruit orchards, and the clearance without inspection.In response to this Court's request for the revised pleading to addressseparately the conduct pre-border (the pre-border duty) and at importation (the borderduty), a more detailed formulation was tendered. With reference to the pre-borderfunctions it stated:MAF and MAF personnel owed a duty of care:(A) when assessing applications to import nursery stock, being unlimitedvolumes of kiwifruit pollen from China, obtained by macerating145 Amended statement of claim at [121].flower buds and intended for pollination of New Zealand kiwifruitorchards, and in granting permits to import that nursery stock dated16 April 2007 and 30 April 2009;Particulars1. The duty in (A) required:(a) assessing the permit applications against the acceptable levelof risk, which was "negligible or less";(b) appropriate consideration of the high risk to New Zealandkiwifruit orchards from the bacteria Psa given the severedamage Psa was known to cause to kiwifruit vines withaccompanying loss of production;(c) appropriate enquiry into and consideration of the process bywhich commercially milled pollen is produced, whichincludes macerating whole flower buds and inevitablyresults in plant parts other than pollen being included;(d) appropriate enquiry into and consideration of the likelihoodof Psa being associated with commercially milled pollen;(e) appropriate application of MAF's Risk Analysis Procedures;(f) appropriate investigation and consideration of the particularrisks associated with importation of commercially milledpollen from China;(g) appropriate investigation and consideration of the ability ofthe Chinese [National Plant Protection Organisation] toimplement any necessary pre-export measures;(h) the use of procedures consistent with the Importation ofNursery Stock Import Health Standard and schedulesapplying to kiwifruit nursery stock;(i) the inclusion of measures/conditions of entry appropriate tothe high level of risk;(j) appropriate consultation with the kiwifruit industry asrequired by s 22 of the Biosecurity Act, the Risk AnalysisProcedures and MAF's policy statement on consultation.Hence in relation to the pre-border functions the pre-border duty was confinedto the conduct involving the grant of the first import permit to Kiwi Pollen on16 April 2007 and the so-called renewal of the permit on 30 April 2009.The reformulated duty echoed the three processes prescribed in s 22:146 riskassessment, management of risk by appropriate entry conditions, and consultation.Statutory contextThis is a case where the relationship between the parties derives fromthe statutory framework. As Tipping J observed in North Shore City Council vAttorney-General (The Grange), in those circumstances the existence and ambit ofany common law duty of care is profoundly influenced by that framework.147The evolution of s 22 of the Biosecurity Act 1993Prior to the commencement of the Act on 1 October 1993 the importation ofplant material into New Zealand was regulated by the Introduction and Quarantine ofPlants Regulations 1973, made pursuant to the Plants Act 1970. Special requirementsin relation to "nursery stock"148 were specified in reg 29, including obtaining a permitto import from the Director-General.The Act in its original form made provision for the Director-General to issueimport health permits for the importation of risk goods from any country.149The criteria to which the Director-General was to have regard were prescribed150 andno import health permit could be issued unless an IHS151 issued under s 22 was in146 See below at [158].147 North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 [The Grange]at [224].148 Defined in the Introduction and Quarantine of Plants Regulations 1973, reg 2(1) as meaning"propagative material of any kind or species of plant and includes any vegetable to be used forpropagation; but does not include any vegetable for consumption, fruit, or seed, or the bulb, corm,rhizome, or tuber of any ornamental plant, that is in a dormant state".149 Biosecurity Act, s 20 (repealed as from 26 November 1997 by the Biosecurity Amendment Act1997, s 12(b)).150 Section 21(2) (repealed as from 26 November 1997 by the Biosecurity Amendment Act, s 12(b)).151 Defined in s 2(1) as "a statement approved under section 22(1) of [the] Act by a chief technicalofficer of the conditions that must, if an import is to be made, be met in the country of origin orexport, during transit, during importation and quarantine, and after introduction".force in respect of the relevant risk goods.152 In the absence of an exemption153 ora regulation permitting importation without an import health permit, a biosecurityclearance could not be granted in respect of risk goods unless an inspector wassatisfied that an import health permit was in force in respect of the goods and that theycomplied with the requirements of both the permit and the associated IHS.154It appears that difficulties were experienced in the implementation of aspectsof the statutory requirements, some of which were highlighted in the judgment onreview in New Zealand Asparagus Council v Director-General of Agriculture andFisheries.155 Various inadequacies were sought to be overcome by the BiosecurityAmendment Bill (No 4) 1996.156 In its report back the Primary Production Committeerelevantly stated:157Repeal of provisions relating to import health permitsClause 12 repeals the provisions in the Act relating to import health permits.Under the current Act, import health permits set out requirements that must bemet before goods can be given biosecurity clearance. This duplicates thefunction performed by import health standards. Import health standardsClause 13 repeals section 22 of the Act which provides for import healthstandards and substitutes new section 22 which more clearly defines the natureand purpose of an import health standard. 152 In November 1993 the first IHS was issued in respect of the importation of nursery stock describedas "NASS Standard 155.02.06". Consistent with the mandatory requirement for an import healthpermit, the Basic Entry Conditions for nursery stock stipulated that a permit to import wasrequired. In respect of pollen, the document stated that "[a] prior permit to import must beobtained from the Permit Officer, MAF Lynfield".153 Biosecurity Act, s 24.154 Section 27(a).155 New Zealand Asparagus Council v Director-General of Agriculture and Fisheries HC WellingtonCP103/95, 20 June 1995, referred to in (19 December 1995) 552 NZPD 10887. Among otherthings the Court held that no import health permit had been issued in respect of the actual orprospective importation of asparagus since the Act came into force, meaning the approvals forimportation purportedly given by MAF had no statutory basis. However the Court rejected thecontention that there was either an express or implied obligation in the Act to consult on the issueof permits or standards.156 Biosecurity Amendment Bill (No 4) 1996 (216-1). The general policy statement includedreference to the fact that Ministry of Agriculture inspectors had identified inadequacies of the Actfor implementing some aspects of the border control of imported goods.157 Biosecurity Amendment Bill (No 4) 1996 (216-2) (select committee report) at viii–ix (emphasisadded).These amendments clarify a confusing situation under the current Act.While section 22 provides for import health standards, the section does not listthe matters that need to be taken into account when a standard is developed.These matters are instead listed in the section relating to import health permits(which are issued only if an import health standard exists). This leads to theincorrect interpretation that the focus of the risk assessment is during thepermitting process rather than in the standard setting process.The new s 22 specified the object of an IHS, the matters to which regard wasto be had in the making of a recommendation and provided for consultation.Relevantly it provided:22 Import health standards(1) The Director-General may, following the recommendation of a chieftechnical officer, issue an import health standard specifying therequirements to be met for the effective management of risksassociated with the importation of risk goods before those goodsmay be imported, moved from a biosecurity control area ora transitional facility, or given a biosecurity clearance; and may, ina like manner, amend or revoke any import health standard so issued.(2) If an import health standard requires a permit to be obtained fromthe Director-General before the goods can be imported, moved froma biosecurity control area or a transitional facility, or givena biosecurity clearance, the Director-General may, if he or she thinksfit, issue the permit.(3) Nothing in this Act obliges the Director-General to have an importhealth standard in force for goods of any kind or description if, inthe Director-General's opinion, the requirements that could beimposed on the importation of those goods would not be sufficientto enable the purpose of this Part to be met if the importation of thosegoods were permitted.(4) An import health standard issued under this section may apply togoods of a certain kind or description imported from—(a) A country or countries specified in the import healthstandard; or(b) Countries of a kind or description specified in the importhealth standard; or(c) All countries; or(d) A location or locations specified in the import healthstandard.(5) When making a recommendation to the Director-General inaccordance with this section, the chief technical officer must haveregard to the following matters:(a) The likelihood that goods of the kind or description to bespecified in the import health standard may bring organismsinto New Zealand:(b) The nature and possible effect on people, the New Zealandenvironment, and the New Zealand economy of anyorganisms that goods of the kind or description specified inthe import health standard may bring into New Zealand:(c) New Zealand's international obligations:(d) Such other matters as the chief technical officer considersrelevant to the purpose of this Part.(6) Before making a recommendation to the Director-General on theissue or amendment of an import health standard, the chief technicalofficer must, unless the standard needs to be issued or amendedurgently, or unless the chief technical officer considers that theamendment is minor, consult with those persons considered by thechief technical officer to be representative of the classes of personshaving an interest in the standard.(7) The consultation may be on the import health standard or on adocument that analyses or assesses the risks associated with thegoods or class of goods to which the goods belong.(8) Before making a recommendation to the Director-General inaccordance with this section the chief technical officer must givenotice of the intention to make the recommendation to the chiefexecutive of every department of State whose responsibilities fornatural resources or human health may be adversely affected by theissue, amendment, or revocation of the relevant standard.Section 27(a) was correspondingly amended to state that a biosecurityclearance could not be given for risk goods unless the inspector was satisfied:(a) That the goods comply with the requirements specified in an importhealth standard in force for the goods (or goods of the kind ordescription to which the goods belong); The alleged duty in the statutory contextAs already noted, the reformulated duty of care in respect of the assessment ofapplications for and the grant of import permits echoes the processes prescribed ins 22 of the Act:158(a) assessment of risk associated with importation: (a)–(g);(b) management of such risk by appropriate conditions of entry: (h)–(i);and158 See the reformulated allegation above at [152].(c) consultation with the industry: (j).The High Court treated the import permit process in respect of pollen as apostponement or deferral of the s 22 functions, including consultation, stating:159[368] A duty to carry out non-negligent risk assessments (before approvalto import risk goods is given or when there has been an outbreak of a diseasein a country which exported goods to New Zealand) does not conflict withother duties under the Act. Rather, the duty marches "hand-in-hand" withthe Act's purpose of effectively managing the risks associated with theimportation of risk goods, New Zealand's ability to set its own appetite forrisk and its obligation to make its decisions on the basis of science. It isconsistent with the delegated legislation (the IHS for nursery stock) whichpostponed the required risk assessment for pollen imports until anapplication for a permit was made.[814] Dr Butcher was explaining that consultation was necessary at somepoint in the process.160 As the IHS simply referred to the need to obtaina permit, the first permit for a pollen import should have triggeredconsultation. That evidence is consistent with s 22(6) of the Biosecurity Actwhich required consultation before the chief technical officer recommendedthat the Director-General adopt an IHS. This aspect of the Nursery Stock IHSeffectively had been postponed in relation to pollen. Dr Butcher's evidencewas also consistent with MAF's Risk Analysis Procedures.(footnote omitted)This is perhaps unsurprising given the apparent unanimity of the parties belowas to the implications of the singular pollen clause in the Nursery Stock IHS.For example one of the respondents' experts deposed:By including the single statement that, "A prior Import Permit must beobtained from the Permit Officer", the IHS for Nursery Stock effectivelydeferred the requirement for an analysis of the risks associated withimportation of pollen to such time as a request for access was received andan Import Permit required and, by extension, deferred the requirement forconsultation.159 We recite [368] in its entirety in order to place the relevant final sentence in context. Earlierthe Judge had described the effect of cl 2.2.3 to be to leave import conditions for assessment at thetime that an application to import pollen was received: High Court judgment, above n 2, at [211].160 Dr Butcher was the manager of the Plant Imports and Exports Group at MAF, responsible fordecisions about imports and exports of plans and plant products, including nursery stock and fruit.The rationale for the use of such a provision was explained by Dr Butcher forthe Crown:Generally, nursery stock can only be imported where an import permit hasbeen issued under the Nursery Stock IHS (see paragraph 2.2.1.2 underthe Basic Conditions section of the Nursery Stock IHS) The reason weissue import permits rather than putting all the rules for every consignmentin the IHS, is that you cannot predict what every request might be. We usethe permits in order to address the flexibility and variation in the requests weget. Permits also allow the latest information on pests to be included, ormeasures to be applied.However in this Court Mr Hodder submits that, contrary to the finding thatconsultation was "deferred", it was not MAF practice in 2006–2007 to consult onimport permits and it was not practicable to do so. He explains that MAF's policystatement on consultation was a high-level policy statement which was intended to beimplemented by the different groups across the whole of MAF according to theirpractices.On the other hand, while acknowledging, at least implicitly, an obligation toundertake a risk analysis at the permit application stage (the scope of which is said tobe circumstances dependent), Mr Hodder submits that the pollen import permits inissue reflect the formulation of a revised policy in relation to the operation of theregulatory regime. The essence of the appeal, he contends, is that the High Court haderroneously converted public law responsibilities under the Act into a private law dutyof care.Consequently, before addressing the issue of proximity we will first discussthe Crown's contention that the respondents' claims are not justiciable.JusticiabilityAs Professor Todd observes, the principles of negligence must operateconsistently with the doctrine of the separation of powers.161 Todd explains thisconsideration underlies some well-known decisions that seek to distinguish betweencomplaints against public bodies about the broad merits of a decision made in the161 Todd, above n 98, at 175.exercise of a statutory power, and complaints about the manner in which adiscretionary decision has been implemented in practice:162No duty is owed as regards the former, "policy" matters, because the decisionto be made is one for the public body, not the courts. But a duty may beowed in respect of "operational" matters, for the court asks only whether thepolicy has been implemented with care. However, drawing the distinction isdifficult, and more recent decisions tend to focus on the question whether adecision is justiciable, or is essentially of a political character. In these waysthe courts seek to draw a line between their own role in determining privatedisputes and the policy or political role of other branches of government.The proposition that the impugned pre-border conduct is not justiciable was atthe forefront of the Crown's attack on the duty finding. Contending that the decisionnot to include a condition requiring pollination in a PEQ facility was a change in pollenimport policy involving both delegated legislation and regulatory decisions,Mr Hodder challenges the duty finding for failing to apply what he describes as twoimportant points of principle:(a) law making cannot be subject to a duty of care; and(b) border control cannot be subject to a duty of care.163The judgment is criticised for failing to address the first point at all and asbeing erroneous on the second in concluding that the asserted duty of care did notinvolve adjudication on public policy and political considerations.Law making cannot be subject to a duty of careThe Crown perceived the crux of the respondents' case to be thatMAF personnel ought to have created better delegated legislation in the form ofthe Nursery Stock IHS, which would have prohibited the importation of kiwifruitpollen or put in place further restrictions or requirements on such imports.162 At 175 (footnote omitted).163 In written submissions this was described as the principle that the common law has consistentlyrejected a duty of care on public regulators but in oral argument developed as being the bordercontrol functions do not attract a duty of care.It is fair to say that the Crown's depiction of the crux of the respondents' casecould find justification in the pleadings as they stood in the High Court (and in thisCourt until the reformulation in the course of Mr Galbraith's address). Not only wasit asserted that a duty was owed to the respondents to exercise reasonable care whenprocessing, considering and approving import permits, but also that there was anequivalent duty when issuing, amending or revoking an IHS. However, that latterassertion did not appear in the reformulated pleading, it being the respondents'argument that the case concerns negligent assessment and implementation of policiesto manage risk, not an allegation of negligence in relation to the exercise ofa legislative or quasi-legislative power. The decision to grant a specific permit is saidto be a quintessentially operational decision.Nevertheless, proceeding from the premise that an IHS is delegated legislationand immune from suit, Mr Hodder contends that import permits, while different toIHSs in being granted in respect of particular imports, involve substantivedecision-making as to what may be imported into New Zealand. He submits that theyare closer to policy and legislative powers than to the powers of, for example,a building inspector, being the comparator adopted in Holtslag v Alberta in respect ofa decision to issue a product listing approving the use of untreated "pine shakes"(a building material).164Mr Hodder contends that not only an IHS but also import permits issued underan IHS have the force of law. As he puts it: the issue of import permits involved regulatory judgments; and thedevelopment and application of general rules having the force of law, inessence quasi-legislation.We do not accept that submission. The assessment of risk associated with theimportation of risk goods and the formulation of requirements to provide effectivemanagement of such risks is not an activity which is inherently legislative in nature.When such activities are undertaken in the statutory context of the promulgation ofan IHS, it was common ground both below and in this Court that they are immune164 Holtslag v Alberta 2006 ABCA 51, (2006) 265 DLR (4th) 518 at [31].from suit as in effect constituting delegated legislation.165 However that immunestatus flows not from the nature of the activities themselves but from the statutoryprocess prescribed in s 22. We consider that the statutory power is exhausted oncethe IHS has been promulgated. Downstream steps such as the grant of import permits,while envisaged by the IHS, are not part of or an extension of the s 22 jurisdiction.Border control cannot be subject to a duty of careAt first instance the Crown submitted that the respondents' negligence claiminvited the Court to adjudicate on an alleged failure by the Executive to protect thenational border which would require the Court to make a determination as to thecorrect public policy or political decisions to be made, including the level and mannerof resourcing.Addressing this argument the Judge said:[355] These submissions concern the justiciability of the pleaded duty.That is, if a duty of care were imposed, the contention is that it would involvethe Court trespassing into discretionary decisions on the allocation of scarceresources and this is not an appropriate role for a Judge. I do not accept thissubmission. In contrast with, for example, George v Newfoundland andLabrador, the causes of action do not challenge MAF's strategy and approachfor dealing with risk goods. This is not a claim for institutional negligence.The causes of action concern alleged negligence in carrying out the processeswhich MAF had in place. This is similar to the inspector in Givskud who wascarrying out his duties under the Government's policy. The plaintiffs considerthat, had MAF carried out its processes non-negligently, measures would havebeen imposed on commercial pollen imports on the basis of science, inaccordance with the Act and the SPS agreement.[356] This means that imposing a duty of care does not require the Courtto make any judgment about how the border is to be protected and the levelof resources necessary to protect the border. It does not intrude upon thepublic policy and political considerations about that. The issue for the Courtis whether MAF personnel were negligent in carrying out the risk assessmentof a permit application which the Act and MAF's procedures required, orwere negligent when assessing whether the consignment complied with therequirements specified in the relevant IHS or whether it would be unwise torely on the accompanying documentation as required by the Act and MAF'sprocedures.(footnotes omitted)165 High Court judgment, above n 2, at [334(c)] and [368]. The respondents' submission in this Courtcategorised an IHS as a legislative instrument.Mr Hodder challenges those conclusions. Commencing with the propositionthat the adjudicated breaches all relate to the grant of import permits for kiwifruitpollen without a full risk assessment taking place, such as would be required were anew IHS to be created, two points are made:(a) The decision to commission the PHEL Review was part of a widerpolicy to find new, more efficient ways of importing germplasm,including pollen, into New Zealand for breeding purposes to meetdemand.(b) Demand for IHSs has always outstripped supply, there being hundredsof outstanding requests.166 The process is complex and requiresparticular types of human resources. In the relevant period theprioritisation of such requests was decided by a panel comprisingrepresentatives from MAF, the Ministry of Foreign Affairs and Trade,and the Biosecurity Council.The Crown submits that, because of such resourcing constraints, MAF used atriaging process and a "moderated risk analysis procedure" to deal with importpermits. A decision was made about how to allocate scarce resources to particularrisks "which resulted in less scrutiny of import permits than IHSs".From that footing Mr Hodder advances two principal submissions critical ofthe Judge's finding of "process errors". He first submits that such a finding amountedto a collateral attack on the strategy (and resources) used by MAF personnel to managebiosecurity risks. It is said that in order to avoid alleged breaches in the future thestrategy must be changed and a "formal" risk analysis must be undertaken in everycircumstance. For every import request importers must be questioned about what theyare importing and the potential for any contaminants.So far as the clearance process is concerned, he submits that MAF personnelmust be able to rely on statements provided by importers and by overseasNational Plant Protection Organisations (NPPOs) in order for the system as a whole166 See above at [54].to operate. The implications of the judgment are said to be that MAF personnel mayhave to question formal declarations and certifications provided by overseas NPPOs,all in the context of huge volumes of goods coming across New Zealand's border andthe limited resources available.Secondly, and in Mr Hodder's submission perhaps most importantly,the standard of care imposed by the judgment with which to measure the process errorsis said to be incompatible with New Zealand's political decision to commit tothe SPS Agreement's scientific standard. Under New Zealand's internationalobligations a "measure" may not be imposed on a good unless it can be justified byscience. In the absence of scientific justification for measures, the good must be letin. The Crown contends that the effect of the judgment is to reverse this standard sothat MAF personnel will be considered negligent if they allow a good intoNew Zealand that cannot be established with positive scientific evidence to be safe.The Crown's final point is that the national border is the defining feature of thepolitical and legal authority of a nation state167 and the nature of border controldecisions is not one for which there is an appropriate legal yardstick.The respondents' primary rejoinder reiterates the submission that the impugnedconduct occurred at an "operational" level. They contend that the Crown erroneouslycharacterises the High Court's finding of operational or process failures as involvinga collateral attack on MAF's strategy and resourcing. Rather the judgment (and theircase) took MAF's strategy and resourcing as a given and identified errors in theoperational implementation of those policies by MAF and its personnel.In Robinson v Chief Constable of West Yorkshire Police Lord Reed was criticalof Anns v Merton London Borough Council for its importation of public law conceptsand the American distinction between policy and operational decisions into questionsconcerning duties arising under the law of obligations.168 However we share the view167 Referring to Andrew Ladley and Nicola White Conceptualising the Border (Institute of PolicyStudies, Wellington, 2006) at 1–2.168 Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736 at [38],citing Anns v Merton London Borough Council [1978] AC 728 (HL).in Todd on Torts that the distinction may retain relevance in the context of a questionof justiciability:169However, while we can agree that public law concepts should be rejected,arguably there remains room for the policy/operational inquiry as informingthe inquiry into the issue of justiciability. His Lordship went on to recognisethat a public authority's non-liability in omissions cases could be justified onthe application of the general principles of negligence, and that in other casespolicy considerations could have a role to play in determining whetherrecognition of a duty would be just and reasonable. Seemingly, determiningwhether the question before the court is justiciable may sometimes be neededas part of this inquiry.The challenging nature of the task in drawing the line between policy andoperational decisions was highlighted in George v Newfoundland and Labrador:170[154] The question of what constitutes a policy decision protected fromnegligence liability is a difficult one. Governmental policy decisions are notjusticiable and cannot give rise to tort liability. But governments may attractliability in tort where government agents are negligent in carrying outprescribed duties or policies.However in our view the challenge to the justiciability of decisions concerningthe importation of risk goods was essentially resolved so far as pollen was concernedby the decision to include it in the Nursery Stock IHS. As earlier noted difficultiesarose from the economical fashion in which pollen was addressed in that IHS, whichled MAF personnel to the view that they had the power to determine whether aPEQ condition was required. But as we have explained, in our view the requirementfor a minimum three month PEQ period was mandatory pursuant to cl 2.2.1.12.MAF personnel had no discretion to dispense with that requirement.171Perhaps because pollen importations were unusual, the ability to impose additionalconditions was left for determination on a case-by-case basis. However that did nothave the effect of according decisions about additional conditions the status ofgovernment policy.In the context of the law-making issue, the Judge recognised the conflictinginterests that may be at stake where a decision is made on the import of risk goods but169 Todd, above n 98, at 356.170 George v Newfoundland and Labrador 2016 NLCA 24, (2016) 399 DLR (4th) 440.171 See above at [63].noted that differences in views about the acceptable level of risk were resolved byNew Zealand's "appropriate level of protection" setting under the SPS Agreement andthe agreed requirement for restrictive measures to be justifiable on the basis ofscience.172 She then observed:[365] Moreover, MAF was structured to avoid conflicts of this kind indecisions on risk goods. Barry O'Neil, the head of Biosecurity New Zealandat the relevant time, gave evidence that risk analysis was separate fromthe IHS team for good practice reasons. Risk assessors did the riskassessment of the organism. This was purely a technical decision. The IHSteam addressed the measures to mitigate the risk to enable the goods to beimported. The operational staff were given guidance on New Zealand's[appropriate level of protection] through documents such as MAF's 2006Risk Assessment Procedures. There was no political interference in thesedecisions under the Biosecurity Act.(footnote omitted)The functional separation there described appears to relate to the IHS processitself and did not specifically contemplate the postponement of the risk analysis to thedownstream permit stage. Nevertheless the point remains valid that the riskassessment of an organism is a "technical decision", as the Judge observed, which wetake to mean one determined by reference to the organism's profile and potentialeffects, unrelated to economic or political considerations. The Judge was correct inher observation that such decisions do not involve public policy and politicalconsiderations.Whether conditions additional to (but not inconsistent with) those specified inthe IHS are required in relation to a particular proposed importation is an operationaldecision to be made in the context of the import permit application. Like the Judgewe reject the proposition that recognition of a duty of care in relation to theperformance of those functions should be precluded on account of public policy orpolitical considerations associated with the protection of the national border.172 High Court judgment, above n 2, at [363]–[364]. Under the SPS Agreement, governments retainthe right to determine their appropriate level of risk to human, animal and plant life and health(referred to as the Government's "appropriate level of protection"): SPS Agreement, above n 9,preamble.In The Grange Blanchard J commented that a difficulty with a stagedformulation for the recognition of a duty of care in novel situations is that some mattersmay be relevantly assessed at either stage or may even need to be examined at both.They cannot always be pigeonholed into one or the other.173 That observation, apt inrespect of the widely ranging submissions summarised above, is reflected in the factthat the resourcing implications of the recognition of the challenged duty is a matterwhich we revisit when we address the final stage of policy in the sense of"externalities"174 as distinct from government policy.Conclusion on justiciabilityWe would have rejected the Crown's argument that the courts are precludedfrom entertaining claims of a breach of a duty of care on the part of MAF personneleither on the basis of asserted law-making or border control. We turn to considerwhether such a duty should have been recognised.Issue 3(a): Did the High Court err in finding that MAF personnel owed a dutyof care to Strathboss and some members of the Strathboss class to takereasonable skill and care in their actions or omissions prior to the New ZealandPsa3 incursion to avoid physical damage to property, and to take care to avoidloss consequential on that damage to property?Relevant principlesThe role of the concept of a duty of care in the law of negligence is to delineatethe circumstances in which a careless act or omission which causes damage will beactionable. A duty of care will exist where the relationship between an actor A anda party B who sustains a loss is such that the law imposes upon A a duty to take careto avoid or prevent such loss.175While negligence claims are habitually analysed compartmentally,176the critical question is a composite one, whether the scope of the duty of care in thecircumstances of the case is such as to embrace damage of the kind the claimant claims173 The Grange, above n 147, at [149].174 At [156].175 Murphy v Brentwood District Council [1991] 1 AC 398 (HL) at 486 per Lord Oliver.176 Whether there was (a) a duty of care, (b) breach of that duty, and (c) damage caused by the breachof duty.to have suffered.177 Hence it is never sufficient to ask simply whether A owes B a dutyof care. It is always necessary to determine the scope of the duty by reference to thekind of damage from which A must take care to save B harm.178 Furthermore, while itis conventional to examine the duty of care question without reference to breach,as the majority in Couch v Attorney-General (Couch (No 1)) observed sometimes thenature of the breach can be relevant to the scope of the duty.179Lord Steyn observed in Gorringe v Calderdale Metropolitan Borough Councilthat the subject of negligence and statutory duties and powers is one of greatcomplexity and an evolving area of the law. He described it as a subject on which anintense focus on the particular facts and on the particular statutory background, seen inthe context of the social welfare state, is necessary.180As originally pleaded the duty of care which the respondents asserted wasowed to them was a duty by MAF personnel to exercise reasonable care and skill whenundertaking their functions and responsibilities under the Act. As refined in the courseof argument,181 the primary pre-border duty claimed is an obligation to undertakea risk assessment before issuing an import permit in respect of pollen which wasintended for use, not for breeding, but for a new purpose, the commercial pollinationof orchards by spraying.The New Zealand courts had not previously ruled on the existence of sucha duty. It was common ground below that the claim fell to be determined by referenceto the principles governing the recognition of novel duties of care explained bythe Supreme Court in The Grange.182 While recognising that New Zealand courts,like those in other common law jurisdictions, have struggled to formulate an entirely177 Calvert v William Hill Credit Ltd [2008] EWCA Civ 1427, [2009] Ch 330 at [45]. Indeed in HomeOffice v Dorset Yacht Co Ltd [1970] AC 1004 (HL) at 1052, Lord Pearson suggested that it maybe artificial and unhelpful to consider the question as to the existence of a duty of care in isolationfrom the elements of breach of duty and damage, a passage noted by Cooke P in Fleming vSecurities Commission [1995] 2 NZLR 514 (CA) at 520.178 Caparo Industries plc v Dickman [1990] 2 AC 605 (HL) at 627 per Lord Bridge.179 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 [Couch (No 1)] at [83].180 Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057at [2], cited in the High Court judgment, above n 2, at [284] before the Judge turned to considerexamples which might provide guidance by analogy at [286]–[326].181 See above at [150]–[153].182 The Grange, above n 147.satisfactory methodology,183 the Supreme Court there elaborated on the staged inquirycomprising foreseeability of harm, proximity of relationship and policyconsiderations.The Supreme Court in The Grange considered that foreseeability is at best ascreening mechanism to exclude claims that must obviously fail because no reasonableperson in the shoes of the defendant would have foreseen the loss. The law regardsthe loss as such an unlikely result of a defendant's act or omission that it would not befair to impose liability.184 Blanchard J185 elaborated on the further stages in thisway:186[158] Assuming foreseeability is established in a novel situation, the courtmust then address the more difficult question of whether the foreseeable lossoccurred within a relationship that was sufficiently proximate. This isusually the hardest part of the inquiry, for as Lord Bingham said in Customsand Excise Commissioners v Barclays Bank plc, the concept of proximity is"notoriously elusive". He was speaking of claims for economic loss but, inNew Zealand at least, because of our no-fault accident compensationscheme, the majority of novel claims are of this character and those that arenot will be sufficiently unusual as to raise comparable difficulties.Lord Oliver said in Alcock v Chief Constable of South Yorkshire that theconcept of proximity is an artificial one which depends more on the court'sperception of what is a reasonable area for the imposition of liability thanupon any logical process of analogical deduction. An examination ofproximity requires the court to consider the closeness of the connectionbetween the parties. It is, to paraphrase Professor Todd, a means ofidentifying whether the defendant was someone most appropriately placedto take care in the avoidance of damage to the plaintiff.[159] Richardson J has observed that the concept of proximity enables thebalancing of the moral claims of the parties: the plaintiff's claim forcompensation for avoidable harm and the defendant's claim to be protectedfrom an undue burden of legal responsibility. A particular concern will bewhether a finding of liability will create disproportion betweenthe defendant's carelessness and the actual form of loss suffered bythe plaintiff. Another concern is whether it will expose the defendant andothers in the position of the defendant to an indeterminate liability. The latterconsideration may, however, be better examined at the second stage of theinquiry: whether the finding of a duty of care will lead to similar claims fromother persons who have suffered, or will in the future suffer, losses of thesame kind, but who may not presently be able to be identified.183 At [147].184 At [157].185 Delivering the reasons of himself, McGrath and William Young JJ.186 In the High Court the Crown did not contest, and the Judge accepted, the respondents' contentionthat they readily passed that screening mechanism: High Court judgment, above n 2, at [348].[160] In a relatively small number of cases, at the final stage of the inquirythe court will find no duty of care exists notwithstanding that the loss wasforeseeable and the relationship sufficiently proximate. It will do so becausea factor or factors external to that relationship (perhaps indeterminateliability) would make it not fair, just and reasonable to impose the claimedduty of care on the defendant. At this last stage of the inquiry the court looksbeyond the parties and assesses any wider effects of its decision on societyand on the law generally. Issues such as the capacity of each party to insureagainst the liability, the likely behaviour of other potential defendants inreaction to the decision, and the consistency of imposition of liability withthe legal system more generally may arise.(footnotes omitted)Blanchard J noted that the courts generally approach claims about allegedlytortious omissions with more caution than they do acts taken by a defendant, citingDorset Yacht and Couch (No 1).187 In the latter Tipping J for the majority observedthat the law has traditionally been cautious about imposing a duty of care in cases ofomission as opposed to commission, in cases where a public authority is performing arole for the benefit of the community as a whole, and in cases where it is the actionsof a third party rather than those of the defendant that are the immediate cause ofthe loss or harm suffered by the plaintiff.188Nevertheless the general principle, as Elias CJ explained in The Grange, is thatpublic authorities are liable when they cause harm to others on the same basis asprivate individuals are liable (except where such liability would be inconsistent withthe statutory scheme).189 A number of recent judgments of the United KingdomSupreme Court have emphasised the converse proposition that, like private individualsand bodies, public authorities generally have no duty of care to prevent the occurrenceof harm, the reason being that the common law does not generally impose liability forpure omissions. In Robinson v Chief Constable of West Yorkshire Police Lord Reeddrew attention to the following summary of the "omissions principle" by Tofaris andSteel, in their article "Negligence Liability for Omissions and the Police":190187 The Grange, above n 147, at [167], n 223, citing Home Office v Dorset Yacht Co Ltd, above n 177,at 1060; and Couch (No 1), above n 179, at [80].188 Couch (No 1), above n 179, at [80].189 The Grange, above n 147, at [27].190 Robinson v Chief Constable of West Yorkshire Police, above n 168, at [34], citing Stelios Tofarisand Sandy Steel "Negligence Liability for Omissions and the Police" (2016) 75 CLJ 128 at 128(footnote omitted).In the tort of negligence, a person A is not under a duty to take care to preventharm occurring to person B through a source of danger not created by Aunless (i) A has assumed a responsibility to protect B from that danger,(ii) A has done something which prevents another from protecting B fromthat danger, (iii) A has a special level of control over that source of danger,or (iv) A's status creates an obligation to protect B from that danger.These principles have most recently been considered by the United KingdomSupreme Court in N v Poole Borough Council where Lord Reed (for the Court)summarised the position in this way:191[65] It follows (1) that public authorities may owe a duty of care incircumstances where the principles applicable to private individuals wouldimpose such a duty, unless such a duty would be inconsistent with, and istherefore excluded by, the legislation from which their powers or duties arederived; (2) that public authorities do not owe a duty of care at common lawmerely because they have statutory powers or duties, even if, by exercisingtheir statutory functions, they could prevent a person from suffering harm;and (3) that public authorities can come under a common law duty to protectfrom harm in circumstances where the principles applicable to privateindividuals or bodies would impose such a duty, as for example wherethe authority has created the source of danger or has assumed a responsibilityto protect the claimant from harm, unless the imposition of such a duty wouldbe inconsistent with the relevant legislation.ProximityAlthough finding that all the respondents passed the screening mechanism offoreseeability,192 the Judge considered that it was possible to distinguish between thevarious layers of the kiwifruit industry.193 Defining the term "property rights" to coverall those who may have a sufficiently direct or closely associated interest in the vinesor crop that the law will recognise, the Judge concluded that:[429] For these reasons I consider the alleged duty of care under the firstcause of action is supported by the New Zealand cases in relation to those whohad "property rights" in the kiwifruit vines or crops affected by Psa3 (eitherbecause they were infected or because they were at risk of infection and weretherefore treated as though they were infected). I consider the alleged duty ofcare under the first cause of action is not supported by the New Zealand casesfor those who did not have "property rights" in the kiwifruit vines or cropsaffected by Psa3. 191 N v Poole Borough Council [2019] UKSC 25, [2019] 2 WLR 1478.192 High Court judgment, above n 2, at [348].193 At [408].Hence the Judge ruled that proximity was established as between MAF andthose in the Strathboss class (including Strathboss itself) who had "property rights" inthe kiwifruit vines and their crops who were or were likely to be infected by Psa3(or who were treated as though they were infected) but not in relation to Seeka in itscapacity as a PHO.194The finding of proximity between MAF personnel and the relevant kiwifruitgrowers is challenged on four grounds:(a) the Act is inconsistent with the imposition of a duty of care;(b) the proximity analysis failed to consider whether a close and directlegal relationship existed between any member of MAF personnel andthe respondents — no close and direct legal relationship existed;(c) MAF personnel were neither the direct cause, nor the primary source,of the alleged harm; and(d) the circumstances in which proximity might be arguable at trial,where a third party has caused harm (as explained in Couch (No 1)),did not exist in this case.Is the Biosecurity Act 1993 inconsistent with the imposition of a duty of care?Mr Hodder first submits that the statutory context is incompatible withthe alleged duty of care because the Act's objectives are to benefit the widest conceptsof the public good, there is no provision in the Act that shows that one of its purposesis to protect an individual or class of individuals from a particular risk, and Parliamentdid not legislate for a "zero-risk" system, instead the focus being on effectivelymanaging risks.195 He submits that the objective of protecting the widest notions ofthe public good, together with the system of managing (not precluding) risk,194 At [434].195 Contrast is drawn with the statutory language of the Hazardous Substances and New OrganismsAct, which explicitly adopts the precautionary approach. Attention is drawn to NationalBeekeepers' Assoc of New Zealand v Chief Executive of the Ministry of Agriculture and Forestry[2007] NZCA 556 at [29] and [50].creates significant scope for MAF personnel to have conflicting duties which must bebalanced, rather than owing duties to any one set of individuals.Mr Hodder then submits that the express (and detailed) provision in the Act forcertain types of compensation indicates that compensatory damages in negligence arenot contemplated. He takes issue with the High Court's finding that s 162A does notsay anything about whether there is a private law remedy for loss suffered due to actsor omissions of MAF or MAF personnel, submitting that s 162A(4)(b) excludescompensation "[i]n respect of a loss suffered before the time when the exercise of thepowers commenced". As the obvious loss which would occur before response powerswere exercised is the loss caused by the actual incursion itself, it follows that s 162Ais a statutory exclusion addressed, in part, to taxpayer compensation for the type ofloss alleged in this case.Mr Hodder suggests that the judgment seemed to start from the position that aprivate law duty of care should be owed unless the statute says otherwise, focusing inparticular upon [373] of the judgment:[373] This means that, although the Biosecurity Act has broad scope andresponsibilities aimed at the general public good, that does not exclude aprivate law duty. It depends on whether circumstances have arisen whichgive rise to proximity between MAF's actions or inactions and an individualor identifiable and sufficiently delineated class.He submits that was the wrong approach: rather, in order to establish thatan individual exercising statutory functions has a private law duty of care, the statuteitself must provide positive evidence for the duty of care.Precisely what was contemplated by "positive evidence" for the existence ofa duty of care in the statute itself was not developed in argument. However, if it wasintended to convey that as a prerequisite to the recognition of a duty of care the statutemust contain a specific indicator of the existence of a duty, such as in the Building Act2004, we are unable to agree. Such a view would place an unnecessary gloss on thecurrent approach as reflected in the observations of Tipping J and the minority inCouch (No 1) referred to above.196196 See Couch (No 1), above n 179, at [53], [55] and [111].Nor do we consider that the propositions at [373] are fairly susceptible tocriticism, certainly when read in the context of related paragraphs in the judgment.197[373] must be viewed against the backdrop of the Judge's discussion of the principlesrelating to public authorities, in particular at [265]. Specific reference is there madeto Lord Steyn's statement in Gorringe:198[A]gainst the background of a statutory duty or power, a basic question iswhether the statute excludes a private law remedy?The Judge's adoption of that approach was not in error. Her consideration of thecompensation provisions in that light was appropriate.Turning to Mr Hodder's second submission, the Act as originally enactedcontained a number of provisions relating to compensation (ss 76(i)–(j) and 86(in pt V, Pest Management) and ss 149, 150(3)(c), (d) and (e) and 153 (in pt VII,Exigency Actions)) and one prohibition on the payment of compensation in s 127(3)(in the Administration Provisions, pt VI). The issue of compensation was revisited inthe Biosecurity Amendment Act 1997 which inter alia introduced s 162A(into the Miscellaneous Provisions in pt IX) and repealed s 127(3).Section 162A stated:199162A Compensation(1) Where—(a) Powers under this Act are exercised for the purpose of themanagement or eradication of any organism; and(b) The exercise of those powers causes verifiable loss as a resultof—(i) The damage to or destruction of a person's property; or(ii) Restrictions, imposed in accordance with Part 6 or Part7, on the movement or disposal of a person's goods,—that person is entitled to compensation for that loss.(2) The compensation payable under this section must be of such anamount that the person to whom it is paid will be in no better or197 See also High Court judgment, above n 2, at [441], where the Judge observed that the question isnot whether an intention can be gathered to create a private law remedy from the statutoryprovisions and structure but whether the statute excludes a private law remedy.198 Gorringe v Calderdale Metropolitan Borough Council, above n 180, at [3].199 This section was repealed and a new s 162A substituted by the Biosecurity Law Reform Act 2012,s 74.worse position than any person whose property or goods are notdirectly affected by the exercise of the powers.(3) Compensation payable by a Minister or by a chief executive ispayable from money appropriated by Parliament for the purpose.(4) Compensation must not be paid under this section to any person—(a) In respect of a loss in relation to unauthorised goods oruncleared goods; or(b) In respect of a loss suffered before the time when theexercise of the powers commenced; or(c) Who has failed to comply with this Act or regulations madeunder this Act and whose failure has been serious orsignificant or has contributed to the presence of theorganism or to the spread of the organism being managed oreradicated.(5) Any dispute concerning the eligibility for, or amount of,compensation must be submitted to arbitration and the provisions ofthe Arbitration Act 1996 apply.(6) Nothing in this section applies to any loss suffered by any person asa result of the exercise of powers under this Act to implement a pestmanagement strategy.With reference to the 1997 amendments the Primary Production Committeereport stated:200Proposed new clause 90A includes new provisions for compensation toreplace the provisions in sections 127(3), 149, 150(3)(c), (d) and (e), 153 and164 of the Act. The new clause makes it clear when compensation may bepayable and also sets out those situations where compensation will not bepayable. Compensation for the use of powers to implement a [pestmanagement strategy] is not affected by this new provision. The Forest Health Advisory Committee, the New Zealand Dairy Board,the New Zealand Pork Industry Board and Federated Farmers consideredthere is a need for consistent compensation provisions when powers inthe Act are used outside of a [pest management strategy]. We consider thatclause 90A meets this need. Compensation is to be provided for lossescaused by government exercising powers to manage or eradicate unwantedorganisms. The rationale for the government paying compensation is toencourage the reporting of unwanted organisms so that they can beeradicated. The level of compensation payments and the cost of eradicationprovide government with a strong incentive to commence eradication of apotentially damaging unwanted organism as soon as possible after itspresence has been reported.The Judge summarised the effect of s 162A in this way:201200 Biosecurity Amendment Bill (No 4), above n 157, at xxiii.201 High Court judgment, above n 2, at [446].This provides for compensation when powers are exercised under the Act forthe purpose of eradicating or managing an organism. It applies where thosepowers cause loss as a result of damage to or destruction of a person'sproperty, or where restrictions are imposed on the movement or disposal ofgoods under Part 6 (which covers such matters as detaining or seizing goods,putting in place road blocks or declaring restricted or controlled places) orPart 7 (which is concerned with declaring biosecurity emergencies).The provision is time bound: a claim must be made within a year.Having referred to the Primary Production Committee commentary the Judgethen noted that compensation under s 162A is limited to losses from the exercise ofpost-border powers and is concerned with the exercise of powers once an unwantedorganism is present in New Zealand.202 Rejecting the Crown submission thats 162(4)(b) is a statutory exclusion addressed to the loss claimed here, the Judge said:[451] In my view, this provision is about when the Crown is obligedto pay compensation. It is intended to be comprehensive about theextent of compensation and the circumstances in which it will be paidwhen powers are exercised "for the purposes of the management anderadication of any organism". It does not say anything about whetherthere is a private law remedy for loss suffered due to acts or omissionsof MAF or MAF personnel which do not involve the exercise of suchpowers because the section is not about this.We accept the respondents' submission that s 162A provides for compensationonly in the narrow circumstances specified and that the Crown's contention overstatesthe effect of the provision. Hence we endorse the Judge's ultimate conclusion:[453] I therefore accept the defendant's submission that Parliamenthas turned its mind to when there will be a statutory entitlement tocompensation. Those provisions apply irrespective of how the pestcame to be in New Zealand and whose fault that may have been.However, as the plaintiffs submit, the provisions are of narrow ambit.They do not address loss suffered as a result of MAF negligence incarrying out its biosecurity functions pre-border and at the border.I agree with the plaintiffs that the Act leaves this to be addressedthrough civil claims in negligence in the ordinary way if a claim canbe made out, consistent with ss 163 and 164 which contemplate civilliability, but subject to their scope.(footnote omitted)The Judge deferred consideration of the potential explicit exclusion of a dutyof care by s 163 to the final stage of the judgment at pt 7 which engaged with202 At [449].the Crown immunity arguments. We have previously addressed immunity in Issue 2above where we:203(a) agreed with the Judge's conclusion on the meaning of the phrase"without reasonable cause" in the proviso; and(b) disagreed with the interpretation that s 163 does not apply to the actsor omissions of MAF personnel undertaking administrativeresponsibilities on behalf of the Minister at the pre-border stage.For those reasons we have held that the Crown's appeal succeeds because the variousMAF personnel alleged to owe a duty of care to the respondents are immune from suit.Hence there could be no vicarious liability for the Crown in respect of those personnel.However, for the purposes of the duty of care analysis it is necessary to proceedon the footing that those conclusions may not be upheld. That involves making dualassumptions: first, that s 163 applies only to inspectors, authorised persons, accreditedpersons or other persons formally appointed under the Act; secondly that"reasonable cause" is synonymous with "reasonable care".The implication of the first assumption is that a duty of care is not excluded inrespect of persons who are not specifically identified in s 163. For present purposesthat comprises the MAF personnel who participated in the decision to issueKiwi Pollen's 2007 and 2009 import permits.An absence of a close and direct legal relationshipEmphasising that proximity is concerned with close and direct legalrelationships, Mr Hodder observes that there was no physical nearness as betweenMAF personnel (based in Wellington and Auckland) and Strathboss (based in Te Puke)and there was no physical presence on, or oversight by, MAF personnel of Strathboss'premises or activities. There was neither a contractual or licensing arrangementbetween the parties, nor a professional or personal relationship. Contrast is drawn203 See above at [124]–[141].with both D Pride & Partners (a firm) v Institute for Animal Health204 and Weller &Co v Foot and Mouth Disease Research Institute205 where the defendants had broughtfoot and mouth disease virus to a particular area for its own research purposes, andGivskud v Kavanaugh206 where a government inspector had been specifically askedby a plaintiff to test the seeds of a seed seller but declined to do so.Consequently it is submitted first that the Judge's proximity analysis failed toconsider whether a close and direct legal relationship existed between any member ofMAF personnel and the respondents, and second that no such relationship existed.Consistent with that approach Mr Hodder accepted the proposition put from the Benchthat there would likely be proximity between the relevant MAF personnel andKiwi Pollen, it being an applicant for a permit for the importation of and clearance ofthe June 2009 consignment.The point is also made that vulnerability is not a sufficient test for the closeand direct relationship required in this context. The majority judgment inCouch (No 1) makes it clear that to be determinative vulnerability must be related tospecial risk circumstances which truly distinguish the position of the plaintiffs inrelation to the risk.207We accept the respondents' submission that proximity is concerned with a legalconcept of relationship and "neighbourhood", the court being required to consider thecloseness of the connection between the parties.208 We do not consider that there wasany error in the approach of the Judge who commenced her analysis by citing thewell-known extract from the judgment of Lord Atkin in Donoghue v Stevenson.209Neighbours in law were identified as those:204 D Pride & Partners (a firm) v Institute for Animal Health [2009] EWHC 685 (QB).205 Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569 (QB).206 Givskud v Kavanaugh (1990) 109 NBR (2d) 65 (NBQB).207 Couch (No 1), above n 179, at [122]–[124]. Reliance was also placed on other biosecurity casessuch as Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, (2002) 211 CLR 540; and RegentHoldings Pty Ltd v State of Victoria [2013] VSC 601.208 Referring to The Grange, above n 147, at [158].209 High Court judgment, above n 2, at [236], citing Donoghue v Stevenson [1932] AC 562 (HL) at580. so closely and directly affected by my act that I ought reasonablyto have them in contemplation as being so affected when I amdirecting my mind to the acts or omissions which are called inquestion.That passage was quoted by Elias CJ in Couch (No 1).210 It followed close onthe heels of reference to the observation of Gault J in Wellington District Law Societyv Price Waterhouse that proximity between defendant and plaintiff is "a broad conceptnot confined to the closeness of the relationship".211 The point was usefully reiteratedby Lord Atkin in Donoghue where, referring to a passage from Le Lievre v Gould,212he said:213I think that this sufficiently states the truth if proximity be not confined tomere physical proximity, but be used, as I think it was intended, to extend tosuch close and direct relations that the act complained of directly affectsa person whom the person alleged to be bound to take care would knowwould be directly affected by his careless act.We do not accept the proposition that proximity is confined to what the Crownsubmission describes as "[a]n actual relationship", such as that betweenMAF personnel and Kiwi Pollen as an import permit applicant. In our view thecombination of factors identified in the judgment reflected the intensely fact specificnature of the proximity inquiry. Those factors, which amply supported the conclusionthat the requisite relationship embraced New Zealand kiwifruit growers generally,included:(a) knowledge of MAF personnel that kiwifruit was a key export crop forwhich border security was of real importance;(b) knowledge that Psa was a pest;(c) the difficulty in containment of the disease coupled with the fact thatkiwifruit growers in New Zealand are highly concentratedgeographically;210 Couch (No 1), above n 179, at [50].211 Wellington District Law Society v Price Waterhouse [2002] 2 NZLR 767 (CA) at [42].212 Le Lievre v Gould [1893] 1 QB 491 (CA) at 504.213 Donoghue v Stevenson, above n 209, at 581.(d) the operational control exercised by MAF personnel at boththe pre-border (import permit approval) and border (inspection) stages;(e) the inability of growers to take steps to reduce border security risk; and(f) hence the inevitable reliance upon MAF personnel to manage andcontrol risks to the industry and the growers' particular vulnerability tothe consequence of a failure to manage and control those risks.MAF personnel neither direct cause nor primary source of harmThis challenge focuses first on the Judge's inclusion as a feature supportinga duty of care the fact that those having property rights in kiwifruit vines or crops hadsuffered physical damage from harm "directly caused" to their property.214 Mr Hodderpoints out that the direct harm to kiwifruit growers' properties was caused byKiwi Pollen through its application of pollen or anthers waste, infected with Psa3, toeither the Olympos or Kairanga orchards. Any harm caused by MAF personnel(which was disputed) was indirect, such personnel being in a similar position to theclassification society in Marc Rich & Co AG v Bishop Rock Marine Co Ltd.215The reasons for the House of Lords' conclusion that the society did not owe a duty tocargo owners in respect of a survey performed on a damaged ship included the factthat no direct physical loss had been caused by the society.Mr Hodder also takes issue with the Judge's view that the conduct ofMAF personnel in considering and granting the import permit applications andclearing the importations were positive acts carried out negligently and therefore nota classic case of omission.216 He submits that Michael v Chief Constable of SouthWales Police had been inappropriately distinguished on the basis it was an omissionscase, contending that it is possible in almost any series of events to find both omissionsand positive acts.217 A more helpful inquiry is said to be "who was the primary sourceof the risk?" He submits the correct answer here is the importer, Kiwi Pollen, who had214 High Court judgment, above n 2, at [495(a)].215 Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 211 (HL).216 High Court judgment, above n 2, at [376].217 Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732.previously told MAF personnel that it was importing only pollen (no mention wasmade of plant material) and who did not contact MAF personnel when, instead ofpure pollen, a consignment of anthers was received.Kiwi Pollen was just one of thousands of entities that import goods intoNew Zealand every day, each of whom has made a choice to do so and ultimately hascontrol over the use of the goods. By contrast, the granting of import permits is not avoluntary intervention by MAF personnel into a field of activity. Rather they arecharged with managing the border under the Act in the context of the internationalobligation under the SPS Agreement to allow goods into New Zealand absent ascientific justification not to do so.Mr Hodder submits that this claim is in substance a claim of a duty to preventharm for which others, the importers, are primarily responsible. It is not fair, just orreasonable to hold MAF personnel morally culpable (the ultimate foundation ofnegligence liability) for the Psa3 incursion on the ground that they failed to prevent athird party from bringing a dangerous good into New Zealand.We agree with the respondents that the Judge did not make an erroneousfinding that MAF personnel directly harmed the respondents when they obviously didnot. As they explained, the Judge was simply drawing a distinction between casesinvolving physical damage to property (where courts have readily imposed duties ofcare) and cases involving economic loss (where courts have been less willing to doso).We do not accept that the Judge erred in distinguishing Michael as being anomissions case. The present case is not one where a public authority had powers tointervene and failed to do so. On the contrary, and as the respondents argued,MAF personnel were involved in creating the risk and they had direct control over thatrisk (through their ability to control the entry of risk goods into New Zealand albeitwithin the context of the SPS Agreement). Developing the point noted at [225] above,the Judge recognised that the tasks with which the MAF personnel were charged,in deciding whether to grant the Kiwi Pollen application and whether the June 2009consignment should be cleared, were positive actions carried out allegedly negligently.The Judge stated:[377] MAF's omissions in this case are part of wider positive conduct.They do not engage the concerns associated with the omissions principle.Nevertheless the direct cause of the loss was a bacterial pathogen in risk goodsimported by a third party (Kiwi Pollen). As was said in Robinson, generallythere is no liability for failing to prevent harm caused by other people or bynatural causes. It is therefore appropriate, by analogy with cases involvingthird parties who have caused harm, to consider the extent to which MAF hadcontrol over the risk.(footnote omitted)Furthermore as the respondents submit, the courts have routinely recognisedduties for failing to prevent harm caused by third parties. In Dorset Yacht the primarysource of risk was the borstal trainees (not the Home Office employees).In Couch (No 1) it was Mr Bell (not the parole officer). In the building inspectioncases the primary sources of risk were the building, the environment and the builder(not the inspector). The respondents emphasise that in none of these familiar examplesdid the existence of an external source of risk not within the defendant's control meanthat the defendant could not owe duty of care.218Couch (No 1)Following the path foreshadowed at [377] of the judgment,219 the Judgeproceeded to analyse the extent of MAF's control over risk and the reliance on it byothers. Noting the view of the majority in Couch (No 1) that, where a duty is foundedon a public authority's power to control a risk (in that case the risk of a third party) ina way which would have prevented the harm, it is also necessary to consider therelationship between the defendant and the plaintiff, the Judge stated:[401] The existence of an identifiable person or group that is foreseeablysubject to a special and distinct risk therefore provides the necessaryconnection (proximity) between a defendant and a plaintiff when a defendantis exercising powers which are for the public good.218 We note that we construe the submission in this way, although the respondents' writtensubmissions refer to "an external source of risk within the defendant's control".219 See above at [229].Consequently the Judge concluded that, in line with Couch (No 1)220 therelevant questions were:221(a) what MAF knew or ought to have known about the biosecurity risks ofpollen; and(b) whether the respondents were a distinct and identifiable group likely tobe especially within the foreseeable risk.The Crown challenges both the quoted proposition above and the invocationof Couch (No 1), arguing that the Judge had side-stepped the caution in Michael andRobinson regarding the failure of protective systems set up from public resources.It contends that what Couch (No 1) requires is:(a) there was a clearly apparent risk;(b) MAF had control over the immediate wrongdoer; and(c) Strathboss was a member of a sufficiently delineated class so as to beat special risk (ie was particularly vulnerable to suffering harm of therelevant kind).Mr Hodder submits that the Psa3 incursion was not a clearly apparent risk inthe sense discussed in Couch (No 1) where the relevant probation officer knew thatMr Bell was a violent offender with a history of distinctively gratuitous and randomviolence when undertaking robbery. By contrast the risk of Psa3 presented bykiwifruit pollen in April 2009 did not come close to that threshold. The propositionthat MAF ought to have known about the biosecurity risks of pollen was challenged,in particular on the ground that until May 2010 nobody knew that live cells of Psacould be associated with pollen.220 Couch (No 1), above n 179, at [85].221 High Court judgment, above n 2, at [401].Mr Hodder further submits that the coexistence of foreseeability of risk and apower to avert harm from the risk does not establish a duty of care. That is not whatthe case law means when it speaks of "control". Significantly Couch (No 1) andDorset Yacht are part of a narrow class of cases where the defendant had prior lawfulphysical custody of the active injurer. He submits that given the conditions on whichthe 2009 permit was issued it was not clear that Ms Hamlyn, the managing director ofKiwi Pollen, was in possession of unauthorised goods or that she knew she was.However, irrespective of her state of mind, the goods were cleared on the basis of(at least) misleading and incomplete information provided by the importer.But MAF personnel rely and have to rely on information that importers provide asbeing correct.We do not accept the Crown's characterisation of the judgment as"side-stepping" the reasoning in Michael and Robinson. The Judge discussed thosecases, the omissions principle and its exceptions. The Judge concluded that,as explained in Robinson, Michael is indeed an omissions case which isdistinguishable from the present because of the alleged negligent actions ofthe MAF personnel.We agree with the respondents that Strathboss and other kiwifruit growers werenot, as the Crown categorises them, simply "part of the general population ofNew Zealand primary producers that [is] subject to biosecurity risks". On the contraryas kiwifruit growers they were a class specifically at risk from the introduction ofa kiwifruit pathogen. As the respondents pertinently observe, a notable omission fromthe Crown's submission is the Judge's observation:[408] In my view it is possible to distinguish between the variouslayers of the kiwifruit industry. As the defendant acknowledges in hissubmissions, the kiwifruit orchard growers are the most clearlyidentifiable class of persons who could be foreseen to be adverselyaffected by the relevant acts or omissions in allowing kiwifruit pollento be imported. When Kiwi Pollen made its first request to importActinidia pollen on 23 November 2006, it advised "[t]he pollen willbe used for pollinating kiwifruit orchards in New Zealand". MAF wasalso advised that Kiwi Pollen had not imported kiwifruit pollen before— so MAF also knew this would be the first time pollen imported byKiwi Pollen would be applied to New Zealand kiwifruit orchards.Kiwifruit orchardists were the clearly apparent class of persons whoseproperty (the kiwifruit vines and their crop) would be directly harmedif the pollen contained pathogens. The consequences beyond thatimmediate harm is at least one step or more removed.We also accept that the law does not require MAF personnel to have specificknowledge of each member of the class: knowledge of the class itself is sufficient.222The undoubted absence of control over Ms Hamlyn does not avail the Crown.The judgment rests on the premise that MAF personnel had control over what riskgoods may be imported and on what conditions.223 The Judge viewed the power ofMAF personnel to control the risk (pathogens on plant imports) as comparable tothe Probation Service's power to control a parolee which involves (through the ParoleBoard) deciding whether the person incarcerated may be released on parole and onwhat conditions.224 Subject to compliance with the requirements of the Nursery StockIHS, we agree with that analysis.At the pre-border stage MAF personnel could not of course have actualphysical custody of the proposed consignment because it has yet to arrive. We do notconsider that custody is a prerequisite, at least at the pre-border stage. The decision atthat earlier point, including the nature of any quarantine requirements,will circumscribe the permission to import the June 2009 consignment and how itwould be managed on entry.Conclusion on proximity of relationshipThe focus of the respondents' duty argument before us concerns the omissionof a risk assessment in relation to the intended use of the imported pollen forcommercial kiwifruit pollination. The Crown's case tends to focus on the point thatthe import permits did not include a specific condition requiring PEQ, arguing that theterms of the permits reflected a policy revision which was not amenable to a privatelaw duty of care. However, as we have explained, we consider that the effect ofcl 2.2.1.12 was that a minimum three month PEQ condition was mandatory.225MAF officials were not entitled to ignore that requirement notwithstanding that it was222 Couch (No 1), above n 179, at [112] and [117].223 High Court judgment, above n 2, at [406].224 At [407].225 See above at [63].inconsistent with the proposed use of the June 2009 consignment for commercialpollination. However the failure to observe the mandatory PEQ condition does notpreclude the recognition of a duty of care in respect of the discharge of statutoryfunctions in relation to the importation of kiwifruit pollen for a proposed new mannerof use.Our conclusion at this stage of The Grange framework would have been thatin respect of the decision to grant an import permit for pollen to be used in thecommercial pollination of kiwifruit orchards without first undertaking a riskassessment there would have been sufficient proximity between the relevant MAFpersonnel and, at the least, the Strathboss class who had "property rights".The question whether a wider class of plaintiff should have been entertained isaddressed in our discussion of policy and the cross-appeals.PolicyThe Crown advanced three distinct propositions in support of the argument thata duty of care was negated for policy reasons:(a) indeterminate and disproportionate liability;(b) conflicting interests and regulatory decisions; and(c) incompatibility with the public law framework for accountability.Indeterminate and disproportionate liabilityIn the High Court the Crown submitted that a duty of care would exposethe Crown to liability of an indeterminate amount, to an indeterminate class for anindeterminate time:226 that, if ever there was a case in which the spectre of unlimitedliability compelled a finding that there was no duty of care, it was the present one.227The respondents' proposition that the duty alleged was more specific was portrayed as226 A re-ordering of the phrase coined by Cardozo CJ in Ultramares Corp v Touche 174 NE 441(NY Ct App 1931) at 444 and adopted by Richardson J in Fleming v Securities Commission,above n 177, at 533.227 High Court judgment, above n 2, at [455].advancing a duty in a narrow "situational" (or backward-looking) manner. The Crownsubmitted that at its core the growers' claim was one of liability for failure to protecttheir economic expectations against the adverse consequence of a biosecurity riskcrossing the border and being realised. Such liability involved the potentialindemnification of participants in any primary industry against such consequences andthus quite enormous levels of damages.228 A foot and mouth disease incursion wascited as a hypothetical example.The Judge acknowledged the force of the argument:[461] I accept that, if a duty of care is imposed in this case, it wouldpotentially apply to other biosecurity incursions for which MAF's negligencecould be shown. If all the economic consequences of such incursions were tobe shouldered by the Crown, this could give rise to very large damages claims.The defendant considers that if the plaintiffs' claim here succeeds in full, quiteenormous levels of damages would be payable. It says the amounts claimed,for example, well surpass the entire 2009/10 appropriation forVote Biosecurity (an amount of $185.6m). Other incursions in otherindustries may give rise to even greater losses. On the face of it, this is astrong point in the defendant's favour. There is no doubt biosecurity is acomplex task and, if mistakes are made, there is the potential for significantharm and financial consequences.The Judge then noted that biosecurity incursions have the potential to causesignificant economic consequences for New Zealand even where they have arisenthrough no one's fault, commenting that, regardless of the cause, the government maybe required to provide substantial compensation if it is in the public interest to orderdestruction of crops or livestock in order to eradicate or manage the incursion.She posed the question whether the government's response to biosecurity incursions(that is, whether to provide compensation and to what extent) should be determinedsolely by the government when a ministry has been negligent. While recognising thatmay possibly be appropriate, the Judge considered it involved making assumptionsabout the implications beyond the instant case.229The Judge proceeded to discuss factors which might serve to delimit theindeterminacy concern. She first placed significance on devices within negligencelaw capable of restricting the scope of liability. Proximity in particular was identified228 At [456].229 At [463].as an important controlling device on indeterminate liability, as demonstrated by thefinding of a narrow class to whom a duty was owed, namely those who had"property rights" in the vines or crops infected with Psa3 or treated as though theywere infected. Those who did not suffer direct loss because they did not have such"property rights" were not in a proximate relationship:230Pure economic loss is a relevant factor in New Zealand when consideringproximity in a novel situation. Those who suffered pure economic loss inthis case were not sufficiently proximate to MAF when it was consideringKiwi Pollen's permit application.The Judge identified further limiting factors, namely proof of negligence,causation and sufficiently proximate loss, in support of the point that liability "is notnecessarily a case of all or nothing".231 She noted that the Supreme Court's decisionin Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council232expressed no concern about disproportionality.233 The possibility of insurance wasviewed by the Judge as a neutral factor in the policy analysis.234Ultimately the Judge considered there was a societal benefit from correctivejustice, stating that if a person is harmed by the negligence of a government body, it isin society's interest that the government restores the harm it has caused unless there isa sufficiently countervailing public interest.235 She was not persuaded that generalisedconcerns about indeterminate and disproportionate liability provided a sufficientlycountervailing interest to displace the corrective justice interest in this case.236The respondents support that conclusion, emphasising the point made inThe Grange that policy reasons will only negate a duty of care in a relatively smallnumber of cases.237 To do so the policy considerations must be so strong as to requiredeparture from ordinary principles of compensatory justice such that a victim will beleft to bear reasonably foreseeable loss caused by a proximate defendant. They submit230 At [465].231 At [466]–[468]. Contributory negligence was also noted at [472].232 Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council [2017] NZSC 190,[2018] 1 NZLR 278.233 High Court judgment, above n 2, at [472].234 At [477].235 At [478].236 At [480].237 The Grange, above n 147, at [160].that any consideration of proportionality must be considered as a whole and in thecontext of the interests of justice,238 pointing out that this Court in Te Mata PropertiesLtd v Hastings District Council cited the dicta of Lord Denning MR in Dutton vBognor Regis Urban District Council to the effect that a plaintiff who was in no wayresponsible for her loss deserved to be compensated.239They argue that through no fault of their own the growers have sufferedsubstantial losses caused by the failure of MAF and its personnel who have"broad shoulders". Finally they submit that New Zealand courts have been willing toconsider economic efficiency in the context of the policy inquiry,240 making the pointthat a fundamental goal of tort law is that legal responsibility should be borne by thecheapest cost avoider,241 in the present case said to be MAF and its personnel.It is of course correct that not every biosecurity incursion will result in asuccessful negligence claim against the Crown. However the fact that the severalelements of the tort must all be established is no reason to dismiss the indeterminacyconcern. If it were otherwise, then the indeterminacy concerns raised by all ofthe common law appellate courts since Cardozo CJ's seminal statement inUltramares v Touche242 were misconceived. The common law's concern to avoid theimposition of indeterminate liabilities in negligence is reflected in the followingobservations of the Ontario Court of Appeal in Attis v Canada (Minister of Health):243Indeterminate liability, in my view, is the most relevant policy considerationbecause the imposition of a duty of care in this case may result inthe government becoming the virtual insurer of medical devices.The appellants argue that indeterminate liability is not a concern because thenumber of affected consumers in this proceeding is relatively contained.However, Health Canada's responsibilities extend far beyond the regulationof the specific devices at issue in this case to the regulation of thousands ofother devices. In addition, potential liability could extend from medicaldevices to other products regulated under the FDA, such as food, drugs andcosmetics, as well as to many other regulatory regimes. It follows that the238 Again referring to The Grange, above n 147, at [231] per Tipping J.239 Te Mata Properties Ltd v Hastings District Council [2008] NZCA 446, [2009] 1 NZLR 460 at[24], citing Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 (CA) at 397–398.240 Referring to Body Corporate No 207624 v North Shore City Council [2012] NZSC 83, [2013] 2NZLR 297 [Spencer on Byron] at [32]–[33].241 Referring to Guido Calabresi The Costs of Accidents: A Legal and Economic Analysis(Yale University Press, New Haven, 1970) at 135.242 Ultramares Corp v Touche, above n 226, at 444.243 Attis v Canada (Minister of Health) 2008 ONCA 660, (2008) 300 DLR (4th) 415 at [74].imposition of liability on the public purse would place an indeterminatestrain on available resources.Indeterminacy is an important issue in this case. The profit to growers inthe kiwifruit industry alone calculated on the basis of the particulars of Strathboss'claimed loss of profits over four years is $2.47 billion. If a duty of care is owed inrelation to the consideration of import permit applications for kiwifruit pollen,the same duty would logically apply to pollen for all plant types.Indeed it would follow that a similar duty would apply to prospectiveimportations of all risk goods. The potential losses which might be claimed forbreaches of such duties could be immense. A 2014 Economic Impact Assessmentestimated that a large-scale foot and mouth disease incursion in New Zealand wouldresult in a net present value loss in real GDP over the years 2012 to 2020 of$16.2 billion.244 The Judge recognised this is a strong point.245 She was right to doso.However the strength of that consideration appears to have been diluted inthe Judge's analysis by a perception of the liability-limiting devices in negligence law.The Judge considered that growers with property rights in the kiwifruit crop werewithin the class that was distinctly identifiable as at special risk.246 By contrast thosewithout such rights did not suffer a direct loss but rather purely economic loss.They were thus not in a proximate relationship.The physical/economic loss distinction is both problematic in itself andcomplex in its application to the circumstances of this case. The Judge viewed Seeka'sclaim as a PHO as a loss suffered because of business relationships with growerswhich was more removed from the immediate consequences of the alleged negligence.However, on the cross-appeal the point was emphasised that the relationship withgrowers is close, being part of an integrated and mutually dependent chain ofproduction and getting product to market. Seeka depends on growers for product to244 Rod Forbes and Andre van Halderen Foot-and-Mouth Disease Economic Impact Assessment:What it means for New Zealand (Ministry for Primary Industries, Technical Paper 2014/18,August 2014) at 6.245 High Court judgment, above n 2, at [461].246 At [413].store and pack. Growers depend on Seeka to give advice on orchard management andto actually harvest and manage the fruit at every point of the process in order toefficiently get their products to market and maximise their profit.The economic structure of the kiwifruit industry reinforces the symbioticrelationship between growers and PHOs. Their inter-dependence extends toownership with many PHOs having some form of direct grower ownership and nearlyall kiwifruit growers who pack with Seeka being shareholders. While Seeka'scross-appeal is resolved by our findings on immunity in Issue 2, the basis ofthe cross-appeal serves to highlight the dangers inherent in analysing duty in asituational manner.In our view the demarcation which the Judge made between the categories ofclaimants in this case serves to obscure the significance of the true scale of losses forwhich liability may arise. We consider there is justification for Mr Hodder's criticismthat the Court erroneously focused on a situational duty of care, contrary to thewarnings in Attorney-General v Body Corporate 200200.247 We agree with the Crownthat the limitation which the Judge placed on the duty of care by drawing a distinctionbetween the different classes of claimant does not assuage the indeterminacy concern.The fact that the Crown is the defendant is not a reasonable rejoinder to theproblem of indeterminate liability. As this Court stated in Attorney-General vCarter:248There is a legitimate public interest in regulatory bodies being free to performtheir role without the chilling effect of undue vulnerability to actions fornegligence. Whether it be a case of failing to issue or of issuing a surveycertificate, the threat of legal liability for economic loss might subject thesurvey authority to inappropriate pressures to the detriment of the overallpublic interest. For this kind of reason the trend of authority is generally notto hold the regulator liable to the regulated for economic loss, even ifnegligence can be shown: 247 Attorney-General v Body Corporate 200200 [2007] 1 NZLR 95 (CA) at [43].248 Attorney-General v Carter [2003] 2 NZLR 160 (CA) at [35], citing Yuen Kun Yeu v AttorneyGeneral of Hong Kong [1988] AC 175 (PC); Fleming v Securities Commission, above n 177;and Cooper v Hobart 2001 SCC 79, [2001] 3 SC 537.The Judge was not persuaded that what she described as generalised concernsabout indeterminate and disproportionate liability provided a sufficientlycountervailing interest to displace the corrective justice interest in this case.249As the Judge explained:250The defendant submits that the public of New Zealand should not become theinsurer or guarantor of losses which are suffered by particular persons orindustries. Public authorities exercising regulatory functions must deal withthe world at large. The regulator, by and large, regulates for the very purposeof protecting the general public. The same point, however, applies to councilsin the building cases. Ultimately there is a societal benefit from correctivejustice. If a person is harmed by the negligence of a government body, it is insociety's interests that the government restores the harm they have caused,unless there is a sufficiently countervailing public interest.We do not agree. The implications of indeterminate liability of the scale incontemplation here are of such significance that even the Crown ought not to be castin the role of indemnifier. Indeed it is for that very reason that the applicablelegislation contains a form of immunity from suit although we are of course assumingthat it does not apply here. If liability of this magnitude is to be contemplated forbiosecurity hazards, we suggest that it would be better it be introduced by legislation,in which its metes and bounds might be thoroughly examined and laid down.On the issue of disproportionality, Mr Hodder notes the concern raised inRegent Holdings Pty Ltd v State of Victoria that the potential liability of the statetortfeasors was disproportionate to any fault.251 He also draws attention to thecomment of Richardson J in Fleming v Securities Commission that the cost structureof newspaper advertising space would have to change if the publisher had to accept orshare the responsibility of erroneous financial advertisements.252 He observes that a$105 fee for an import permit application stood in stark contrast to a claim of $6 pertray of kiwifruit (which he extrapolates to be $2.4 billion over three years for the entirebody of commercial kiwifruit growers).However as Blanchard J stated in The Grange, a particular concern will bewhether a finding of liability will create disproportion between a defendant's249 High Court judgment, above n 2, at [480].250 At [478].251 Regent Holdings Pty Ltd v State of Victoria, above n 207, at [225].252 Fleming v Securities Commission, above n 177, at 532.carelessness and the actual form of loss suffered by the plaintiff.253 This involvesintroducing into the equation the nature and gravity of the assumed breach.As we have noted, this case is unusual in that the assumed breach to undertakea risk assessment is dependent or sequential on there having been a failure by MAF toobserve the quasi-legislative PEQ requirement. However that does not serve todiminish the nature and gravity of the assumed breach. While we have recognised theimportance of indeterminacy in this case, we do not consider that thedisproportionality argument is a significant additional factor.Conflicting interests and regulatory decisionsUnder this banner the Crown reprises its argument that, in deciding what riskgoods may be imported into New Zealand and under what conditions (as it was put,either under an IHS or an import permit), MAF personnel undertake quasi-legislativedecisions that involve prioritising competing interests. It renews the challenge tothe Judge's "hand in hand" conclusion254 and the analysis of the way in whichconflicting interests are resolved.255 Those contentions have already been addressedin our consideration of the Crown's justiciability argument.256The submission is then made that the evidence did not support the notion, saidto be evident in the judgment, that resolution of the various interests is easy. We do notread the judgment as espousing that view. On the contrary, the Judge said that at thepre-border stage MAF personnel may have to balance difficult scientific questions andfactors.257 Similarly with reference to the border itself the Judge remarked:[385] Again, MAF's border control role is a difficult one. This is becausethe bottleneck delays goods from reaching their destination withinNew Zealand. The border control must therefore balance the need to protectNew Zealand from risk goods with the need not to unduly hinder commercethrough border delays. Nonetheless, the fact remains that MAF exercisescontrol over this, admittedly difficult, process.253 The Grange, above n 147, at [159].254 See above at [161].255 See above at [187].256 See above at [177]–[191].257 High Court judgment, above n 2, at [383].Earlier in the course of consideration of the border justiciability issue,the Judge had noted the potential implications for trade and commerce of recognitionof a duty of care, recording the Crown's submission in this way:[354] The defendant submits imposing a duty of care here would requirethe Government to reprioritise biosecurity resourcing. If formal risk analysisis required for every import request, this may bring trade to a standstill whileimporters await the completion of formal risk analysis. This in turn mayincentivise illegal import (smuggling) of risk goods and increasethe biosecurity risk to New Zealand. The defendant says there is also theprospect that New Zealand's trading partners may criticise New Zealand fortaking an overly conservative approach to risk analysis.Mr Hodder presses this point, emphasising that the extension of the negligenceboundaries recognised in the judgment will have inevitable consequences for resourceallocation, public expenditure and the risk of defensive regulatory behaviours.Such a consequence resonated with Lord Toulson in Michael. Viewing asspeculative the proposition that the addition of potential liability at common law wouldmake a practical difference at an individual level to the conduct of police officers andsupport staff, Lord Toulson said:258121 At an institutional level, it is possible to imagine that it might leadto police forces changing their priorities by applying more resources to reportsof violence or threatened violence, but if so, it is hard to see that it would bein the public interest for the determination of police priorities to be affectedby the risk of being sued.122 The only consequence of which one can be sure is that the impositionof liability on the police to compensate victims of violence on the basis thatthe police should have prevented it would have potentially significantfinancial implications. The payment of compensation and the costs of dealingwith claims, whether successful or unsuccessful, would have to come eitherfrom the police budget, with a corresponding reduction of spending on otherservices, or from an increased burden on the public or from a combination ofthe two.In our view this is an additional telling consideration which serves to negatethe imposition of a duty of care in the present case.258 Michael v Chief Constable of South Wales Police, above n 217.Incompatibility with public law frameworkThe Crown contends that any new duty of care must sit coherently within thelegal framework governing the subject matter as a whole. It points to a number ofproceedings that may be commenced where a plaintiff alleges a failure in publicdecision-making:(a) the tort of breach of statutory duty;(b) misfeasance of public office;(c) declaratory judgments; and(d) judicial review.However the Judge considered that a private law duty of care did not cut acrossother accountability mechanisms. We agree. As the respondents submit, there isextensive authority recognising common law negligence claims against public bodiesacting under statute. In X (Minors) v Bedfordshire County Council the House of Lordsheld that the availability of public law causes of action would not preclude theavailability of private law claims founded on common law duties of care,259 a dictumadopted by this Court in Attorney-General v Carter.260The duty of care in this case concerns the grant of an import permit for pollenin the knowledge of an intended new use without undertaking a risk assessment.While the types of proceeding to which the Crown refers, in particular (a) and (d),might be apt in relation to a failure by MAF to comply with a quasi-legislativePEQ requirement, that is not the thrust of the respondents' claim. They disavow anyclaim for breach of statutory duty. While their claim may not have arisen at all hadthe PEQ requirement been observed, in our view their claim in negligence is notincompatible with the public law framework.259 X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) at 730–731.260 Attorney-General v Carter, above n 248, at [41].Conclusion on dutyThe analysis of the nature of the connection between MAF personnel andthe respondents, which derives from the environment of the Act, points toa prima facie duty of care in relation to the assessment of the risk associated with theimportation of risk goods, being pollen intended to be utilised in a new manner.Such a duty is not excluded by the provisions of the Act when interpreted in a mannerthat assumes our conclusion on the immunity issue is in error.However in our view policy considerations, primarily the spectre ofindeterminate liability, weigh strongly against the imposition of a duty of care inrelation to the pre-border conduct. Thus we would have concluded that the impositionof the asserted pre-border duty of care would not be fair, just or reasonable.Notwithstanding this general conclusion, we consider there are additionalreasons why we would have found that no duty should exist either to consult or inrelation to the PHEL Review. We therefore address those aspects separately below.Additional aspectsDuty to consultThe final aspect of the reformulated duty of care, namely consultation withthe kiwifruit industry, received little attention in the argument before us.261The asserted duty is said to require:appropriate consultation with the kiwifruit industry as required by s 22 of theBiosecurity Act, the Risk Analysis Procedures and MAF's policy statement onconsultation.Save for two exceptions,262 s 22(6) requires consultation by the chief technicalofficer before making a recommendation to the Director-General on the issue oramendment of an IHS. The consultation, which may be on the IHS or on a risk analysis261 See above at [152].262 The exceptions are urgency or minor amendment: Biosecurity Act, s 22(6).or assessment,263 must be with persons considered to be representative of the classesof persons who have an interest in the IHS.Neither the Risk Analysis Procedures nor the consultation policy statementcontemplates consultation taking place subsequent to the completion of the IHSprocess.264 The latter document records that MAF Policy (a team within MAF)consults on primary and subordinate legislation, policies and standards. It states:Consultation will be undertaken only in establishing or reviewing a policy.Once a policy is established, its application to individual cases will not besubject to consultation, but may be a subject of further clarification ordiscussion.We do not discern that either of those documents or s 22 imposes an obligationto undertake consultation on the determination of individual import permitapplications. Hence we reject the proposition that consultation as alleged is "required"by those documents or s 22.While that conclusion determines the issue, we briefly comment on theappropriateness of a duty of care in the context of the consultative function.In New Zealand Pork Industry Board v Director-General of the Ministry for PrimaryIndustries265 the Supreme Court referred with approval to the principles applicable toconsultation which emerged from this Court's decision in Wellington InternationalAirport Ltd v Air New Zealand where it was said that "consultation" clearly requiresmore than prior notification:266 for consultation to be meaningful, there must be made available to theother party sufficient information to enable it to be adequately informed soas to be able to make intelligent and useful responses.263 Section 22(7).264 The Risk Analysis Procedures was a detailed document completed by MAF in 2006 specifying abiosecurity risk analysis framework.265 New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries[2013] NZSC 154, [2014] 1 NZLR 477 at [168].266 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA) at 676.Further, having been informed, those consulted must be given a fair opportunity toexpress their views which must then be considered by the policy maker with an openmind.267Both the Risk Analysis Procedures and the consultation policy envisagea consultation obligation of that nature. Indeed the requirement to heed the views ofthose consulted was recognised in s 22A(1) of the Act which was introduced bythe Biosecurity Amendment (No 2) Act 2008:26822A Process for independent review panel to be established(1) The Director-General must, by notice in the Gazette, set out theprocess by which an independent review panel is to be establishedto review whether, in developing an import health standard, therehas been sufficient regard to the scientific evidence about which aperson consulted under section 22(6) has raised a significantconcern.As Elias CJ observed in New Zealand Pork Industry Board, it is clear from ss 22 and22A that industry participants have an important contribution to make in settingIHSs.269However we have reservations whether a tortious duty of care is apt in abilateral scenario where it is envisaged that there will be participation on the part ofthe person to whom the duty is said to be owed. Traditionally negligence is definedpurely by reference to the quality of a defendant's conduct. Accordingly duties of carehave been unilateral in nature, for example the duty to warn in certain circumstances.We were not taken to any authority which would support the proposition that a dutyof care should be owed by a person required to undertake consultation with another.Such an obligation has traditionally existed in the domain of statute and contract.267 New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries,above n 265, at [168].268 As s 22A of the Act was only introduced in 2008, it applies in respect of the 2009 permit but notthe 2007 permit.269 New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries,above n 265, at [9].The PHEL ReviewWhile there was no reference to the PHEL Review in the claim as reformulatedin this Court,270 Mr Galbraith was unwilling to abandon the contention that a duty ofcare related to it which had been breached. We signal now that because of ourconclusion that no duty could be owed in respect of the PHEL Review, we do notintend to deal with the alleged breaches relating to it, even though that aspect was thesubject of extensive submissions.The PHEL Review was a literature review of plant pests and diseasestransmitted by pollen for the purpose of assisting with a subsequent analysis of therisks associated with pollen importation. It was commissioned against the backgroundof MAF's reconsideration of whether PEQ was really necessary for pollen. There hadbeen growing frustration by growers at the cost and delay associated withPEQ requirements for imported nursery stock and there was a view that pollen mightbe better treated in the same way as seeds, given that the pests and diseases associatedwith pollen could be viewed as a sub-set of those associated with seed.Following internal and external peer review, the PHEL Review was finalisedon 22 November 2006.271 Relevantly it stated "there are no known bacteria, mollicutesor invertebrates that use pollen as a form of transmission". Specifically, in relation tokiwifruit, it stated:There are no recorded pests or pathogens that are pollen transmitted inActinidia species.The pleading in the High Court did not contain specific reference to a duty ofcare in connection with the preparation of the PHEL Review, it being apparentlysubsumed in the alleged broad duty to exercise reasonable care and skill whenundertaking functions and responsibilities under the Act.272 However a specificallegation of breach of duty was expressed in this way:273270 See above at [152].271 It was subsequently published with some modifications and became known as the Card Paper butwe continue to refer to it as the PHEL Review.272 See above at [150].273 Amended statement of claim at [124(a)(viii)]. Further allegations at [124(a)(ix)–(x)] addressedthe reliance by MAF officers, agents and employees on the PHEL Review in concluding thatpollen would not transmit Psa and the effect of this on risk assessment.The [PHEL Review] co-authored by MAF and Auckland University staffwas insufficient, incorrect and mis-stated the risk of pollen transmission ofbacteria[.]It is common ground that prior to 2010 it was not known that Psa3 could spreadto kiwifruit plants via pollen. Nevertheless, the Judge held that the PHEL Review wasmisleading and wrong in its general statement of bacteria and the Actinidia section setout above. The Judge also held that the scope of the review was misunderstood andas a result a number of relevant scientific papers were not cited, papers that wouldhave led to a different conclusion.The Judge found that MAF personnel failed in three respects to take reasonablecare in breach of the duty found to be owed:274(a) The scope of the PHEL Review was not clearly set or clarified asbetween the principal author and the MAF scientist who wassupervising the principal author. This meant that relevant literatureabout the association of bacteria with pollen was omitted.(b) The PHEL Review overstated the conclusion that could be drawnabout pollen and bacteria generally from the reference on which itwas based (which concerned a subset of bacteria that is transmitteddifferently to bacteria generally).(c) The PHEL Review was misleading about the association of bacteriaand pollen in that it made an overly definitive statement given:(i) the limited basis on which it was made (a particular andspecific mechanism of pollen transmitted pests);(ii) the lack of clarity in the PHEL Review about its scope(both as to the particular and specific mechanism of pollentransmitted pests and as to the purpose for which the pollenwould be used); and(iii) its assumption of "pure" pollen.The Crown appeals those findings, arguing that the Judge's conclusions wereunjustified and affected by hindsight. And significantly for present purposes274 High Court judgment, above n 2, at [843]. A fourth finding concerned Dr Clover's response of6 December 2006 to Ms Dickson's (see below at [302]) inquiry about a risk analysis for kiwifruitpollen.the Crown argues that there is no tort of negligent information gathering on the part ofpublic servants.275As Charleton J emphasised recently in Cromane Seafoods Ltd v Minister forAgriculture, negligence does not exist in a vacuum. Before one can find a failure toexercise reasonable care there has to be a clear definition of the duty of care whichthe negligent conduct is said to be a breach of.276 Hence it is important to recognisethe context for and the limits of the PHEL Review. It was commissioned as a literaturereview. It was not directed at any particular proposed importation. While it referredto various plant hosts, it was concerned with pollen at large, bearing the heading"Pollen-transmitted plant pathogens". As the Judge correctly noted:[805] The PHEL Review was not intended to be a risk assessment.This was evident from Dr Ormsby's response to Dr Fernando's commentduring the peer review. The PHEL Review was an input, best described aspart of a hazard identification, intended to assist with assessing pollenimports. It did not consider the likelihood of an organism or disease entering,establishing or spreading in New Zealand, the likely impact if it did, ormeasures to identify a managed risk. Rather it advised of the diseases knownto be transmitted by pure pollen. It did not address the risk of contaminants.Nor was any public consultation undertaken.(footnotes omitted)As such, the literature review was initially intended to be an internal MAFresource. It did not have a specific external audience (though it was later published).We consider that its ultimate status is similar to the published works of the hypotheticalscientist to whom Denning LJ referred in Candler v Crane, Christmas & Co:277 a scientist or expert (including a marine hydrographer) is not liable to hisreaders for careless statements in his published works. He publishes hiswork simply for the purpose of giving information, and not with anyparticular transaction in mind at all. But when a scientist or an expert makesan investigation and report for the very purpose of a particular transaction,then, in my opinion, he is under a duty of care in respect of that transaction.275 Referring to Adams v Borrel 2008 NBCA 62, (2008) 297 DLR (4th) 400 at [73].276 Cromane Seafoods Ltd v Minister for Agriculture, Fisheries and Food [2016] IESC 6,[2017] 1 IR 119 at [232].277 Candler v Crane, Christmas & Co [1951] 2 KB 164 (CA) at 183.A similar approach was taken by the House of Lords in 2006 in Sutradhar vNatural Environment Research Council which involved a claim against the BritishGeological Survey (BGS), a department of the defendant, in respect of a reportassessing the hydrochemistry of the main aquifer units in artesian wells inBangladesh.278 Lord Brown viewed BGS's position as akin to that of the notionallynegligent marine hydrographer referred to in Candler, noting the lack of a"particular transaction".279The basis of those authorities lies in negligent misrepresentation whereas thecriticism levelled at Dr Card and Dr Clover is more in the nature of negligent researchor acquisition of information. However, as the Judge observed in the course ofconsidering policy issues, it is not the case that negligent information gathering informulating policy will necessarily give rise to liability; it will depend on thecircumstances. Proximity is required.280It is difficult in our view to conceive that in the preparation of a resource suchas a literature review the authors could be viewed as being in a relationship ofproximity with all persons who might read and place reliance on their end product.To do so would be to recognise a duty of care in connection with the acquisition ofinformation.Such a notion was rejected by the New Brunswick Court of Appeal inAdams v Borrel:281In my view, the day has not come where the law should recognize thatgovernment actors are liable for the formulation and implementation ofdiscretionary policy decisions that are based in whole or in part on inaccurateinformation gathered in a negligent manner. Taken to its logical conclusion,this proposition gives resonance to the notion of unlimited liability to anunlimited class. In my view, recognition of a private law duty of care in casesof negligent information-gathering is simply too unwieldy. Too manygovernment decisions are based on information that is later proven to have beenconceived in error. Until today, no one has suggested that governmentauthorities should be held accountable in negligence because a discretionarydecision to adopt a solution to a pressing problem is infused with factual error.278 Sutradhar v Natural Environment Research Council [2006] UKHL 33, [2006] 4 All ER 490.279 At 504–505.280 High Court judgment, above n 2, at [464].281 Adams v Borrel, above n 275, at [73].Another way of analysing the negligence claim directed towards the literaturereview is to adopt the terminology employed in George v Newfoundland andLabrador, that MAF breached a duty of care owed to the respondents in theaccumulation of information to inform a policy decision (the "input" stage) rather thanby a failure to implement settled policy, namely the more usual "output" stage.282Whichever way the research task is analysed, whether as negligent informationgathering or a policy decision "input", we do not consider that there was a sufficientlyproximate relationship between Dr Card and Dr Clover and readers of their review ingeneral or the respondents in particular. Consequently we would have rejected thecontention that Dr Card and Dr Clover owed a duty of care in connection with thepreparation of the PHEL Review.Issue 3(b): Did the High Court err in holding that MAF personnel breached theirduty of care by acts or omissions at the pre-border stage?Despite our conclusion as to a lack of duty, we nevertheless considerthe Crown's argument in relation to breach of duty.The issuesExcluding the allegations of pre-border negligence relating tothe PHEL Review and the failure to consult the industry (for the reasons discussedearlier) the Judge found negligence by MAF personnel in:(a) advising the Plant Imports Team about the effect of the PHELReview;283 and(b) failing to obtain a formal risk analysis sign-off confirming thatthe PHEL Review could be relied on and/or to make sufficientenquiries about the pollen milling process before granting the firstpermit allowing Kiwi Pollen to import kiwifruit pollen to be usedcommercially for the artificial pollination of kiwifruit orchards.284282 George v Newfoundland and Labrador, above n 170, at [128].283 High Court judgment, above n 2, at [843(d)].284 At [843(e)].Negligence is the failure to take reasonable care. Once the court is satisfiedthat the defendant owes a duty of care to the plaintiff, the court must then ask whetherthe defendant acted in such a way to have breached that duty of care owed. In doingso, the court must ascertain the standard expected of the defendant and then considerwhether the actions of the defendant fell short. A person with special skill andknowledge must employ the reasonable skill and knowledge of someone in thatposition. The test is an objective one, determined on the facts as they existed at thetime. As reflected in the pleadings, the standard of care required in this case is that ofa skilled and informed MAF employee undertaking functions and responsibilities inthe circumstances of biosecurity in New Zealand, including functions under the Act.Mr Hodder argues that the Judge's conclusion that "MAF breached its duty ofcare by acts or omissions when granting import permits to Kiwi Pollen" waswrong.285 He submits that the findings of breach were made by only assessing theactions of the relevant MAF personnel through the distorting prism of hindsight, andnot against the state of knowledge at the date of the actual conduct being challenged.Advising Plant Imports TeamIn late 2006, Ms Dickson (a technical adviser in the Plant Imports Team)received an email enquiry from Kiwi Pollen regarding the proposed importation ofpollen. Ms Dickson sought advice from the team leader of PEQ, Dr Clover, about therisks associated with pollen.On 23 November 2006, Ms Dickson had received the following email fromMs Hamlyn:Our company wishes to import frozen male kiwifruit pollen from Italy and[C]hina. Species: Actinidia deliciosa Var: Hayward.The pollen is collected by milling unopened male flower buds, extractingthe pollen and freezing.The pollen will be used for pollinating kiwifruit in orchards in New Zealand.We have not imported kiwifruit pollen before.We have imported some Nashi pear pollen in the past.285 At [18].Please would you advise the likely time frame for obtaining a permit.(emphasis added)Ms Dickson responded indicating that MAF would advise whetherthe proposed import would be possible or if an assessment had to be done first.On 6 December 2006, Ms Dickson emailed Dr Clover saying:We have the company Kiwifruit Pollen Ltd, wanting to bring in pollen, andI know this has been discussed in the past but just can't recall how we handledit. There does not seem to have been any permit issued, but the [importer] isof the opinion that they have been allowed to in the past.Can you recall anything off the cuff? or can you give me any info about acurrent risk analysis.Less than half an hour later, Ms Dickson sent Dr Clover another email attachingMs Hamlyn's email of 23 November 2006, saying:Further to my last email, the attached email explains a bit more of what theywant.Dr Clover responded later the same day, apparently without having readthe attachment to Ms Dickson's email (being Ms Hamlyn's email) and thereforeunaware that Kiwi Pollen wanted to import pollen for the purpose of pollinatingkiwifruit in orchards:I have not heard of the company Kiwifruit Pollen Ltd but it's an interestingrequest and certainly pollen as a source of germplasm is likely to becomeincreasingly important. Because of this we have recently completed anextensive literature review on pests and diseases that are associated withpollen, the report was peer-reviewed internally by Ops Stds (Tamsin) and RiskAnalysis and externally by the University of Auckland. It's available onECMS here: [link provided].As you will see there are no pests or diseases known to be associated withpollen of Actinidia spp.I would be happy to discuss further — please keep me informed how youdecide to proceed with this permit application since it is very relevant to thePEQ GIF initiative.(emphasis added)Two days later, on 8 December 2006, Ms Dickson advised Ms Hamlyn byemail:This matter has been discussed further within the group and it has been agreedthat hand collected, unopened male flower buds of kiwifruit may be collected,milled and imported. We will be requiring that consignments be accompaniedby government issued phytosanitary certificate that the male flower buds werehand collected and unopened.A permit to import will be required. As we don't have an application formexactly applicable for pollen we will use the email trail instead. Could youplease confirm that the unopened flowers are milled in Italy, rather than hereafter arrival. There is no record of the discussions referred to in that email. The Judge foundthat they likely involved Mr Hartley, a senior technical adviser in the Plant ImportsTeam, and Ms Cooper, team manager of the Plant Imports Team.286 But she found thatRAG was not involved at that stage and only became involved later, in relation to theunrelated applications to import apple and pear pollen.287 This was contrary tothe evidence of Dr Sathyapala, the team leader of RAG, which the Judge regarded asgenerally unreliable.288 That finding is the subject of separate challenge.At trial the respondents asserted that Dr Clover was negligent in not advisingMs Dickson of the limitations of the PHEL Review — that is, that it did not assessthe risks of milled pollen used for artificial pollination. The Judge agreed:[777] Nevertheless Dr Clover's response to Ms Dickson did misstatethe conclusion about Actinidia. The conclusion in the PHEL Review was"[t]here are no recorded pests or pathogens that are pollen transmitted inActinidia species".[289] [778] Additionally, Dr Clover did not make it clear to Ms Dickson thatthe PHEL Review was about the risks of pests and diseases transmitted bypure pollen. In other words he did not point out the narrow scope ofthe PHEL Review even though Ms Dickson had provided him with the emailfrom Kiwi Pollen which said that the pollen would be used for pollinatingkiwifruit in New Zealand orchards. 286 At [795].287 At [796].288 At [567] and [646]–[647].289 This finding was not the subject of challenge. However we note that, although Dr Clover wronglyused "associated" rather than "transmitted" in reporting the finding of the PHEL Review, thiswould have made no difference. The evidence was clear that technical staff within MAF wouldnot have attributed different meanings to these words so Dr Clover's paraphrasing would not havecaused confusion; whichever word was used, Ms Dickson would have treated as having the samemeaning, ie pests or diseases spread by pollen.[781] Had [Dr Clover] realised the import enquiry was for a whollydifferent use of pollen than was his experience it seems very likely he wouldhave pointed this out. Simply pointing out the report was about pure pollen(free of all contaminants) for breeding purposes would have alertedMs Dickson that she would need to consider whether the PHEL Reviewconclusions could be relied on in determining Kiwi Pollen's request.On appeal, Mr Hodder argues that these findings were unsupported bythe evidence and, in any event, Dr Clover was not in the Plant Imports Team andmerely provided a reference to technical information which would form part ofthe Plant Imports Team's consideration of the Kiwi Pollen application. In thatcapacity he did no more than alert Ms Dickson to it, referring in broad terms to theconclusion in the Actinidia section which, in any event, was correct. In other words,at that point there were no pests or diseases known to be associated with pollen.We do not accept these submissions. Responding to technical enquiries fromthe Plant Imports Team was clearly within the scope of Dr Clover's role at PHEL andMs Dickson was entitled to rely on the advice that she received from him. As to thecorrectness of the PHEL Review, this is a matter that we have, deliberately, notaddressed because, for the reasons discussed, no duty of care could be owed in respectof it. For present purposes it is sufficient to say that, whilst we accept that Dr Cloveraccurately paraphrased the effect of the PHEL Review, we do not see any need toexpress a view on the correctness of that conclusion.The Judge's second finding was that, had Dr Clover realised the intendedpurpose of the importation, he would likely have pointed it out and Ms Dickson wouldhave been alert to the possibility that the PHEL Review was insufficient to determinethe application for the import permit. The finding rested on a passage ofcross-examination which was set out in the judgment.290 Dr Clover was asked whathe would have said to Ms Dickson if he had understood she was enquiring about milledpollen from Italy and China to be used commercially for artificial pollination. He said:290 High Court judgment, above n 2, at [780].As this is pure speculation now and trying to cast my mind back to 2006 I thinkit's quite possible I would have asked what milling involved but I thinkI would be very much aware about my role in this which was I was workingin the laboratory and it wasn't my role to set import requirements. So I wouldhave referred [Ms Dickson], as I did, to the review that we'd done. Knowingthat this is talking about milling unopened male flower buds and it talks aboutpollinating kiwifruit in orchards, I speculate that I would have referred[Ms Dickson] to the introduction in that report which talked about importationfor germplasm, but that is speculation.Mr Hodder argues that this finding was speculative and thereforeunsupportable. We disagree. The fact that Dr Clover himself regarded the answer asspeculation did not preclude the Judge from taking a broad view of the evidence toreach a conclusion that, more likely than not, he would have offered that additionalinformation. It is apparent from Dr Clover's response to Ms Dickson on 6 December2006 that he was making an assumption that the request related to the importation ofgermplasm (for breeding). In the circumstances, and given the Judge's advantage ofassessing Dr Clover in person, we see no error in the conclusion she reached on thispoint.Nor do we see any merit in the submission that, merely because no hazardswere identified in the Actinidia section of the PHEL Review, the end use(commercial artificial pollination as opposed to breeding) was irrelevant.The importation of pollen was an uncommon event for MAF at that time and thisrequest was particularly unusual. A scientist in Dr Clover's situation could reasonablyhave been expected to respond to the request as it was put; that could only be done bydrawing to Ms Dickson's attention the fact that the use of imported pollen for artificialpollination on a commercial scale had not been contemplated when the PHEL Reviewwas carried out.It is evident from the Judge's findings that she was conscious of how busyDr Clover was at the time; indeed it is clear from the evidence of a number of witnessesthat many MAF staff were over-burdened. One can therefore understandthe inattention that led Dr Clover to respond to Ms Dickson's enquiry without openingthe email attachment. But we agree with the Judge's conclusion that, even allowingfor that, the failure to do so fell below the expected standard of care.Failure to undertake risk assessmentThe risk assessment processRisk assessment is part of the process known as risk analysis, which compriseshazard identification, risk assessment, risk management and risk communication anddocumentation. We are concerned with hazard identification and risk assessment.Risk analysis may be undertaken in respect of particular commodities or particularpests or diseases or a particular exporting country or trading block. In 2006 a formalprocedure developed by Dr Ormsby, a senior adviser in RAG, the Risk AnalysisProcedures,291 was in place. It described hazard identification and risk assessment asfollows:Hazard identification is an essential step that must be conducted prior to a riskassessment. To effectively manage the risks associated with pathways orimported risk goods, organisms or diseases which could be introduced intoNew Zealand that are capable of, or potentially capable of, causing unwantedharm must be identified. In the case of a single hazard, a pest risk analysis,all or many of the potential pathways of entry may be identified.In the risk assessment step the risk analyst evaluates the likelihood andenvironmental, economic, and human health consequences of the entry,exposure and establishment of a potential hazard within New Zealand.The aim is to identify hazards which present an unacceptable level of risk,for which risk management measures are required. A risk assessment consistsof four inter-related steps:i) Assessment of likelihood of entryii) Assessment of likelihood of exposure and establishmentiii) Assessment of consequencesiv) Risk estimation.Even in the context of that formal framework, however, there was no fixedformat for a risk assessment. So, although issuing an import permit inevitably requiredrisk assessment, the approach taken in any given case was determined by a triagingprocess. Dr Butcher compared, by way of example, a commodity that had beenimported before, for which risk management measures were well understood and therewas no change in the known risk, with a commodity not previously imported. In theformer, an import permit could safely be issued without further action. In the latter,291 See above at [278], n 264.if known information indicated that there were no particular risks the permit mighteither be issued or a risk assessment be undertaken. That risk assessment could be aninformal discussion between experts or a fully published document, depending onthe circumstances.The issue on appealThe respondents had said that the Plant Imports Team should not have allowedthe import of kiwifruit pollen without first obtaining a full risk assessment,which would include the involvement of RAG.The Judge's finding as to what steps should have been taken rested onDr Ormsby's evidence, which the Judge summarised in the following passage:[806] Dr Ormsby said that if RAG had been asked to do a hazardidentification for kiwifruit pollen, how they would approach it would dependon how urgent it was and what question they were being asked to answer.They would do a literature review encompassing pollen generally and go onto consider whether bacteria associated with Actinidia presented a potentialrisk or hazard. This would have led them to consider Psa because it was onthe pest list. If a pathway included plant material, then they would considerthe risks associated with this. If pollen was intended for commercialapplication then PEQ was not practical although it would be possible to takea small sample for testing.The Judge then concluded that:[810] Dr Ormsby's evidence sets out what should have occurred.Unfortunately it did not. Kiwi Pollen's import request was not considered asit should have been. While there is no requirement for a risk analysis to takea particular form, the nature of the application — involving the import ofpollen of an important horticultural crop, PEQ was required for budwood ofthat crop, there had been no risk analysis when the Nursery Stock IHS wasissued, and the request was for a new use (commercial application in orchards)— meant that it should have been referred to RAG for a full assessment, ratherthan for sign off of the hazard identification contained in the PHEL Review(or Card Paper). That was the approach taken when Kiwi Pollen's vacuumcollected pollen was proposed. Had it been understood that the PHEL Reviewrelated only to pests and diseases transmitted by pure pollen used for breedingpurposes the same approach would have been taken with Kiwi Pollen'sproposal to import pollen from hand collected closed flower buds.The Judge specifically identified the following failings by the Plant ImportsTeam.292 First, in December 2006 one or more of Ms Dickson, Mr Hartley andMs Cooper relied on the PHEL Review as though it was a risk analysis for pollen.Secondly, they uncritically accepted Dr Clover's advice that there were no knownpests or diseases associated with pollen and/or the statements in the PHEL Review thatthere were no recorded pests or pathogens that were pollen transmitted in the Actinidiagenus. And thirdly, in April 2007 when the first Kiwi Pollen permit was issued,Mr Baring, Mr Hartley and possibly Ms Cooper relied on Dr Sathyapala's "sign off"of the PHEL Review (given in the context of the contemporaneous applications forapple and pear pollen) with the result that no consideration was given to howthe kiwifruit pollen was produced and whether it could include plant parts or othercontaminants. The Judge considered that if these issues had been thought aboutthe Plant Imports Team or RAG would have likely realised that pollen came with plantparts and therefore, because Psa was a known pest for Actinidia, additional measureswould need to have been considered.Mr Hodder argues that these conclusions were based on hindsight and on anerroneous analysis of the relevant decision-making and its context. He submits thatmost of the Judge's criticisms related to the triaging decision not to request a full riskanalysis from RAG and failed to properly reflect the nature of the triage process,both generally and in relation to the particular circumstances that existed in this casein 2006. This involves a direct challenge to the Judge's factual finding that RAG hadnot been involved in the decision to grant the 2007 Kiwi Pollen permit and the Judge'srejection of Dr Sathyapala's evidence.For the reasons that follow, we would have concluded that, although the Judgedid make some errors in her assessment of the evidence regarding the decision to grantthe 2007 permit, those errors did not undermine her ultimate conclusion that there hadbeen a lack of reasonable care in the granting of the 2009 permit which renewedthe 2007 permit.292 High Court judgment, above n 2, at [811].RAG's involvement in the decisionThe Judge found that more likely than not RAG was not involved in thediscussion (referred in to Ms Dickson's email to Kiwi Pollen on 8 December 2006) inwhich it was agreed that Kiwi Pollen's application to import pollen should begranted.293 The Judge found that RAG was not involved until March 2007, and onlythen as a result of the entirely unrelated application to import apple and pear pollen.294The reasons the Judge gave for her conclusions were that:295(a) Ms Dickson did not recall involving RAG;(b) the Judge considered that Mr Hartley was doing no more than guessingwhen he identified those likely to have been involved in the discussion;(c) Mr Baring, who was not involved in the Kiwi Pollen application,had sought RAG sign-off in relation to the applications to import appleand pear pollen in early 2007;(d) there was no email record of contact with RAG in December 2006whereas there were emails showing RAG's involvement in March andApril 2007; and(e) Dr Sathyapala had been concerned about relying on the PHEL Reviewbecause it was not work that had been carried out by RAG and a furtherpeer review was required before signing it off for use in risk analysis.If RAG had been involved in the December 2006 application in which293 At [796].294 This application was made in February 2007 and related to the import of pollen for commercialapplication. Dr Sathyapala was asked for her "sign off" of the PHEL Review so that it could beused in determining the applications. She would not give that without further review by membersof RAG. A senior analyst in RAG, Dr Zhu, reviewed the part of the PHEL Review relating toMalus and Pyrus. Dr Sathyapala reviewed Dr Zhu's comments and those of Professor Pearsonand discussed them with the other RAG members before approving the PHEL Review for use indrafting measures for import permits. In an email to Dr Clover dated 13 April 2007 Mr Baringnoted that Dr Sathyapala had "given 'sign-off' in the form of an e-mail stating that [RAG] arehappy that [the Plant Imports Team] utilise information contained within document to draftcorresponding measures".295 High Court judgment, above n 2, at [796].reliance was placed on the PHEL Review one could have expectedthe same response if she had known of the application.As noted above at [323], Mr Hodder argues that these findings were againstthe weight of the evidence and failed to acknowledge the nature of the "triaging"decision that led to the first import permit being granted without a full risk assessmentbeing undertaken. In particular, Mr Hodder submits that the Judge's finding wascontrary to Dr Sathyapala's evidence that there were "almost daily" discussionsbetween the Plant Imports Team and RAG. We accept these submissions.The Judge found that when Dr Sathyapala signed off the PHEL Review inJanuary 2007 in the context of the apple and pear applications she had been unawareof the Kiwi Pollen application approved in December 2006 (even thoughDr Sathyapala had said that she was aware of it). This led to the conclusion that RAGwas not involved in the importation of pollen until March 2007 (and only then inrelation to the apple and pear applications) and that Dr Sathyapala was not aware ofthe kiwifruit pollen imports in any specific way. But Dr Sathyapala's evidence wasthat she discussed Kiwi Pollen's request to import kiwifruit pollen with members ofthe Plant Imports Team (Ms Cooper and possibly Mr Gower-Collins, a group manager)and within her own team, particularly with Dr Ormsby. She said that she recalleddiscussing the fact that the pollen was to be used for artificial pollination and the optionof requiring hand-picked unopened flower buds but could not recall who suggestedthat. This evidence was strongly challenged.The Judge rejected Dr Sathyapala's evidence. In a footnote, the Judgeexplained:296Generally I did not find Dr Sathyapala's recollections to be reliable:she tended to assert she could remember the content of discussions which tookplace around eight to ten years ago, and who these discussion were with, in away that none of the other witnesses did. In some of her answers she wouldassert things with some conviction but then resile from them when presentedwith evidence that was contradictory. In saying this I did not regardDr Sathyapala as dishonest in any way whatsoever. She was doing her best togive accurate evidence in difficult circumstances. She no longer works forMAF. She lives in Rome and has a busy role requiring frequent internationaltravel. She gave her evidence via AVL late at night (Rome time). These events296 At [821], n 462.were a long time ago and she was implicated in the plaintiffs' claim becauseshe had given "sign off" to using the PHEL Review. She appeared to accepther involvement in some matters because she was clearly involved in othermatters and because, had things been carried out properly, she would havebeen involved.Care is required before interfering with a trial judge's finding of this kind.However, a review of the evidence given by the witnesses in the Plant Imports Teamand RAG suggests that, in assessing Dr Sathyapala's reliability, the Judge did not giveadequate weight to evidence that was consistent with Dr Sathyapala's recollection andto evidence about the dynamics between the Plant Imports Team and RAG.Because our view about Dr Sathyapala's evidence does not affect the Judge's ultimateconclusion, it is unnecessary to record the detailed analysis of the evidence that led tothis view. We briefly summarise the significant aspects of the evidence.The evidence was that issuing an import permit required signing authority.In the early 2000s, signing authority was held by the team manager and later certainsenior advisers. None of the Plant Imports Team members who gave evidence(Ms Dickson, Mr Hartley and Mr Baring) said that they had signing authority.Ms Dickson had very limited recollection of the events leading up tothe issuing of the permit. She did not recall who had been party to the discussionreferred to in her email sent to Ms Hamlyn on 8 December 2006 nor whose idea it wasthat the collection of pollen be by hand and of unopened male flower buds.She thought that Mr Hartley and probably Ms Cooper, the team leader, and very likelyanother senior adviser would have been involved. She did not recall speaking toDr Sathyapala or Dr Ormsby, though she added that this did not mean to say she hadnot done so. Notably, she commented that "Susan Cooper in her position may havewished to seek advice from above herself".Mr Hartley, who had only moved to the Plant Imports Team as a senior adviserin late 2006, worked alongside Mr Baring and Ms Dickson, and reported to Ms Cooper.He did not say that he had signing authority in respect of import permits. He did notrecall the meeting referred to in Ms Dickson's email sent on 8 December 2006 butpresumed that he had been present, along with Ms Dickson, "possibly" Chris Baringand Dr Sathyapala, and "more than likely the team manager, if not the group manager"on the basis that this type of decision was made collectively with input acrossthe teams. The Judge dismissed Mr Hartley's evidence, saying that:297 Mr Hartley was doing no more than guessing as to who might have beeninvolved and accepting propositions put to him but not in a convincing way.He thought Dr Sathyapala would have been involved because it required hersign off. Because it was kiwifruit and MAF was quite hierarchical he thoughtit would have also gone to a team leader or a group manager. The evidencedoes not support the involvement of Mr Gower-Collins or Dr Butcher(at group manager level).Mr Baring had moved to the Plant Imports Team as a senior adviser in 2006,shortly after Mr Hartley. He was not involved in the Kiwi Pollen application inDecember 2006 but gave evidence of a general nature about how the Plant ImportsTeam worked. In particular, the team worked in an open plan environment withcommunications mostly by way of casual conversation rather than email. There wasa weekly team meeting where the team talked about "big things that had come up that[the team] might want to discuss" but there were casual conversations about thingsthat could not wait for a week. In terms of the process for dealing with an importpermit application, Mr Baring said he would have talked to senior members of RAG,probably Dr Ormsby. But he said the Plant Imports Teams "would have talked withGerard Clover as well. He had previously been the manager of the Plant ImportsTeam, so we used him a lot 'cos he had only just left." Mr Baring also mentionedDr Sathyapala.The Judge's finding as to the discussions at which it was agreed thatthe Kiwi Pollen application would be approved and on what conditions essentiallycame down to just Mr Hartley and Ms Cooper:[795] In my view it is likely that Mr Hartley was involved in the discussionson 8 and 12 December 2006 where the Kiwi Pollen request was considered.He was a senior adviser in Ms Dickson's team. He had been copied intothe email and his calendar had blocked out one hour titled "pollen" for8 December 2006. It is also likely the meeting involved Ms Cooper who wasthe team manager who would be signing off the permit. And Ms Cooper hadbeen involved in the earlier discussions with Dr Sathyapala and Dr Herreraabout importing pollen into PEQ.297 At [796(e)].In our view, these findings stop short of addressing the critical question:who actually decided to allow the Kiwi Pollen application and what conditions shouldhave been imposed? Although it could have been Ms Cooper, it seems unlikely thatshe would have made that decision without input from RAG.298First, although Ms Cooper (as team leader) was responsible for signing offthe Kiwi Pollen import permit on 16 April 2007, she was new to MAF, having onlyarrived in 2006. Despite the MAF hierarchy, it was clear that staff tended to seek outadvice from those whose knowledge and skills they had regard for, even if not on thesame team. For example, several MAF witnesses referred to the knowledge and skillsof Dr Clover and Dr Ormsby, even though they were not in the same team. But nosuch comments were made about Ms Cooper. In that context, Ms Dickson'sobservation that Ms Cooper may have wanted to seek advice from someone above herin relation to the Kiwi Pollen application was telling. The Kiwi Pollen application wasvery unusual because the proposed importation was to be used for commercialartificial pollination. It seems unlikely that a new team leader would make a decisionon such an unusual application without seeking the advice of others with moreknowledge. Significantly, Dr Sathyapala had seen at least one previous application toimport pollen for use in artificial pollination.299 In 2005 HortResearch contacted thePlant Imports Team about importing kiwifruit pollen for commercial artificialpollination. The senior adviser handling the enquiry discussed it with Dr Sathyapala.HortResearch was advised that level three PEQ would be required. To Dr Sathyapala'sknowledge the application was not pursued.Secondly, it is clear from Mr Baring's and Mr Hartley's evidence that therewas a good deal of informal communication between the Plant Imports Team and RAGas a result of their close physical proximity and the fact that decisions tended to bemade collectively with input from across the teams.Thirdly, the reality was that the decision was one that could not, in fact, havebeen made without some input from RAG. All those in PHEL, the Plant Imports Team298 It appeared Ms Cooper had returned to Australia after leaving MAF and there was no suggestionthat any adverse inference was to be drawn from the fact that she did not give evidence.299 See above at [29].and RAG understood the complementary roles they played in the decision-makingprocess. All understood that hazard identification was the province of RAG. At thatstage the PHEL Review was not widely known (evident from the fact that Dr Cloverhad to provide the link to Ms Dickson) and, in any event, did not purport to representa risk analysis but simply an aid to risk analysis. The importance of the kiwifruitindustry, the unusual nature of the Kiwi Pollen application and the relativeinexperience of the Plant Imports Team suggests that it was more likely than not thatMs Cooper consulted with Dr Sathyapala (and possibly Dr Ormsby) regardingthe Kiwi Pollen application. Although Dr Ormsby did not recall being involved,Dr Sathyapala did.In our view the weight of the evidence should have led to a finding thatDr Sathyapala had likely been involved in the assessment of the Kiwi Pollenapplication. This would lead to a finding that RAG was likely involved in theKiwi Pollen application on the basis of an informal risk assessment.Mr Hodder's position is that an informal assessment was appropriate inthe circumstances and was a decision involving judgment in which other factors,including resourcing, were relevant considerations.300 Further, the Plant Imports Teamwas required to comply with the SPS Agreement in assessing the application so thatphytosanitary measures imposed had to be both technically justified by sufficientscientific evidence and proportionate to the risk. The evidence was that a full, formal,risk assessment required significant resources and time. The demand for suchassessments meant that such work was prioritised by way of a yearly work plan.Dr Butcher considered that a review of pollen imports from China would have takenmore than two years to complete because of the lack of technical knowledge andinformation and the need to access information from China. He thought it unlikelythat a formal risk assessment would have been prioritised because the availableinformation indicated a low risk compared to other imports, such as other types ofnursery stock and fruit, which were regarded as being of higher and known risk.300 This assumes that this decision was actually justiciable, which the Crown does not accept.See above at [167]–[191].It is notable, too, that Dr Ormsby, whose evidence as to what should have beendone the Judge accepted and relied on, described an informal process when explainingwhat he considered ought to have happened. Although the Judge was right to identifyfeatures of the Kiwi Pollen application that justified a careful risk assessment, on thebasis of Dr Ormsby's evidence, that could have been achieved through the informalprocess that was adopted. The real issue is whether any informal assessmentundertaken was carried out with reasonable care in all the circumstances. In our view,the evidence shows that it was not.Dr Sathyapala said, in relation to the assessment, that becausethe PHEL Review had not identified any hazard in the form of organisms associatedwith kiwifruit they could not go further in terms of risk analysis but could, and did,consider the uncertainties associated with the proposed importation. Consideration ofthe uncertainties led to the conditions that were imposed. However, it is evident thatthe critical uncertainty was not properly identified — that is, the risk of other plantmaterial being imported along with the pollen.The respondents point out that Psa was a known pest associated with kiwifruit,that a relevant MAF data sheet identified it affecting flowers and other plant parts,and that it is usually introduced into new regions through infected nursery material.If there was any risk of plant material other than pure pollen reaching New Zealandthrough the importation of pollen, there was an obvious risk of Psa infection. Such arisk clearly existed because it was possible for other plant parts to be milled along withpollen or otherwise enter the country with the pollen. Given the importance ofkiwifruit to New Zealand, the novelty of the proposed importation and the knownassociation of Psa with kiwifruit plant material it is difficult to think that there couldbe any serious objection under the SPS Agreement to a precautionary approach beingtaken to the importation of milled pollen.Therefore, we consider that although an adequate risk assessment could havebeen undertaken informally, it required the Plant Imports Team and RAG to havesignificant knowledge about the proposed importation to do so.Although the application outlined the manufacturing process, it is clear thatthe Plant Imports Team lacked a sufficient understanding of the process to make anadequate assessment of it.301 Ms Dickson, who handled the application, did not knowhow kiwifruit pollen was milled and did not know that, in practice, pollen was unlikelyto be "pure". The Judge recorded this aspect of the evidence:[789] [Ms Dickson] thought that milling flowers would involve breakingthe flowers into quite small pieces, probably drying it and separating pollenfrom the rest of the milled material but "I can't say for sure because I actuallydon't know". Whether it could come with live bacteria was a technicalquestion she "wouldn't really like to answer". She said that if the senioradvisor, Mr Hartley, did not know, then advice from PHEL would probably besought.Likewise, Mr Hartley thought that milling would probably remove extraneousmaterial and thought that requiring milling to be done overseas would reduce the riskof contamination from such material.The Judge concluded:[817] In summary, the MAF personnel involved in deciding on theconditions on which Kiwi Pollen imports would be approved (in December2006 and April 2007) did not take the care that reasonably was to be expectedof them in the circumstances they were in. I appreciate they were busy andunderstaffed. However there was no pressing urgency to respond to KiwiPollen's request. The proper response was that which Mr Baring gave whenKiwi Pollen's proposal to import vacuum-collected pollen was raised. [818] The failure to take reasonable care involved failing to identify theneed for consultation on Kiwi Pollen's request, or otherwise obtaining moreinformation about clarifying the pollen milling process. It also involved notobtaining formal confirmation from RAG in December 2006 that the PHELReview could be relied upon for Kiwi Pollen's import request. Mr Hodder criticises this finding on the ground that the failure to ask the rightquestions about the milling process effectively amounts to negligent informationgathering by a government agency, which is not actionable. This submission relied onthe decisions in Adams v Borrel and George v Newfoundland and Labrador,302 both ofwhich we have already discussed in the context of the PHEL Review. However, those301 The 2007 Kiwi Pollen application stated "[c]losed male flower buds are harvested, macerated,dried, and the pollen extracted by machine, then stored at minus 18 degrees [Celsius]".302 Adams v Borrel, above n 275, at [73]; and George v Newfoundland and Labrador, above n 170,at [128].cases concerned the very different situations of policy decisions being made based oninformation that (allegedly) had been gathered negligently (Adams) and inadequateresearch (George). As we have already concluded, the decision regarding the termson which a specific import permit application will be granted is an operational one.303The failure to obtain the necessary information to make an informed decision does notfall within the scope of general information gathering of the kind discussed in Adamsand George.Conclusion on breachWe would have held that overall the Judge was correct in her findings that,had MAF owed a duty of care to the respondents, the relevant MAF personnel actedin breach of the alleged duty by granting the import permits to Kiwi Pollen on the basisof their consideration of the 2007 Kiwi Pollen application.Specifically, the Judge was entitled to find that Dr Clover fell below therequisite standard of care when he responded to Ms Dickson's enquiry aboutthe Kiwi Pollen application.Secondly, although the Judge's conclusion that RAG had not been involved inthe decision to grant the initial Kiwi Pollen import permit was against the weight ofthe evidence and nor did the evidence support a finding that a full risk assessment wasrequired, we would have agreed with the Judge's overall conclusion that members ofthe Plant Imports Team breached their duty of care by failing to undertake an effective(albeit informal) risk assessment in relation to this unusual import permit application.Issue 3(c): Did the High Court err in holding that the acts or omissions at thepre-border stage caused the clearance and release of the June 2009 consignment?A defendant who is in breach of a duty in tort cannot be held responsible fora loss suffered by the plaintiff unless it is proven that the defendant's conduct was acause of that loss.304303 See above at [189].304 Todd, above n 98, at 1100.The respondents assert that, but for the negligence of the MAF personnel,the import permit for the June 2009 consignment would not have been granted.305Although Issue 3(c) reflects the parties' agreed list of issues dated 13 March2019, the Crown's real complaint is that the Judge failed to make a specific finding onthis issue. It frames the question as being: "Did the High Court err in (apparently)holding that the acts or omissions [at the pre-border stage] caused the clearance andrelease of the June 2009 consignment?"At trial the Crown adduced evidence that the accepted approach in determiningapplications for import permits was to treat them consistently with previousapplications, subject to any changes having occurred in the intervening period.Given the state of scientific knowledge in both 2007 and 2009, that meant there wasinsufficient evidence to justify refusing the 2009 permit because the SPS Agreementrequired positive evidence of a probable risk. The Crown maintained that importpermits for kiwifruit pollen from China between 2007 and 2009 could only have beenrefused if MAF could demonstrate that Psa was present in China, was associated withhand-collected kiwifruit pollen, could survive the milling process and would beexposed or transmitted to kiwifruit vines following importation. The Crown arguedthat none of these facts was known before 2010. Therefore, it could not be said thatissuing the 2009 permit resulted from any negligence on the part of MAF or its staff;the permit would have been issued in any event.The Judge recorded this submission early in the judgment but did not reach aconclusion on it and did not refer to it during her discussion on causation. We agreethat it should have been addressed specifically. However, there is no merit inthe argument because in our view the contest was not between the application beinggranted or refused, but whether the importation should have been required to undergoPEQ. We previously noted that, although PEQ was a mandatory requirement fornursery stock, MAF personnel erroneously assumed that in respect of pollen they hadthe power to issue import permits which did not contain a PEQ requirement.306305 The respondents also assert that Psa3 entered New Zealand with the June 2009 consignment, anissue that we deal with separately.306 See above at [62]–[64].Prior to the reconsideration of PEQ for pollen that led to the PHEL Review,MAF personnel had consistently required the inclusion in import permits of specialconditions that pollen undergo PEQ. However when the 2007 and 2009 permits wereissued the effect of the PHEL Review was understood to indicate that pollen couldsafely be imported without a period of quarantine. Consequently MAF personnel thenproceeded on the footing that specific conditions for PEQ were not required to beincluded in import permits. Nevertheless we consider that had the Plant Imports Teamadequately informed itself about the nature of the milling process and the intendedcommercial use of pollen by Kiwi Pollen in undertaking a risk assessment, it is highlylikely they would have reverted to the previous practice of requiring PEQ and imposeda specific quarantine requirement in the import permits.We would have found that, but for the breach of duty by MAF personneloutlined above, the 2009 permit to import pollen would not have been granted on theterms it was. In other words, had MAF exercised reasonable care in consideringthe Kiwi Pollen application, it is more likely than not that any permit granted wouldhave incorporated an express condition requiring some level of PEQ that would have,in turn, detected the presence of the Psa3 virus (assuming the June 2009 consignmentwas infected with Psa3). It is therefore untenable to say that MAF had no choice butto grant the 2009 permit on the terms it did, nor that the granting of the permit did notcause the loss alleged. The evidence was that for Hort16A kiwifruit the time frominfection to symptom could be as little as a week. Had the pollen been quarantined itcan reasonably have been expected that symptoms would have been visible before itsrelease.Issue 3(d): Did the High Court err in holding that MAF personnel did not breachtheir duty of care in (1) failing to impose a condition requiring microscopicinspection; (2) permitting pollen to be "milled prior to import"; and (3) failing toconsider the risk posed by kiwifruit pollen imports following the Italian outbreakof Psa3 and/or finding that such breaches did not cause the clearance and releaseof the June 2009 consignment?These issues are raised by the respondents in support of the judgment on othergrounds.Microscopic inspection conditionThe decision made in late 2006 to approve Kiwi Pollen's first application toimport kiwifruit pollen was on the basis that the conditions for import would requirethat the pollen be "microscopically inspected and found free of regulatedorganisms".307 However, neither the import permit issued on 16 April 2007 nor anysubsequent permit, including the 2009 permit under which the June 2009 consignmentwas imported, contained this condition.The fact that the condition would be imposed had been recorded in an emailfrom Ms Dickson to Ms Hamlyn on 12 December 2006. Ms Dickson, who wasoriginally responsible for preparation of the 2007 permit, had handed that task over toMr Baring in early 2007. However, although Ms Dickson was reasonably confidentthat she would have passed that email to Mr Baring, Mr Baring did not recall seeingit. The respondents allege that Mr Hartley, the senior adviser for Nursery Stock,including pollen, and Ms Cooper, the team leader of the Plant Imports Team (who didnot give evidence) were negligent in failing to ensure that the 2007 import permitincluded the agreed condition. They also allege negligence by either Ms Dickson infailing to draw the microscopic inspection condition to Mr Baring's attention orMr Baring for failing to include it in the draft permit he prepared.The Judge held that the microscopic inspection condition was intended toaddress contamination risks such as contamination by insects though it was not clearwhether anyone had actually thought about the contamination risk from plant parts orhad any particular contaminants in mind.308 The Judge found that, most likely,a mistake in the handover or documentary record keeping was the reason for thecondition not being included in the permit.309 However, the error had no causativeeffect:310307 As stated in the email referred to below at [360].308 High Court judgment, above n 2, at [825].309 At [826].310 At [827]. because it would be speculative to say what would have happened if thecondition had been included. There was no evidence from the Chineseauthorities about how they would have approached providing the necessarydeclaration had the microscopic testing condition still been retained by thetime the permit pursuant to which the anthers consignment was issued. At thattime the permit stated that "the pollen may be milled prior to import".There was evidence from Ms Hamlyn that anthers were traded. The Chineseauthorities may well have been unconcerned that they were testing anthersrather than milled pollen. Lastly, there was no evidence about whetherChinese microscopic testing would have detected Psa.The weight of the evidence was that microscopic inspection in 2007–2009would not have detected Psa. But the respondents argue that the negligent omissionof the microscopic inspection condition was, nevertheless, causative of their lossbecause:(a) microscopic inspection would have identified that the June 2009consignment contained unrefined anthers, not pollen;(b) one of the purposes of microscopic inspection was to identifyextraneous material that might contain vector regulated organisms so itdid not matter that microscopic inspection would not have identifiedPsa; and(c) the 2009 permit was for pollen and it is much more likely than not thatthe Chinese authorities would have identified that the contents wereanthers, not pollen and either declined to give the required declarationor sought confirmation from MAF as to how to proceed.The flaw in these arguments is that the only relevant characteristic of the June2009 consignment that could have been identified was the fact that it containedanthers, not unmilled pollen. That, however, would have been apparent from anordinary visual examination and the phytosanitary certificate confirmed that the June2009 consignment had been inspected. Since it was cleared for export in China thereis simply no basis for suggesting that a condition requiring microscopic inspectionwould have led to a different result.The revised wording of the import permitThe respondents' alternative argument is that the wording of the specialconditions in the 2009 import permit led to the Chinese authorities' decision to allowthe export of the anthers.When Kiwi Pollen first approached MAF signalling its wish to import frozenkiwifruit pollen Ms Hamlyn advised that the pollen would be "collected by millingunopened male flower buds, extracting the pollen and freezing". Following thediscussions within the Plant Imports Team and RAG Ms Dickson advised Ms Hamlynthat: it has been agreed that hand collected, unopened male flower buds ofkiwifruit may be collected, milled and imported. Could you please confirmthat the unopened flowers are milled in Italy, rather than here after arrival.Ms Hamlyn responded, requesting confirmation that MAF's approval for theimporting of kiwifruit pollen applied to China as well as Italy and advised:To clarify about the location of the milling: the flower buds must be milledwithin 18 hours of harvesting, therefore they are always milled in the locationthey are harvested, and the pollen processed there.A few days later Ms Dickson advised Ms Hamlyn that MAF would also requirea declaration on the phytosanitary certificate that:(1) The milled pollen has been sourced from hand collected, unopened maleflowers.(2) The pollen has been microscopically inspected and found free ofregulated organisms.The permit, granted on 16 April 2007, contained the following specialconditions:Only hand collected, unopened male flower buds may be collected, milled andimported.Consignments must be accompanied by a government issued phytosanitarycertificate stating that the male flower buds were hand collected andunopened.In a subsequent permit issued on 3 November 2008 for the importation ofpollen from Chile, however, the wording of the special conditions changed and thatchange was carried through to the subject permit issued on 30 April 2009.The amended conditions required:(1) Unopened male flower buds must be hand collected. The pollen may bemilled prior to import.(2) All consignments must be accompanied by a phytosanitary certificateissued by the National Plant Protection Organisation of the exportingcountry with the following Additional Declaration:"The male flower buds were hand collected and unopened."The evidence failed to identify the reason for the change. The MAF staff whohad signed the 3 November 2008 and 30 April 2009 permits could not recall how thechange in conditions came to be implemented.311The respondents argue that if the change in wording introduced an ambiguityas to the terms on which the pollen could be imported (conveying that pollen onanthers could be imported as well as milled pollen) such that the Chinese authoritieswould not have been concerned that they were testing anthers, then the amendmentwas causative of their loss.The Judge found that the change did lead to ambiguity because, althougha person reading it "would probably conclude the import was for pollen and notanthers that is by no means certain because 'may' does not usually mean 'must' and anthers do contain unmilled pollen".312 However the Judge did not accept thatthis failing had any causative significance because there was no evidence that thewording had caused the exporter to be confused, rather "[m]ore likely there was amisunderstanding between Kiwi Pollen and its Japanese business associate helpingwith the importation on the one hand and the Chinese orchardist on the other."313311 The authorising officer of the 2009 permit did not give evidence. However Ms Campbell, anursery stock adviser in the Plant Imports Team, countersigned the permit and gave evidence tothis effect.312 High Court judgment, above n 2, at [830].313 At [831].The Crown submits that, not only was the Judge correct to find thatthe evidence did not show a likelihood of the exporter being confused by the wordingbut, even if there was confusion, Ms Hamlyn could reasonably have been expected tobe the first point of call and was well aware that the permit was for pollen only.The Judge's rejection of the respondents' argument (and necessarilythe Crown's submission on appeal) does not seem to address the point being made.The pleading and, seemingly, the respondents' case at trial did not focus onthe exporter. The complaint was that the terms of the 2009 permit allowed anthersrather than milled pollen to be certified as required and cleared for import toNew Zealand. Whether or not Ms Hamlyn understood that the 2009 permit was forpollen only rather than anthers was unlikely to make any difference; self-evidentlythe Chinese authorities regarded anthers as falling within the scope of the 2009 permitand the evidence does not suggest Ms Hamlyn was contacted for clarification.We would have accepted the respondents' assertion that the 2007 permit wasgranted specifically on the basis of the pollen being milled prior to import and,although the original wording reflected that requirement, the later wording did not.Instead, the new wording conveyed that the pollen could be milled following exportfrom China. Given that some types of pollen, such as pear, were typically exportedunmilled (described as "rough pollen") the distinction was real.There was evidence from the New Zealand inspector that milled and unmilledpollen could be distinguished on visual identification. The respondents' argument isthat, because the Chinese authorities would have inspected the June 2009 consignmentfor the purposes of providing the phytosanitary certificate, the consignment wouldhave been refused clearance for export at the Chinese border if the correct wordinghad been used. However, as the Crown argues, there was no evidential support forthis. It was a finding invited solely on the assumption of what the Chinese authoritieswould have done. In the absence of evidence as to that, there was an insufficient basisto draw such an inference.Response to the Italian outbreakThe respondents had asserted at trial that MAF personnel were aware or oughtto have been aware of the Italian outbreak from an early stage and ought to have donemore to respond to the risk of Psa entering New Zealand. Specifically, a pest riskassessment for Psa should have been initiated and kiwifruit imports stopped byJuly 2009; had that been done the June 2009 consignment would not have enteredNew Zealand or, at least, would have been located at Kiwi Pollen's premises before itcould be used.The Judge found that mistakes were made by MAF personnel in responding tothe Italian Psa incursion but they were not negligent mistakes by any individual.Rather "with the benefit of hindsight, it can be seen that more could have been donein 2009 and 2010 and, if it had been, there was a chance the June 2009 anthersconsignment would not have set in train one or more of the pathways [to infection]".314The respondents challenge that finding.The respondents rely on the fact that Dr Sathyapala was aware that kiwifruitpollen was being imported into New Zealand coupled with her knowledge aboutthe Italian incursion (by October 2008 she was aware of the situation in Italy and byJuly 2009 of the extent of the devastation there). It is said that, as team leader of RAG,she had the responsibility for initiating a pest risk assessment, that doing so was notonerous and that it would have identified immediately that pollen was the onlypotential pathway for Psa to enter New Zealand. They point to MAF's risk analysisprocedures which specifically required a pest risk analysis where "an establishedinfestation or an outbreak of a new organism or disease is discovered withinan exporting country or area". They say that the failure to do so was negligent.We agree with the Crown that these propositions are the product of hindsightand lack a sufficient evidential foundation. There is no basis for concluding that,on the information she had at that time, Dr Sathyapala was required to take specificsteps to halt the importation of pollen.314 At [843].The June 2009 consignment was cleared at the border on 30 June 2009 andreleased to Kiwi Pollen's freight forwarders that day. The evidence was not clear asto when it was processed. Ms Hamlyn said that she put the June 2009 consignment inthe freezer and could not recall when it was processed, though in cross-examinationrecalled that had been done before the end of winter. That would mean by the end ofAugust 2009.The respondents rely, first, on communications between Dr Vanneste, a seniorscientist at Plant & Food Research, and Dr Sathyapala in October 2008. In a phoneand subsequent email conversation between Dr Vanneste and Dr Sathyapala,Dr Vanneste explained that he had been asked to find information about the economicimpact on New Zealand's kiwifruit trade in the event of Psa being present inNew Zealand and asked for any information that MAF had that might assist.But Dr Vanneste's interest in Psa in late 2008 was focused on work that he had beenundertaking for over a year towards developing a diagnostic tool for the identificationof different pathovars including Psa. Dr Sathyapala asked Ms Crook (a technicaladviser with RAG) to check what information MAF held on Psa and whether aseparate risk assessment had been undertaken on it. The response was to confirm thatthere would be serious consequences for New Zealand in the event of Psa being foundhere. Information about it was provided, with potential entry pathways identified asbeing tissue culture, budwood and cuttings. The Judge did not consider that thecontact between Dr Vanneste and Dr Sathyapala in October 2008 justifiedDr Sathyapala doing anything specific at that time.315 We see no error in that finding.Between April and July 2009 there were email communications betweenDr Everett, a member of the Plant & Food Research team, and members ofDr Sathyapala's team about the same type of work that Dr Vanneste was undertaking.Some emails were copied to Dr Sathyapala. Most were not. One email that was notcopied to Dr Sathyapala was dated 6 July 2009 and specifically drew attention to theserious effects of the Italian outbreak. It suggested that Psa "needs to be on a [HILP]list because at present we do not have [P]sa in New Zealand".315 At [834].However, Dr Sathyapala acknowledged that she had seen the email and very likelyhad discussed it with the Plant Imports Team. The Judge said:316I accept that this might have been given higher priority than it seems to havebeen given at this time. It is less clear what the outcome of that would havebeen given the approach Dr Sathyapala later took to the issue of Italian freshfruit.Not only is there no error in this conclusion but, in our view, there is no basis on whichto conclude that action taken by Dr Sathyapala at that point would have made anydifference to the outcome. The pollen had already been delivered to Kiwi Pollen and(as we come to shortly) efforts made a few months later to check whether any pollenhad been imported were unsuccessful because QuanCargo did not show the June 2009consignment.By about May 2009 Dr Vanneste was deeply involved, at Zespri's request,in investigating the Psa outbreak in Italy. In February 2009 he went to Te Puke to meetwith Italian kiwifruit growers visiting New Zealand. In March 2009 he spent time inItaly to observe the symptoms of the Psa outbreak being experienced. It was springand symptoms were easily visible. But it was not known that they were the symptomsof Psa3 as opposed to the strain of Psa known to have existed in Italy since 1992.Dr Vanneste returned to New Zealand and prepared a report for Zespri, concludingthat the cause of the disease was Psa. In order to confirm that conclusion Dr Vannestereturned to Italy in May 2009 to take samples from orchards showing symptoms.On his return to New Zealand the bacteria was isolated and identified as Psa.There was however still no indication that the cause was a different strain of Psa.To that point Dr Vanneste's work had been undertaken for and primarily funded byZespri. His work was not shared with MAF at that stage.In November 2009 the European Plant Protection Organisation issued an alertfor Psa. In December 2009, following his return from overseas, Dr Ormsby reviewedthe alert. Recognising the potential significance for New Zealand he undertook whathe described as a "mini-risk analysis" or "detailed hazard identification" includingpossible pathways for entry. Dr Ormsby checked the QuanCargo database to see what316 High Court judgment, above n 2, at [837].was being imported that could be a possible pathway for Psa. He could see that nurserystock, tissue culture and fruit had been imported. There was no specific mention ofpollen. He concluded that nursery stock was the only pathway of concern, checkedthe Nursery Stock IHS and, seeing the requirement for (among other things) PEQ forall nursery stock concluded that the pathway risk for Psa was adequately managed.He advised Dr Sathyapala, to whom he reported. Although Dr Sathyapala knew in2007 that kiwifruit pollen had been permitted to be imported that fact did not emergefrom the discussions that Dr Ormsby had with her following his review of potentialpathways. On the evidence Dr Sathyapala would have had no reason to be involvedin the 2009 permit, which was dealt with as a renewal of the 2007 permit.The Judge found that Dr Sathyapala had made assumptions about what hadbeen imported based on documentation,317 but that:318[t]he real problem was that MAF's QuanCargo records did not enable reliablesearching of importations that had occurred. Had it done so, things might havebeen different. But that is by no means clear. By this time Kiwi Pollen hadcycloned the anthers and one or more of the possible pathways for Psa to infectKairanga and Olympos were in play.This was clearly a finding of fact that was open to the Judge.It is notable that it was not until 2010 or 2011 that the scientific communityknew that Psa could be transmitted via pollen. During 2009 Dr Vanneste hadcontinued to work on identifying the reason the symptoms of Psa in Italy had been sodifferent from previous years. During 2010 tests on isolated live cells of Psa takenfrom Italian pollen showed a high level of contamination. The findings were notshared with MAF at that stage but did appear in a Zespri newsletter sent to Italiangrowers in May 2010. Other scientists (including Dr Balestra who gave evidence forthe respondents) reached the same conclusion about the same time. Dr Vannestepresented his results at the New Zealand Plant Protection Society's annual conferencein August 2011. In these circumstances there is no basis for treating the failure to takespecific steps prior to the June 2009 consignment reaching Kiwi Pollen as negligent.317 At [838].318 At [839].ISSUE 4: SECOND CAUSE OF ACTION — NEGLIGENCE AT THE BORDEROverviewThis aspect of the case concerns the border stage of biosecurity riskmanagement ie from the time goods arrive at the border until they are cleared for entryinto New Zealand. At trial the respondents alleged that the June 2009 consignmentshould have been inspected and either was not inspected or was inspected negligently.They further alleged that discrepancies in the phytosanitary certificate meant thatthe inspector should have advised the Plant Imports Team by way of an NCR and,had that been done, the June 2009 consignment would have been inspected.The allegations were directed at establishing that, in the absence of thesefailings, the June 2009 consignment would not have been released because it containedanthers rather than pure pollen (for which the permit had been issued) and becausethe inspector who cleared the June 2009 consignment was sufficiently qualified andexperienced to have differentiated the two.The Judge found that the Nursery Stock IHS required inspection of the June2009 consignment319 and no inspection was undertaken320 but that the failure to do sowas not negligent.321 The Judge also found that the failure to identify and act ondiscrepancies in the documentation by issuing an NCR was an error but that this failuredid not change the outcome.322319 At [957]. The Crown does not agree with this finding but has not appealed it.320 At [36] and [920]–[923]. There is no challenge to this finding.321 At [36] and [960].322 At [36], [970]–[971] and [977]–[980]. The first discrepancy was the difference between thespecies on the import permit and the phytosanitary certificate: see below at [448]. The other twodiscrepancies were the difference between the quantity noted on the phytosanitary certificate(4.5 kg) compared to the air weigh bill (11 kg), and the difference in exporter's name on the permitand phytosanitary certificate. The Judge found the discrepancy in quantity was explicable by thefact that a weigh bill reflects the gross weight (including packaging) whereas the phytosanitarycertificate refers only to the net weight of the product itself. In relation to the difference in theexporter's name (being Bexely Inc on the import permit and Hangzhou Yuehao AgriculturalTechnology Consulting Co Ltd on the phytosanitary certificate), the Judge found that changes inthe name of exporters was common and was unlikely to cause concern in the Plant Imports Team:at [967] and [973]–[974].The respondents cross-appeal the finding that the failure to inspect was notnegligent and the finding that an NCR would not have changed the outcome onthe basis that they are against the weight of the evidence.The respondents' reformulation of the border duty was expressed in this way:MAF and MAF personnel owed a duty of care:(B) in respect of the clearance on 30 June 2009 of a consignment ofnursery stock, being kiwifruit anthers from China.Particulars2. The duty in (B) required:(a) compliance with s 27 of the Biosecurity Act 1993;(b) compliance with the processes required by the Importationof Nursery Stock Import Health Standard;(c) compliance with the processes required by MAF's ProcessProcedure Clearance of Plants and Plant Products.The general theme of the respondents' submissions is that inspection wasmandatory under the Nursery Stock IHS and Process Procedure 41,323 so the failure toinspect must have been unreasonable.The relevant statutory provisionsSection 27 of the Act relevantly provides:An inspector shall not give a biosecurity clearance for any goods unlesssatisfied that the goods are not risk goods; or satisfied—(a) That the goods comply with the requirements specified in an importhealth standard in force for the goods (or goods of the kind ordescription to which the goods belong); and323 Ministry of Agriculture and Fisheries Process Procedure 41 Clearance of Plants and PlantProducts (16 May 2006).(b) That there are no discrepancies in the documentation accompanyingthe goods (or between that documentation and those goods) thatsuggest that it may be unwise to rely on that documentationThe Judge observed (correctly) that s 27 did not, itself, require inspection ofa consignment. Rather, it required the inspector to be satisfied as to the mattersspecified in s 27(a)–(e), one of which was that "the goods comply with therequirements specified in an [IHS] in force for the goods". The Judge framed thequestion as whether MAF personnel acted reasonably in being satisfied of the mattersin s 27.324Section 103(8) of the Act required inspectors to use best endeavours to complywith and give effect to any relevant performance or technical standards. In this casethey were the Nursery Stock IHS and MAF's Process Procedure 41. The definition ofnursery stock in Process Procedure 41 is the same as the Nursery Stock IHS definition.Clause 2.1 of the Nursery Stock IHS required inspection of nursery stock(and therefore pollen) as follows:A randomly drawn sample of 600 units, from each homogenous lot within a consignment, shall be inspected on arrival. Where a lot is comprised of lessthan 600 units, 100% inspection is required.Infestation by visually detectable quarantine pests on inspection at theborder must not exceed the Maximum Pest Limit (MPL) which iscurrently set at 0.5%. Process Procedure 41 was described as operating instructions that could beconsulted by both target evaluators and inspectors if something unfamiliar arose.It included the following provisions:7.1.1.2 You must not give a biosecurity clearance until you are satisfied thatthe goods are not risk goods or they comply with an IHS.7.3.2.1 You must physically inspect a consignment where • An IHS or PTI specifically requires this.324 High Court judgment, above n 2, at [945]–[948].7.4.3.1 All nursery stock must be inspected at the port of entry or atspecifically approved transitional facilities designed for nursery stockinspections. And, it included details of sampling which reflected those contained in the NurseryStock IHS.Inspection during the clearance processThe high number of goods entering New Zealand each year makes inspectionof every consignment impractical.325 Pre-border risk assessment and the documentsthat accompany consignments (eg customs declarations, waybills, manifests, invoices,and certifications by foreign government departments) mean that the decision toinspect is determined mainly by profiling the biosecurity risk associated with eachconsignment and targeting those warranting greater caution.The decision to clear goods is made by a target evaluator based on theaccompanying documentation or on the advice of an accredited person following theunloading of a sea container or by an inspector following inspection. The targetevaluator conducts on initial assessment of import documents for goods that needbiosecurity clearance and decides what action should be taken, including holding thegoods for further documentation or sending the goods to be inspected.The clearance process starts with consideration of the application made bythe importer or its agent for a Biosecurity Clearance Certificate (BACC).An electronic system for issuing such certificates, the Electronic BiosecurityClearance Certificate Application (EBACCA) was introduced in 2009. EBACCA wasdescribed as a virtual queue. BACC applications typically contain an air waybill orbill of lading, invoice or packing list. Other documents may include phytosanitarycertificates and import permits if a permit is required. The target evaluator assessesthe documentation, identifies the appropriate IHS to ascertain the relevant entryrequirements and ensures that any import permit conditions have been complied with.This information is entered in the MAF database known as "QuanCargo" and adirection issued for the consignment.325 The Judge gave a detailed explanation of this fact at [201]–[202] and [882]–[885] that we do notneed to record here.If the documents are compliant, the target evaluator issues directions underthe BACC appropriate to the requirements of the relevant IHS and Process Procedure.One available direction is that the cargo be inspected by an inspector. Some IHSsrequire inspection. Others do not require inspection but a target evaluator or inspectormay nevertheless consider that appropriate. The purpose of directing inspection is toensure that the biosecurity risk is covered.Inspectors are appointed under the Act to assess, manage and clear importedgoods at international airports and mail centres, ports and transitional facilities.They generally do not inspect unless directed by a target evaluator.Sometimes, however, where inspectors themselves receive mail or fax applications forbiosecurity clearance, they undertake tasks that are, strictly, those of a target evaluator.In addition, there may be occasions on which an inspector considers inspectionappropriate even though it has not been directed.If the documents do not comply with IHS requirements the response dependson whether the non-compliance is minor, such as a typographical error (non-technicalnon-compliance) or whether is actually fails to meet the requirements of the IHS(technical non-compliance). If the latter, one option is to issue an NCR to theappropriate standards team (here, the Plant Imports Team), seeking advice as to theappropriate next step.The June 2009 consignmentThe June 2009 consignment was initially dealt with by a target evaluator,Ms Edel-Singh, and then by an inspector, Mr Hodges. Ms Edel-Singh and Mr Hodgesboth gave evidence. Understandably, neither had any recollection of the June 2009consignment.326 Their evidence was based on the documents and information storedon the QuanCargo database.326 For example, the Auckland Air Cargo centre processed 10,653 air cargo consignments in 2009.Mr Hodges worked there for eight months of that year (the remainder of the year was spent inJapan undertaking offshore vehicle clearances) and during that time he issued approximately 644consignment directions.When Ms Edel-Singh first considered the EBACCA it did not havethe phytosanitary certificate required by the 2009 import permit. The June 2009consignment could not be progressed without the phytosanitary certificate soMs Edel-Singh directed that the consignment be held pending production of thecertificate.There was no indication that Ms Edel-Singh ever saw the certificate.Information on QuanCargo suggests that the certificate was produced at the AucklandAir Cargo public counter and dealt with by Mr Hodges. By then Mr Hodges had aboutsix and a half years' experience in his role. He was trained to look at the IHS, anyimport permit and the Process Procedures.Mr Hodges entered details of the phytosanitary certificate and an authority forthe release of the June 2009 consignment into QuanCargo within seven minutes ofeach other on the morning of 30 June 2009.327 He did not recall inspecting the June2009 consignment and the short period between details of the phytosanitary certificatebeing entered and the release authority being entered suggests that he did not do sobecause that would have required much longer than seven minutes.Mr Hodges did not recall making a decision about inspecting the June 2009consignment but identified factors that he "now think[s]" may have been relevant toany such decision. These were the lack of any mention in the pollen section ofthe Nursery Stock IHS and import permit about inspection, doubt that there wasanything he could usefully have inspected in its frozen state (though he accepted thathe would have been able to differentiate between pollen and anthers even in a frozenstate), frozen products were usually lower risk, the worry about damaging the productand the difficulty in resealing the package in order to keep it frozen.In cross-examination, however, he accepted that Process Procedure 41 requiredinspection of all nursery stock and that pollen was treated like other nursery stock.327 The release was printed later that day, at 4.20 pm. Although the records show Mr Hodges asprinting that document, this seems unlikely because his shift finished at 3 pm that day.He suggested that he may have failed to log out and another of the inspectors used his login toprint the release.Issue 4(a): Did the High Court err in holding that MAF personnel owed a dutyof care to Strathboss and members of the Strathboss class in respect of theclearance of the June 2009 consignment?Because the duty of care advanced in the High Court was broadly cast as a dutyto exercise reasonable care and skill when undertaking biosecurity functions andresponsibilities under the Act, the judgment did not address discretely the duty issuein relation to the inspection function. Several of the issues addressed in the context ofthe pre-border duty are also relevant here. While the Crown's quasi-legislativeargument does not arise in relation to the inspection function, our conclusion onthe justiciability of border control activity is equally applicable to the second cause ofaction.328As with the first cause of action, foreseeability is not in issue. We thereforemove directly to proximity.For the reasons explained earlier in relation to the issues of legal relationship,direct cause of harm, and Couch (No 1),329 we would have found there was sufficientproximity between Mr Hodges and the respondents,330 subject only to the questionwhether the Act is inconsistent with the imposition of a duty of care.Mr Hodges was an inspector appointed under s 103 of the Act. Hence he fellwithin the cohort of the persons specifically identified in s 163. As such he would beimmune from suit and the Crown would incur no vicarious liability in respect of hisconduct subject to the meaning of the proviso to that section.However, as noted in our earlier discussion of the proviso in s 163,331 for thepurpose of the duty analysis we proceed on the assumption that the phrase "reasonablecause" is synonymous with "reasonable care". On that approach, if it could bedemonstrated that Mr Hodges acted without reasonable care, then the protection fromcivil liability which s 163 would otherwise provide would not avail him. It follows328 See above at [191].329 See above at [218]–[239].330 Indeed, as noted above at [239], MAF had greater control over risk goods at the importation stageas a consequence of actual physical custody of the consignment.331 See above at [216]–[217].that, construed in that manner, s 163 would not exclude a duty of care in relation toconduct or omissions which involve an absence of reasonable care on his part.Our earlier conclusions on the Crown's three distinct policy reasons for thenegation of a duty of care also apply to the inspection function.332 The same potentialindeterminacy implications could follow whether an incursion occurred through afailure to undertake a risk assessment in the import permit application process or afailure to conduct an inspection of the June 2009 consignment at the border.Consequently, as in the case of the first cause of action, policy considerations,primarily the spectre of indeterminate liability, would have led us to conclude that theimposition of a duty of care in respect of the inspection of imported goods would notbe fair, just or reasonable.Issue 4(b): Did the High Court err in holding that MAF personnel did not breachtheir duty of care by acts or omissions at the border clearance stage and/or thatany breaches did not cause the clearance and release of the June 2009consignment?Did the Judge err in finding that the Nursery Stock IHS was ambiguous?The Judge concluded that, although it could have been expressed more clearly,the Nursery Stock IHS required inspection of the June 2009 consignment:333In contrast, the import plant teams were clear that pollen was "nursery stock"and therefore required an inspection. I agree with them that this was a correctinterpretation of the Nursery Stock IHS. Pollen was "nursery stock" becauseit was "parts of plant imported for growing purposes" and because it wasspecifically dealt with in the Nursery Stock IHS.The Judge considered that Process Procedure 41 did not clarify the NurseryStock IHS but simply:334 required an inspection if an IHS or a permit required this. It also requiredan inspection if the goods were nursery stock. However "nursery stock" wasdefined in the same way as the IHS, without any specific reference to pollen.332 See above at [242]–[272].333 High Court judgment, above n 2, at [957]. The Crown does not challenge this conclusion.334 At [960].The Crown disagrees with this interpretation but it is not a ground of challenge.Notwithstanding her conclusion that the Nursery Stock IHS required the June2009 consignment to be inspected, however, the Judge found that Mr Hodges had notacted negligently in failing to inspect because the obligation to inspect was not clearfrom the Nursery Stock IHS:[960] In my view Mr Hodges did not fall below the standard of reasonablecare when he consulted the Nursery Stock IHS (as I accept he is likely to havedone) and determined that inspection of the contents of the pollenconsignment was not required by the IHS. If he consulted the ProcessProcedures as well, the same decisions could reasonably have been made. [961] I therefore agree that it would have been clearer to have includeda requirement for visual inspection as part of the conditions of the permit.Absent that condition, Mr Hodges' decision not to carry out a visual inspectiondid not lack reasonable care with reference to the IHS or with reference tothe Process Procedures which directed an inspection if the IHS required.This means that whether Mr Hodges inspected the contents ofthe consignment was a matter for him to assess in the circumstances.[962] I accept Mr Hodges' reasons, as to why it was likely he decided not toinspect the consignment's contents, were reasonable. The Judge's finding that the Nursery Stock IHS was unclear was based onthe fact that the definition of nursery stock did not expressly refer to pollen and thatpollen was only mentioned in cl 2.2.3.335 She specifically drew on the evidence ofMs Willmot, an experienced target evaluator, who said that cl 2.2.3 ofthe Nursery Stock IHS conveyed to her "take all you need to know about the pollenfrom the import permit".336The respondents say that the Judge's approach and conclusion were wrongbecause:(a) there was no ambiguity in the Nursery Stock IHS and the relevant MAFpersonnel knew the June 2009 consignment was of nursery stock,subject to the Nursery Stock IHS, and agreed that inspection wasrequired;335 At [959]. For convenience, cl 2.2.3 of the Nursery Stock IHS stated "[a]n import permit must beobtained from MAFBNZ prior to import".336 At [959].(b) the evidence of Ms Willmot on which the Judge relied was not relevantto the issue of whether inspection was reasonably required underthe Act and therefore inadmissible in determining the standard of care;and(c) none of the factors identified by Mr Hodges justified the failure toinspect.The respondents also rely on acknowledgments by the relevant MAF personnelin cross-examination that this was the effect of the Nursery Stock IHS.The Crown maintains its position that the Nursery Stock IHS, at as June 2009,was ambiguous. Ms Higbee, for the Crown, points to a review ofthe Process Procedures undertaken in April 2009 which identified the lack of clarityin relation to pollen. This review led to a change to cl 2.2.3 of the Nursery Stock IHSthat specifically required all import requirements to be detailed on the import permit.Mr Hodder submits that this demonstrated the complexity and ambiguity ofthe Process Procedures.Whether the Nursery Stock IHS was ambiguous is a question of law.The acknowledgment by MAF personnel as to the correct construction is not relevant.We disagree with the Judge's conclusion that the Nursery Stock IHS was unclear andambiguous. First, the definition of nursery stock as contained in both the NurseryStock IHS and Process Procedure included "[w]hole plants or parts of plants importedfor growing purposes". Pollen clearly falls within this definition.Secondly, the requirement for inspection of all nursery stock appeared as the first itemin the Nursery Stock IHS document, in the section headed "Import Specification andEntry Conditions". It is the only requirement imposed "on arrival".337Thirdly, the fact that it was understood as applying to all nursery stock is furthersupported by cl 7.4.3.1 of Process Procedure 41, stating "[a]ll nursery stock must beinspected at the port of entry". Although there were changes made to the NurseryStock IHS later, to clarify it, they made no appreciable difference to the clarity ofthe requirement to inspect.337 Nursery Stock IHS, cl 2.1.While we accept the concise form of the section specifically referring to pollen(cl 2.2.3) might add some confusion, that provision was clearly placed within cl 2,which commenced with the basic condition that all nursery stock subject tothe Nursery Stock IHS were subject to the minimum requirement of inspection uponarrival. We therefore would have agreed with the respondents that the Nursery StockIHS and Process Procedure 41 unambiguously required inspection.Error in determining the standard of care: reliance on Ms Willmot's andMr McLaggan's evidenceWhether Mr Hodges' failure to inspect was negligent could only be determinedby reference to the standard of care required of a person in his situation. As discussedabove at [300], the standard of care is typically determined on the basis of evidencefrom someone with sufficient knowledge and/or experience to be able to say what areasonable person in the situation of the defendant would have done. In the contextof this case, that would turn on the evidence ie the practice of a skilled and informedMAF inspector exercising his or her functions in respect of the border processes forpollen imports under the Act in the circumstances of New Zealand border control inJune 2009.Where a claim of negligence involves the breach of a statutory standard,non-compliance with that standard may be regarded as prima facie, possibly evencompelling, evidence of negligence but is not determinative of a failure to exercisereasonable care.338 Likewise, compliance with general practice, although relevant tothe assessment of the standard of care, is not necessarily determinative.339The Judge did not make an express finding as to the applicable standard ofcare. However, she addressed evidence of border personnel that went to this issue.This evidence came mainly from target evaluators Ms Willmot and Mr McLaggan.The Judge expressly relied on their evidence in finding that Mr Hodges had not actednegligently.340338 Algie v DH Brown and Son Ltd [1932] NZLR 779 (CA) at 785; Oceanview Holdings Ltd v ClarryM O'Byrne Ltd [1989] 1 NZLR 574 (HC) at 582; and Todd, above n 98, at [7.4.02].339 See, for example, Lloyds Bank Ltd v Savory & Co [1933] AC 201 (HL); Edward Wong FinanceCo Ltd v Johnson Stokes & Master [1984] AC 296 (PC); and Todd, above n 98, at [7.4.01].340 High Court judgment, above n 2, at [950].Ms Higbee submits that since border personnel generally thought that allrequirements for pollen would be stated on the import permit required by cl 2.2.3 andthe permit was silent as to inspection, it was reasonable for Mr Hodges to concludethat inspection was not required. This was the effect of evidence given byMs Willmot.341 The respondents say that the Judge should have placed no weight onMs Willmot's evidence.Ms Willmot was a team leader with the Target Evaluation Team from 2007until 2015, and then a technical adviser for that team. She gave an extensiveexplanation of target evaluation, including the method by which target evaluatorsidentify the applicable IHS and determine the relevant entry conditions (a step thatMr Hodges would also have taken).Ms Willmot described the following process of identifying the correct IHS foran import that is uncommon. This part of her evidence was not challenged.Following receipt of the application, a word search would be made for the relevantimport. If the search produced more than one IHS, each would need to be consideredto determine which is the most appropriate. Target evaluators do not read the wholeIHS because they have a standard layout. Instead, the practice is to skim over the firstsections that are not specific to the particular good being considered to get tothe relevant entry conditions. Where the consignment has an import permit,the target evaluator should follow the requirements of both the applicable IHS and thepermit. Ms Willmot said that it took on average 10 to 13 minutes to processan application, excluding complex applications. None of this evidence wascontentious.However, Ms Willmot went on to explain what she thought she would likelyhave done when checking the Nursery Stock IHS that applied to the importation ofChilean kiwifruit pollen by Kiwi Pollen that she dealt with in January 2009.342 This isthe evidence under challenge.341 At [950(a)–(b)] and [963].342 See above at [37].Ms Willmot thought it likely that she would have "opened up the Nursery StockIHS, pressed 'control F' and typed in 'pollen'". That would have taken her to cl 2.2.3of that IHS which provided that an import permit had to be obtained.Alternatively, she "could have" scanned the contents page and clicked on "importationof pollen" which would have taken her straight to cl 2.2.3. Because the permit requireda phytosanitary certificate she would then have gone to the certificate to check that itwas in order. Ms Willmot did not recall considering the inspection paragraphs inthe Nursery Stock IHS, though she was familiar with them. She commented:Reading paragraph 2.1, it tells me that we should be inspecting everyconsignment of nursery stock. But paragraph 2.1 in the Nursery Stock IHS isa perfect example of something I would expect, from a practical perspective,to probably skim over. It is one of the more generic statements in the standard.The general knowledge about this standard is that Quarantine Inspectorsshould inspect nursery stock.Ms Willmot considered that the lack of any specific reference to pollen in cl 2.2(the basic conditions) and cl 2.2.1.1 (being the section that listed the type of nurserystock only requiring the basic entry conditions) reinforced her belief that pollen wastreated as a special type of nursery stock with specifically listed requirements onthe permit. Ms Willmot did not say that this view was one that prevailed among borderstaff.The respondents say that this evidence, which they characterise as a post-factoreconstruction of what Ms Willmot would have done in relation to the earlier Chileanconsignment, ought not have been given any weight as supporting a finding thatMr Hodges was not negligent in not inspecting the June 2009 consignment.We agree. Ms Willmot had no recollection of what she had done in relation tothe Chilean import. Her evidence on this aspect was not framed so as to conveythe general practice, nor even her own practice, but only what she thought(self-evidently with hindsight) she would have done.Nor do we consider that the Judge's finding was supported by the evidence ofMr McLaggan, the team leader for Target Evaluation at the Auckland BiosecurityCentre between 2008 and 2015.343 Mr McLaggan said in his brief that he would nothave expected the June 2009 consignment (being small, arriving by air withgovernment certification) to have been inspected because there would not be anythingvisible, and opening the package would risk destroying the goods, especially frozengoods.344 However, in cross-examination, Mr McLaggan acknowledged that hisobservations did not apply to goods for which inspection was required under an IHS(which the Judge held to be the case).345 Accordingly, the Judge's description ofMr McLaggan's evidence as being that "he would not have expected the June 2009anthers consignment to have been physically inspected at the border" was not quiteaccurate.346Viewed as a whole, the evidence shows that what was required ofan experienced inspector faced with the decision whether to inspect an importation ofnursery stock (including an unusual importation such as kiwifruit pollen) was eitherfamiliarity with the relevant IHS, or reasonable care in identifying the terms of the IHSand consulting the Process Procedure 41. There is no basis on which to conclude thata reasonably competent inspector in Mr Hodges' position would have ignoredthe relevant clauses of the Nursery Stock IHS and Process Procedure 41 and limitedhis or her response to what was required by the import permit.Negligence by the inspectorMr Hodges identified five factors that he "now" thinks "may" have beenregarded as relevant to a decision not to inspect. The first was that there was nothingin the pollen section of the Nursery Stock IHS or the permit requiring inspection(in other words, a wrong interpretation of the Nursery Stock IHS). The other fourreasons given by Mr Hodges as possibly relevant to the decision not to inspect relatedto the fact that the June 2009 consignment was frozen (there would be nothing to see,343 Auckland Biosecurity Centre was the location at which the application for the June 2009consignment was lodged in QuanCargo. The June 2009 consignment was then cleared byMr Hodges at the Air New Zealand compound.344 Inspection would only be undertaken if there was doubt about the veracity of the declared contents.This reflected the balance struck between maintaining biosecurity whilst not causing unnecessarydelay or damage to goods.345 See above at [418].346 High Court judgment, above n 2, at [950(c)].frozen products are usually lower risk, the risk of damaging the pollen and thedifficulty of resealing the package).347The Judge found that Mr Hodges had consulted the Nursery Stock IHS anddetermined that inspection was not necessary,348 and she accepted as reasonableMr Hodges' explanations as to why it was likely he decided not to inspect the June2009 consignment's contents.349 She found that those reasons "are supported byMr McLaggan [and Ms] Willmot".350 As to the relevance of the June 2009consignment being frozen, the Judge noted that both Mr McLaggan and Mr Hodgeshad accepted that it was possible to inspect the consignment without damaging it butnoted that:351 the Process Procedures contemplate Nursery Stock may arrive frozen.However they do so by indicating that discretion is required when reconcilingthe number of lots with the consignment documentation. The fact that a frozenconsignment can be inspected without damaging it does not mean its frozenstatus is irrelevant to a Quarantine Inspector's decision on whether to inspectit.The Crown supported these conclusions on the basis that the misconstructionof legislation by a public servant will rarely be considered negligent.352The respondents, however, say that there was no room for interpretative error giventhe clear terms of the Nursery Stock IHS and do not accept that any of the reasonsadvanced by Mr Hodges were relevant to the decision not to inspect.If Mr Hodges did not inspect because he misunderstood the Nursery Stock IHSor misinterpreted it as not requiring inspection, a basis exists for the Judge'sconclusion that he had not acted negligently. But Mr Hodges did not suggest that thesefactors were, in fact, what impacted his thinking on the day. Mr Hodges had norecollection of dealing with the June 2009 consignment. There was no direct evidenceof why he did not inspect. He was unable to say what his view was at the time about347 Although Mr Hodges referred to the cargo as frozen it is not clear from the evidence how he knewthat as the phytosanitary certificate does not refer to it. However the point did not arise inargument.348 High Court judgment, above n 2, at [960].349 At [962].350 At [962]–[963].351 At [964].352 Takaro Properties Ltd v Rowling [1987] 2 NZLR 700 (PC) at 710 and 717.the obligation to inspect. For example, in re-examination he was asked to recallwhether he thought he had discretion as to inspection of pollen imports. He responded"I don't entirely recall but the concept of something that was a nursery stock but frozenmight have had some discrepancies, but other than that" In cross-examination heaccepted that Process Procedure 41 required inspection of all nursery stock and thatpollen was treated like other nursery stock. In these circumstances, any finding as towhy Mr Hodges did not inspect could only be made by inference, including(if warranted) Mr Hodges' usual practice. It will, however, be evident from ourprevious conclusions that there was no adequate evidential basis for such a finding.The Nursery Stock IHS was not ambiguous. The timing suggests thatMr Hodges probably did not follow his usual practice of consulting the IHS; he saidthat the process of checking one package of something small with the clearanceinvoice would take anywhere between 15 minutes to an hour, yet he cleared the June2009 consignment in seven minutes. Ms Willmot's evidence on this point wasinadmissible and Mr McLaggan's evidence (taken as a whole) did not supportMr Hodges. Mr Hodges also made at least one other acknowledged error in failing toidentify discrepancies between the import permit and the phytosanitary certificate.In these circumstances we are not satisfied that there was a sufficient evidential basisfor finding that Mr Hodges had considered, but misinterpreted, the Nursery Stock IHS.Conclusion on breachWe would have agreed with the Judge that the consignment had to be inspected.But we would have held, contrary to the Judge's finding, that the failure to do so fellbelow the standard of care expected of skilled and informed MAF personnel in thecircumstances. Although the evidence showed that the target evaluators would havetreated pollen as a distinct form of nursery stock that fell outside of the entry conditionsstipulated by the Nursery Stock IHS, this did not reflect the Nursery Stock IHS andnor was it the view held by the Plant Imports Team. The failure to apply the entryconditions of the Nursery Stock IHS was not due to misconstruction but rather a failureto properly consider the relevant documents and regulations.Causative effect of failing to inspect and failing to issue an NCRAs noted, the thrust of the respondents' argument is that, had the June 2009consignment been inspected, Mr Hodges would have identified the fact that itcontained anthers rather than pollen and would therefore not have complied with thedescription of the goods permitted to be imported. In fact, for the reasons we havealready discussed in relation to the wording of the 2009 permit, the existence of anthersin the June 2009 consignment would have satisfied the 2009 import permit becausethe import permit allowed for either milled or unmilled pollen.353 Of course, unmilledpollen was not what was intended when the decision was made in December 2006 toallow the Kiwi Pollen application. But the wording of the 2009 import permit asultimately framed did not reflect that decision. This was undoubtedly a serious failingby those who prepared the 2009 import permit. Mr Hodges' failure to inspect howevercould have had no causative effect because of the terms of the 2009 import permit.The respondents' final head of challenge on cross-appeal was to the Judge'sfinding that issuing an NCR would have not led to the June 2009 consignment beinginspected.The evidence was consistent that there was a discrepancy between the speciesidentified in the import permit and the phytosanitary certificate which should havecaused Mr Hodges to send an NCR to the Plant Imports Team, whose role includedadvising on NCRs. What would have happened therefore depended on the responseof the Plant Imports Team. No policy document existed to indicate what should occur.Ms Campbell, the adviser then responsible for Nursery Stock in the Plant ImportsTeam, said that the discrepancy in the phytosanitary certificate would have beenunlikely to cause concern because the same requirements imposed by the Actinidiaschedule in the Nursery Stock IHS would apply to any species of Actinidia pollen.354She suggested the available options as being for the importer to have the phytosanitarycertificate reissued or, if that were not possible, an importer declaration stating thecorrect species.353 See above at [375].354 Although the Actinidia schedule in the Nursery Stock IHS did not apply to pollen, that schedulerelevantly shows that there is no distinction between the various species of Actinidia forbiosecurity purposes.Dr Butcher's evidence was similar, saying that there was no way of knowingexactly how an NCR would have been dealt with by the Plant Imports Team at thattime. This was because the NCR process was essentially another assessment process,based on the nature of the discrepancy and whether it represented a material change inthe risk that MAF was dealing with.The Judge accepted that there was a general expectation within the PlantImports Team that when a permit for pollen was issued the consignment would beinspected at the border clearance stage and accepted that this fact supportedthe argument that there would have been inspection had the matter been referred tothe Plant Imports Team through an NCR.355 But she concluded:[977] On the other hand, what [the Plant Imports Team] expected when theyissued pollen permits is not necessarily what would have occurred in responseto an NCR. It is certainly possible Plant Imports would have asked whetheran inspection had been carried out (and thereby learned that it had not). Butit is not necessarily what would have happened. Dr Butcher said that there isno way of knowing exactly how the NCR would have been dealt with by thePlant Imports team at the time. This is because the NCR process is essentiallyanother assessment process. It is based on the nature of the discrepancy andwhether this materially changes the risk that MAF is dealing with. PlantImports did not have any policy document which stated what was to occur.[979] In this case the phytosanitary certificate was an original one.It contained the necessary declaration, to conform to the permit, thatthe pollen had been produced from hand collected and unopened male flowerbuds only.[980] In these circumstances it cannot be said with any confidence thatan NCR concerning the species would have led to the consignment beingdestroyed or inspected. If, instead, contact had been made with the importerfor clarification of the species, it is quite possible the border staff would havebeen told the species' name was incorrect on the certificates. The mistakeas to species was therefore in the certificate, not in the contents ofthe consignment (which, as it happened, contained anthers rather than milledpollen).The Judge determined this issue on the burden of proof, finding thatthe respondents had not discharged the burden of showing that, more likely than not,the exercise of reasonable care would have resulted in the June 2009 consignment355 High Court judgment, above n 2, at [976].being inspected, destroyed or returned to the exporter rather than reaching itsdestination at Kiwi Pollen.356Mr Salmon argues for the respondents that this conclusion was against theweight of evidence, given the expectation of the Plant Imports Team that the NurseryStock IHS required inspection. The Crown says that the relevant discrepancy did notraise any question about inspection and there was no evidence that, even if an NCRhad been generated, inspection would have been raised as an issue. Ms Higbee arguesthat this point had not been put to any of the witnesses from the Plant Imports Teamand the border staff who gave evidence did not agree that an NCR would have led toinspection.In fact, it is clear that the June 2009 consignment should have been inspectedat some stage. But for the reason just discussed we would have found that the issueof an NCR would have made no difference; the discrepancy in the documentationwould likely have been resolved and, because of the wording of the import permit,inspection would not have disclosed anything untoward.ConclusionThis ground of cross-appeal would have failed.ISSUE 5: CAUSATIONIssue 5(a): Did the High Court err in holding that Psa3 entered New Zealandwith the June 2009 consignment?At trial the respondents asserted that, on the totality of the evidence, Psa3entered New Zealand with the June 2009 consignment. Specifically, the epicentre ofthe outbreak was at an orchard owned by Kiwi Pollen's principals (Kairanga) andanother orchard close by (Olympos); plant material and pollen were known to bevectors for Psa3, there were opportunities for infection to spread to the orchards fromwhere the June 2009 consignment was processed several kilometres away, the June356 At [981]–[982].2009 consignment came from Shaanxi Province in China; and genetic evidence linkedthe strain of Psa3 found in Te Puke to Shaanxi.The Judge accepted these assertions.357 Her findings can be summarised asfollows:(a) Based on the genetic evidence and evidence about the epicentre,the spread of reported symptoms and the known characteristics of Psa3,the incursion was caused by a single recent event within five years priorto November 2010.358(b) It was likely that Psa3 began to multiply somewhere close tothe Kairanga and Olympos orchards.359(c) Psa3 could have entered New Zealand with the June 2009 consignmentbecause Psa3 could have survived on the anthers during transport fromShaanxi to New Zealand and during milling of the pollen.360(d) There were a number of ways in which Psa3 could have infectedthe Kairanga and Olympos orchards, although it was not possible to saywhich, if any, of those identified were the most likely. Even if none ofthose identified as possible pathways caused the incursion, there weremultiple pathways by which infection could have occurred.361(e) Genetic evidence and the testing of a subsequent consignment of pollenimported by Kiwi Pollen from China indicated that the particular strainof Psa3 that entered New Zealand probably originated in China.362(f) On the basis of the genetic evidence, it was "quite possible andplausible" that the New Zealand strain of Psa3 came from Shaanxi and357 At [1253].358 At [1253(a)–(c)].359 At [1253(d)].360 At [1253(e)].361 At [1253(f)].362 At [1253(g)].was a close relative of a strain of Psa3 found in Dangdongcun,Mei County, Baoji Prefecture in the Shaanxi Province (less than 50 kmfrom the orchard where the anthers were sourced).363(g) There was no other known source for the incursion.364The Crown says that the Judge erred in three broad ways. First, by puttingweight on the Crown's failure to advance a counter-factual. Secondly, by takingthe wrong approach to the assessment of circumstantial evidence and failing to applythe requisite standard of proof. Thirdly, by relying on inadmissible genetic evidencesaid to link the Psa3 strand found in Te Puke to Shaanxi. Mr Hodder argues that theseerrors led to incorrect findings regarding Shaanxi as the source of the New Zealandstrain of Psa3, Kairanga and Olympos as the epicentre of the incursion and the meansby which the orchards at the epicentre were infected.Did the Judge wrongly require the Crown to prove a counter-factual?The Crown says that the cause of the Psa3 incursion is unlikely ever to beknown. Mr Hodder maintained at trial (and on appeal) that the Crown did not knowand did not have to prove how Psa3 came into New Zealand. Although he positedeither inadvertence or smuggling, the Crown's firm position was that this was a matterfor the respondents to prove and the existence of these other possibilities made thatvery difficult. The Crown resisted any suggestion that it had an onus to advance theother possibilities on the balance of probabilities standard.After an extensive discussion about the means by which Psa3 enteredNew Zealand and infected the respondents' vines, the Judge concluded thatthe epicentre of the incursion was the orchard owned and managed by the principalsof Kiwi Pollen (Kairanga) and the orchard across the road (Olympos), that there wereseveral viable ways in which that infection could have occurred and, more likely thannot, the strain of Psa3 that infected the vines came from Shaanxi in China, which was363 At [1253(h)].364 At [1253(i)].the area from which the June 2009 consignment likely came.365 Following thatdiscussion the Judge referred to the lack of any alternative theory by the Crown:[1250] At the pre-trial stage the defendant was directed to plead an alternativetheory if he had one. The defendant has been up front that he does not haveone. Nor is there any support for an alternative theory in the evidence. The defendant's position is that it will never be known how Psa enteredNew Zealand. While it may never be proven to a level of complete certainty,that is not the test in a civil claim.Then, in summarising the reasons for concluding that the June 2009consignment was the source of the Psa3, the Judge included as one of the reasons:366There is no other known source for the incursion. Other conceivably possiblepathways are unlikely and there is no evidence to suggest they in facthappened.On appeal the Crown says that the Judge wrongly treated the Court's task asbeing to determine the cause of the incursion rather than to decide whetherthe respondents had discharged their burden of proof.367 First, the Judge placed weighton the Crown's failure to offer an alternative cause. Secondly, she acceptedthe respondents' causation theory, in part because there was no other known cause forthe incursion.We agree that whether the Crown offered an alternative theory or not wasirrelevant to the question whether the respondents had discharged the burden onthe evidence they had adduced. However, we are satisfied that the Judge approachedthe causation issue very much on the basis that the burden lay with the respondents.368By the time the Judge came to make the comments now complained of, she hadalready considered the respondents' theory of causation and reached conclusions thatwould support a finding that the respondents had discharged the burden of proof.Notwithstanding its position at trial that it was not advancing a particularcausation theory, the Crown did adduce evidence about the incidence of illegalimportation, including illegal importations of kiwifruit plant material. The Crown did365 At [996]–[1235].366 At [1253(i)].367 Referring to Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 (HL) [The Popi M] at 951.368 See, for example, High Court judgment, above n 2, at [983], [985] and [987]–[988].not rely on this evidence to prove a causation theory but rather to demonstrate thedifficulty faced by the respondents in proving that the June 2009 consignment wasthe source of the Psa3 incursion. We see no error in the Judge referring to thisevidence.369 Doing so could not fairly be regarded as undermining the conclusionsshe had already reached on this issue. The comment amounted to no more thanan acknowledgment of the Crown's case at trial.Nor do we see the Judge's comment at [1250] as to the lack of any alternativetheory as wrongly imposing a burden on the Crown. The absence of any otherplausible theory is, in itself, a matter that the Judge was entitled to take into accountin assessing the likelihood that the respondents' theory of the case was correct.Did the Judge apply the correct legal principles in assessing the circumstantialevidence?The Judge considered that the circumstantial evidence was properly viewed as"strands in a cable"370 rather than "links in a chain".371 At trial, and on appeal,the Crown contended for the latter, asserting that each individual factual "link"required proof on the balance of probabilities before an inference could be drawn thatcould be used for the ultimate conclusion on causation.In setting out the relevant principles, the Judge relied on the followingexplanation in Milton Keynes Borough Council v Nulty:372[34] A case based on circumstantial evidence depends for its cogency onthe combination of relevant circumstances and the likelihood or unlikelihoodof coincidence. A party advancing it argues that the circumstances can onlyor most probably be accounted for by the explanation which it suggests.Consideration of such a case necessarily involves looking at the whole picture,including what gaps there are in the evidence, whether the individual factorsrelied upon are in themselves properly established, what factors may pointaway from the suggested explanation and what other explanation might fit thecircumstances. [After such consideration] the court has to stand back andask itself the ultimate question whether it is satisfied that the suggestedexplanation is more likely than not to be true. 369 At [1250].370 Actually the more usual analogy is "strands of a rope": see, for example, Watt v R [2014] NZCA459 at [13].371 High Court judgment, above n 2, at [990].372 At [993], citing Milton Keynes Borough Council v Nulty [2013] EWCA Civ 15, [2013] 1 WLR1183.The Judge then described the required approach as it applied to the presentcase:[1252] The plaintiffs' case is a circumstantial one. It involves looking at allof the circumstances that have been established, what factors point away fromthe inference the plaintiffs ask the Court to draw from them and what otherexplanation might fit the circumstances. The Court must stand back and lookat the picture as a whole and determine whether it is satisfied, on rational andobjective grounds, that the case for believing the June 2009 anthersconsignment was the cause of the incursion is stronger than the case for notso believing.Although there was no criticism from the Crown of the general principlesstated in Milton Keynes, Mr Hodder argues that the more appropriate metaphor in thispresent case is that of "links in a chain" rather than "strands in a cable". This isbecause, in order to prove their case, the respondents needed to prove a number offacts that were chronologically sequential, each dependent on the previous fact havingbeen proven. These were:(a) the June 2009 consignment was infected with Psa3;(b) the Psa3 from the June 2009 consignment moved at least 7.5 kms fromMain Rd (where the June 2009 consignment was processed) toMark Rd (where the Olympos and Kairanga orchards are located);(c) the Psa3 was applied or transferred to the Olympos orchard so as toinfect it in a way that led to symptoms of Psa3 occurring in the middleof the orchard on 21 October 2010, or to the Kairanga orchard in a waythat meant Psa3 symptoms would first occur in the C block of thatorchard in early spring 2010; and(d) either the Olympos or the Kairanga orchard was the first site of the Psa3incursion in New Zealand.We disagree. In New Zealand the recognised approach to circumstantialevidence is to treat such evidence as the "strands in a cable" rather than "links ina chain". In Thomas v R this Court rejected the latter, referring to the followingpassage in R v Exall:373What the jury has to consider in each case is, what is the fair inference to bedrawn from all the circumstances before them, and whether they believethe account given by the prisoner is, under the circumstances, reasonable andprobable or otherwise. Thus it is that all the circumstances must beconsidered together. It has been said that circumstantial evidence is to beconsidered as a chain, and each piece of evidence as a link in the chain, but thatis not so, for then, if any one link broke, the chain would fall. It is more likethe case of a rope composed of several cords. One strand of the cord mightbe insufficient to sustain the weight, but three stranded together may be quiteof sufficient strength. Thus it may be in circumstantial evidence—there maybe a combination of circumstances, no one of which would raise a reasonableconviction, or more than a mere suspicion; but the whole, taken together, maycreate a strong conclusion of guilt, that is, with as much certainty as humanaffairs can require or admit of.Thomas was, of course, a criminal case but there is no reason to take a differentapproach to the assessment of circumstantial evidence in a civil case. The onlydifference will be the point at which the fact finder is satisfied to the requisite standardof proof.A more recent application of that approach is to be found in Commissioner ofPolice v De Wys, a civil case brought under the Criminal Proceeds (Recovery) Act2009.374 In that context, this Court said:[8] The correct approach is to consider the combined effect of anumber of separate items of evidence in order to determine whetherthe Commissioner has proved, on the balance of probabilities, thatthe respondents were involved in cannabis cultivation and sale.[9] Circumstantial evidence allows a fact-finder to infer that a particularfact exists, even if there was no direct evidence of it. A single piece ofcircumstantial evidence will generally allow for more than one explanation.However, a number of separate items of circumstantial evidence,when considered together, may strongly support the drawing of a particularinference. Circumstantial evidence derives its force from the involvementfrom a number of factors that independently point to a particular factualconclusion. The analogy that is often drawn is that of a rope: any one strandof the rope may not support a particular weight, but the combined strands aresufficient to do so.[10] It is only the ultimate issue in a circumstantial case that must beproved to the required standard. In this case that issue is whether the373 Thomas v R [1972] NZLR 34 (CA) at 38, citing R v Exall (1866) 176 ER 850 at 853.374 Commissioner of Police v de Wys [2016] NZCA 634.respondents benefitted from significant criminal activity. The Commissionermust prove that they did, on the balance of probabilities. He is not required,however, to separately prove each individual strand of evidence to the balanceof probabilities standard before the Court can take that evidence into account.In Thomas v R this Court observed that "[it] is the totality of [the] narrative towhich the formula 'beyond reasonable doubt' applies".(footnotes omitted)The respondents' case was that, as a result of MAF's negligence, an infectedconsignment of kiwifruit pollen entered New Zealand and infectedthe respondents' vines. The respondents could discharge the burden of proof byshowing that, on the totality of the evidence, the cause of the damage was more likelythan not the Psa3 that came with the June 2009 consignment and that it infected thetwo identified orchards before spreading to others. We do not accept that the facts ofthis case justify a departure from the long-standing approach of treating each piece ofevidence relied on as a "strand in the cable" in the manner described in Milton Keynes.It was, therefore, not necessary to prove each piece of circumstantial evidence in aparticular order or to the standard of the balance of probabilities.During argument the Crown raised the further question as to how reliable apiece of evidence must be in order to be given weight as circumstantial evidence.This question typically arises in cases that turn on epidemiological evidence as tothe cause of a disease where the exact mechanism of infection is unknown.375 In thiscase the issue arises in relation to the evidence adduced by the respondents aboutthe genetic origin of the New Zealand strain of Psa3 and the mechanism by whichinfection of the vines at the epicentre of the outbreak occurred.Epidemiological evidence, or evidence relating to the spread of disease,only provides evidence of possibility.376 It goes no further. As to whether an inferenceof causation in a specific case could or should be drawn, Spigelman CJ said inSeltsam Pty Ltd v McGuiness:377375 The term "epidemiological" refers to the study of incidence and distribution of diseases, and oftheir control and prevention.376 See, for example, Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, (2000) 49 NSWLR 262 at[78]–[79].377 At [98] and [153]. The issue in Seltsam was whether, in determining whether exposure to asbestoscould cause renal cell carcinoma, scientific evidence of that possibility should be regarded ascircumstantial evidence which, alone or in combination with other evidence, could be sufficientto establish causation in a specific case.The courts must determine the existence of a causal relationship on the balanceof probabilities. However, as is the case with all circumstantial evidence, aninference as to the probabilities may be drawn from a number of pieces ofparticular evidence, each piece of which does not in itself rise above the levelof possibility. Epidemiological studies and expert opinions based on suchstudies are able to form "strands in a cable" of a circumstantial case.Whether or not the inference is open or should be drawn, depends on thequality of the underlying facts, particularly in terms of the degree of"possibility" which is involved.The Judge relied on the latter part of this passage as expressing the principlethat should apply to the causation question before her.378 The Crown challengesthe Judge's reliance on Seltsam on the basis that it has only limited application andhas been considered in New Zealand in the context of cases brought under the accidentcompensation scheme, from which it is clear that an inference can only be drawn fromfactors supported by the evidence and that a risk of causation is not sufficient.In Accident Compensation Corporation v Ambros this Court cited Seltsamin the context of a claim for medical misadventure under the Accident Insurance Act1998.379 Discussing the difference between the medical or scientific approach andthe legal approach to causation the Court said:[67] The different methodology used under the legal method means thata court's assessment of causation can differ from the expert opinion and courtscan infer causation in circumstances where the experts cannot. This hasallowed the Court to draw robust inference of causation in some cases ofuncertainty However, a court may only draw a valid inference based onfacts supported by the evidence and not on the basis of supposition orconjecture Judges should ground their assessment of causation on theirview of what constitutes the normal course of events, which should be basedon the whole of the lay, medical and statistical evidence, and not be limited toexpert witness evidence[68] Spigelman CJ in Seltsam said that the only time that a judge is notable to draw a robust inference of causation is in cases where medical sciencesays that there is no possible connection between the events and the injury ordeath If the facts stand outside an area in which common experience canbe the touchstone, then the Judge cannot act as if there were a connection.However, if medical science is prepared to say that there is a possibleconnection, a Judge may, after examining all the evidence, decide thatcausation is probable. 378 High Court judgment, above n 2, at [994]–[995].379 Accident Compensation Corp v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.[69] We agree that the question of causation is one for the courts to decideand that it could in some cases be decided in favour of a plaintiff even wherethe medical evidence is only prepared to acknowledge a possible connection.[70] It must, however, always be borne in mind that there must besufficient material pointing to proof of causation on the balance ofprobabilities for a court to draw even a robust inference on causation. Risk ofcausation does not suffice.(citations omitted)There is no reason why the general statements made in Seltsam and applied inAmbros ought not to apply equally in a case such as the present in which there is nodirect evidence either of the origin of the New Zealand strain of Psa3 or ofthe mechanism by which it might have spread. The court must weigh the expertepidemiological evidence expressed in opinion form with the other strands ofevidence. But to be considered, that evidence must be admissible underthe Evidence Act 2006. In other words, to constitute a "strand in the cable" each pieceof evidence must be sufficiently relevant and probative and, in the case of expertopinion, satisfy the heightened threshold for admissibility under s 25, which wediscuss in more detail in relation to the admissibility of the genetic evidence.The statutory criteria provide a baseline of reliability to all circumstantial evidencethat a Judge may take into account.To summarise, we would have found no error in the Judge's approach to herassessment of circumstantial evidence. The analogy of "strands in a cable" representsthe orthodox approach and there was nothing in the facts of the case that warranted adeparture from that. It follows that we would have rejected Mr Hodder's contentionthat each strand of circumstantial evidence was required to rise above the level ofpossibility and satisfy the burden of proof in order for the Judge to take that strand intoaccount. The Judge was entitled to take into account any piece of admissible evidenceadduced to prove causation.Admissibility of the genetic evidenceWe turn next to the issues arising from the evidence about the genetic origin ofthe New Zealand strain of Psa3.Some explanation of the relevant scientific facts is needed. A genome isthe genetic material of an organism in which the DNA molecules comprise twocomplementary strands of nucleotides or "base pairs". Bacterial DNA typicallycomprises a single circular chromosome (the "core genome"). Reproduction ofthe bacteria occurs either through the transfer of DNA by physical proximity(horizontal DNA transfer) or the division of the DNA cells into replicates, identicaldaughter cells which are clones of the parent cell (vertically inherited DNA).Gene mutations can occur in vertically inherited DNA. One form of mutationis the change of a single nucleotide, known as single nucleotide polymorphism (SNP).SNPs reside within the bacteria's core genome. Analysis of SNPs can show geneticrelationships. SNPs generally occur at a low frequency and can accumulate over time.Where the accumulation of variations is stable over time a "molecular clock" analogycan be used to determine the period over which the mutations have occurred.Whole genome sequencing (WGS) is an orthodox method of establishingthe genetic lineage of an outbreak.380 WGS was undertaken by experts engaged byboth the Crown and the respondents. They agreed that, most likely, the Psa3 outbreakin New Zealand was the result of a single entry of the bacteria into New Zealand inthe months or possibly up to a few years prior to 2010 and of a single clonal origin.In other words, the New Zealand strain of Psa3 evolved from a common ancestor.The Judge accepted those views.381 She also concluded that China was the most likelyplace of origin of the global pandemic lineage of Psa3.382 That conclusion is notchallenged. The point of contention is the Judge's finding that Shaanxi was the sourceof the New Zealand outbreak. The Judge had found that the anthers in the June 2009consignment were most likely sourced from an orchard in Shaanxi (referred to as"Orchard 1").The WGS undertaken by the parties' experts used samples of Psa3 taken fromTe Puke (the New Zealand foundation strain), from Dangdongcun, Mei County,380 WGS involves sequencing all the base pairs of DNA in a sample of bacteria and comparing themto another, fully sequenced, reference sample to identify the presence of any SNP compared to thereference sequence. However, the quality of the analysis depends on the sample size andgeographic location.381 High Court judgment, above n 2, at [1183].382 At [1186].Baoji Prefecture, Shaanxi Province (the M7 sample) and from the publicly available"GenBank". As noted, the M7 sample was taken from an orchard less than 50 kmfrom "Orchard 1". The experts were agreed, however, that the WGS analysis did notshow that the New Zealand Psa3 came from Shaanxi. This was becausethe New Zealand strains of Psa3 did not share SNPs with the overseas population fromwhich transmission from that population could be inferred. Further, the science ofphylogenetics is based on patterns of vertical inheritance which show stable inheritedcharacteristics that link strains. That would require SNPs in the core genome that linkthe New Zealand strains with Shaanxi. The Judge accepted that the data did not showthat.383The Crown argues that the Judge should have stopped at that point andconcluded that there was insufficient evidence to conclude that it was "quite possibleand plausible" that the New Zealand strain of Psa3 came from Orchard 1 in Shaanxi.However, the Judge proceeded to consider other scientific evidence — principally atheory advanced by the respondents' expert, Dr Poulter, based on the presence inthe New Zealand samples of Psa3 of elements known as integrative conjugativeelements (ICEs).384 The Judge also placed weight on a method of analysis known asMultilocus VNTR.385 The Crown says that the former was inadmissible and too muchweight was given to the latter.Evidence about PacICE1Unlike SNPs, which reside within the core genome of bacteria, ICEs resideoutside the core genome. They can be both inherited vertically and transferredhorizontally. Moreover, their horizontal transfer in or out of bacterial DNA can occurwithout leaving any trace. For that reason, they are not reliable indicators ofevolutionary relationships and are not included in phylogenetic analysis.However, Dr Poulter ascribed significance to a type of ICE, PacICE1, found in boththe New Zealand Psa3 sample and the M7 sample which, although not identical,was very similar. He did so on the basis of a molecular clock theory.383 At [1192].384 At [1197]–[1212].385 At [1213]–[1231].In summary, Dr Poulter considered that a comparison of the diversity inpandemic lineages in China, Chile, Italy and New Zealand reached by averagingthe SNPs over the preceding six to seven years indicated that these pandemic lineagesshared a common ancestor some time since 2000. On the assumption that the mutationrate is similar for the New Zealand lineage and M7, these strains would have shared acommon ancestor five to 15 years prior to their isolation.The fact that PacICE1 was present in both the New Zealand strain of Psa3 andM7 did not amount to evidence of an association between them because the nature ofPacICE1 meant that it was not possible to tell whether it was acquired vertically froma common ancestor or horizontally. But Dr Poulter described PacICE1 in Psa3 as"exquisitely rare" and therefore considered that the presence of PacICE1 inthe Shaanxi strain from 2010 and the New Zealand strains from 2010 provided"evidence of the strongest kind" linking them. The lack of any evidence of PacICE1in China other than in Shaanxi in 2010 was a point that Dr Poulter regarded as"a diagnostic statement of great clarity".The Crown's experts, Dr McCann and Professor Holmes, rejected Dr Poulter'smolecular clock theory as unreliable and based on statistically insignificant evidence.The Judge explicitly accepted their evidence, saying that Dr Poulter's analysis ofthe rate of evolution "does not provide much support for a Shaanxi origin forthe New Zealand incursion".386 But she then added:387 it is nevertheless within the bounds of reasonable possibility that the M7Shaanxi and foundation New Zealand strain shared a common ancestorrelatively recently. There are 20 SNPs between M7 and the New Zealandfoundation strain. There are strains in the New Zealand lineage with 40 SNPsfrom the New Zealand foundation strain. This provides some support,although weak, for a Shaanxi origin.However, Dr McCann and Professor Holmes also rejected the presence ofPacICE1 in both samples as significant because, apart from the inherent uncertaintyas to how it was acquired, geographic and temporal biases in the sampling affectedthe reliability of any inference sought to be drawn. The Judge accepted that it was notpossible to draw a safe inference from the sampling to date about how rare PacICE1386 At [1196].387 At [1196] (footnote omitted).is in China or elsewhere and that if it was not, in fact, rare, then independent horizontalacquisition could explain its presence in both samples.388 But the Judge neverthelesssaw significance in the fact that the ICEs in both samples were almost identical andtreated it as a piece of circumstantial evidence that could be taken into account indetermining the source of the Psa3 in New Zealand:[1212] In summary, it is reasonably possible and plausible they share a recentcommon ancestor that acquired the PacICE1. Nevertheless it also remainspossible that this is no more than an unconnected coincidence. On its own,therefore the presence of PacICE1 is not sufficiently reliable to establish thatthe New Zealand Psa3 incursion came from Shaanxi. It is, however, a factorthat can be taken into account when assessing the strength of the link betweenShaanxi and the New Zealand Psa3 outbreak. The presence of PacICE1 inthe Shaanxi and New Zealand strains is a "strand" that is established. It is alsoestablished that its presence in both strains could be explained by them sharinga recent common ancestor, although there are other possible explanations.This "strand" can be added to the other "strands" in the cable of circumstantialevidence that as a whole must be considered.Mr Hodder argues that the Judge should not have relied on either the evidenceabout the molecular clock theory or on the PacICE1 evidence. As to the former,he submits that evidence "within the bounds of reasonable possibility" is not astandard on which evidence should be admitted and relied on. As to the PacICE1evidence, he says it is not sufficiently reliable in a scientific sense to be admissibleunder s 25(1) of the Evidence Act, which allows the admission of opinion evidenceonly if: the [trial judge] is likely to obtain substantial help from the opinion inunderstanding other evidence in the proceeding or in ascertaining any fact thatis of consequence to the determination of the proceeding.In other words, s 25(1) only permits expert evidence to be heard if it is reasonablyrequired to educate the fact finder(s) in relation to particular issues they need toconsider.389In Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd this Courtdescribed substantial helpfulness for the purposes of s 25(1) as "an amalgam of388 At [1210].389 R A v R [2010] NZCA 57, (2010) 25 CRNZ 138 at [27(a)].relevance, reliability and probative value".390 The Privy Council also consideredthe application of s 25(1) in Lundy v R and endorsed the comments of the United StatesSupreme Court in Daubert v Merrell Dow Pharmaceuticals Inc regarding the factorslikely to be helpful when evaluating the soundness of novel science.391 These were:392(1) whether the theory or technique can be and has been tested:[S]cientific methodology today is based on generating hypotheses andtesting them to see if they can be falsified; indeed this methodology iswhat distinguishes science from other fields of human inquiry.(2) whether the theory or technique has been subjected to peer review andpublication:[S]ubmission to the scrutiny of the scientific community is a componentof "good science", in part because it increases the likelihood thatsubstantive flaws in methodology will be detected.(3) the known or potential rate of error or the existence of standards; and(4) whether the theory or technique used has been generally accepted.The approach to the admissibility of novel scientific evidence was reviewedagain by this Court in its subsequent decision in Lundy v R.393 This Court consideredthat the Daubert considerations were intended to exclude not just "pseudo-science"but also scientific methodologies not yet validated by the relevant scientificcommunity:[239] What then constitutes substantial help? We consider it is axiomaticthat if the fact-finder is to be helped to ascertain facts, expert opinion evidencemust meet a threshold of reliability. Otherwise the evidence will hinder, andpotentially mislead rather than help. So the majority of this Court was clearlyright when in the pre-trial appeal that identified that one purpose of what itcalled (with reference to Daubert) the "superadded admissibilityrequirements" is to protect the jury from "what is sometimes colloquiallycalled pseudo-science, meaning idiosyncratic and plainly unsatisfactorytheories". It contrasted this with the concept of "evidence from a reputablesource which is robustly and carefully researched and analysed", and observedthat the fact of disagreement among scientific experts about the degree ofreliability of evidence would not be in itself a reason for withholding it fromthe jury, provided it is substantially helpful and not unfairly prejudicial.390 Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA 67, [2016] 2 NZLR 750at [94], citing Mahomed v R [2010] NZCA 419 at [35]; and Pora v R [2015] UKPC 9, [2016] 1NZLR 277 at [41].391 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [138]–[139], citing Daubert v Merrell DowPharmaceuticals Inc 509 US 579 (1993) at 593–594.392 At [138].393 Lundy v R [2018] NZCA 410. This point was not at issue on appeal to the Supreme Court:Lundy v R [2019] NZSC 152 at [48], n 65.[241] We consider the Daubert considerations are clearly intended to rejecta wider category of evidence than idiosyncratic and plainly unsatisfactorytheories. This is because in the scientific field whether a methodology issatisfactory or unsatisfactory must depend ultimately on the response that isgiven to it by the relevant scientific community. The robustness of themethodology cannot legitimately be established by an inexpert judge or jury.The essential work of validation must occur before the courtroom is entered.That is why the Daubert considerations require testing of the technique, peerreview and publication, known or potential rate of error and whether thetheory or technique has been generally accepted. (footnote omitted)Mr Hodder argues that the nature of ICEs, including PacICE1,made the evidence insufficiently reliable as a piece of circumstantial evidence.He says Dr Poulter's conclusions are unsound because the methodology could not beproven, has a high potential error rate because of the characteristics of PacICE1 as amobile genetic element that can be acquired either vertically or horizontally, is notgenerally accepted in the relevant scientific community as a reliable way ofestablishing evolutionary relationships, and would not be accepted for publication inpeer reviewed publications within the field of evolutionary genetics. Further, PacICE1is not specific to the Psa bacteria found on kiwifruit and, because of thesecharacteristics, it is not routinely tested for. As a result, the true level of prevalence isunknown which must undermine Dr Poulter's view that it was extremely rare.The respondents do not accept that the Judge wrongly reached her conclusionon the basis of Dr Poulter's evidence as to the significance of PacICE1.Rather, they say her conclusion was based on the facts that:(a) the DNA evidence conclusively established that the Psa3 outbreak hadonly one origin and all the Psa3 in New Zealand has reproducedclonally from that single point of origin, something that all the expertsagreed on;(b) PacICE1 was present in the M7 sample, in all early strains of Psa3 inNew Zealand and in Psa3 strains in Korea and Japan that are generallyaccepted as having come with pollen imports from New Zealand; and(c) the M7 sample was collected in close proximity to the location wherethe Chinese kiwifruit flowers were grown, gathered and milled toproduce the June 2009 consignment.In our view the Judge's reliance on the presence of PacICE1 was an error.Before the Judge could place weight on it she had to be satisfied that she would belikely to obtain substantial help in determining the likely origin of the Psa3 strain fromDr Poulter's opinion that the presence of PacICE1 in both the New Zealand and M7(Shaanxi) strains of Psa3 established an association between the M7 strain andthe New Zealand incursion. That required the Judge to be satisfied that the PacICE1evidence has "a sufficient foundation of reliability".394The genetic evidence as to source was uncontested only to the extent thatthe Psa3 outbreak had a single point of origin, which was China. But given the sizeof China, that fact could not, in itself, assist in determining whether Orchard 1 was thesource of the Psa3 that entered New Zealand. The location from which the M7 samplewas taken is of no significance without the PacICE1 evidence. The presence ofPacICE1 in the New Zealand and Chinese samples was not a fact to which anysignificance could be attached without the assistance of expert evidence.However, there was insufficient evidence that Dr Poulter's theory wouldsatisfy the Daubert criteria. His opinions had been published in a peer-reviewedarticle but that article provided only limited support for the theory, focusing more onthe orthodox method of sequencing core genomes. The Crown's experts alsodisagreed with the conclusions regarding ICEs in that paper.Further, the potential rate of error is unknown395 and the evidence beforethe Court strongly suggests that reliance on ICEs in phylogenetic analysis is notwidely accepted in the scientific community. While disagreement among experts as394 At [80].395 Dr Poulter accepted in cross-examination that it cannot be known how many PacICE1 there werein China between 2006 to 2010 because of the lack of samples. Although this statement was madein the context of a challenge to Dr Poulter's claim that the presence of PacICE1 on both strainswas "exquisitely rare", it can be inferred that an unknown prevalence of PacICE1 would lead toan unknown rate of error in respect of his hypothesis.to reliability will not in itself be a reason to withhold evidence from the factfinder,396the failure of the respondents to establish that the PacICE1 evidence goes beyond"mere theory" means that it does not reach the s 25(1) threshold.Even if the evidence was adduced simply to prove that a particular ICE is foundon both strains, our conclusion as to admissibility remains the same — the presenceof an ICE without expert opinion as to its relevance to the broader issue of causationlacks probative value and would likely have an unfairly prejudicial effect.We therefore accept the Crown's submission that Dr Poulter's methodology was notsufficiently reliable to provide substantial assistance. We would have foundthe PacICE1 evidence inadmissible.Reliance on MLVA evidenceThe Judge also took into account evidence about an analysis based on a methodknown as MLVA.397 This method was developed as a fast, reliable method ofanalysing genetic diversity in genetically homogeneous species for use in outbreaksituations. It is not as well suited to longer-term work directed at establishing thegenetic lineage of an outbreak. Expert evidence from Dr Mazzaglia of analysis basedon this method was advanced in support of Dr Poulter's WGS analysis, as across-check. It was not suggested that the evidence established the geographic originof the first New Zealand strains. Rather, it indicated that the 2010 strains from Shaanxiwere genetically closer to the New Zealand strain than strains from either Chile orEurope.The Judge accepted that the MLVA method had limitations compared to WGSand also that, as asserted by the Crown, the analysis suffered from geographical andtemporal biases as a result of over-representation of Chinese and New Zealandsamples and samples taken after 2010.398 The Judge therefore accepted that396 Lundy v R, above n 393, at [239].397 Multilocus VNTR (variable number of tandem repeats) was explained in the High Court judgment,above n 2, at [1150]–[1151] as a method that analyses regions in the DNA (microsatellites) wherea small number of base pairs are repeated multiple times in tandem (tandem repeats).During replication the double strand temporarily dissociates and can then mis-pair throughexpansion or contraction, resulting in insertion or deletions and a degenerated/imperfect tandemrepeat. Strains can be distinguished based on the number of repeats present at a particular site.398 At [1228] and [1230].the analysis did not, in itself, establish the origin of the New Zealand Psa3 strain butshe regarded it as another strand of evidence that could be taken into account.399We consider that, whilst MLVA is not as reliable as WGS, it was nevertheless arecognised scientific method sufficient to satisfy the heightened threshold under s 25.The Judge was therefore entitled to put some weight on it.Conclusion on the genetic evidenceWe would have found that the Judge was entitled to rely on the WGS andMLVA evidence, but not on the PacICE1 evidence. That error does not, however,necessarily mean that the Judge's overall conclusion as to causation was wrong —that depends on the totality of the remaining evidence. We now turn to consider thespecific findings regarding causation.Orchard 1 as the source of the June 2009 consignmentThe Judge found that it was quite "possible and plausible" that the June 2009consignment had come from Orchard 1 in Shaanxi.400 As noted above, this findingwas relevant to the findings regarding the genetic origin of the Psa3 strain found inNew Zealand in 2010. The Crown's argument, based on a "links in the chainapproach", that the evidence could not be taken into account fails as a result of ourconclusion as to the correct approach to be taken to a circumstantial case. However weproceed on the basis of the Crown still not accepting that the pieces of evidencethe Judge relied on were sufficiently reliable to be taken into account or did not supportthe conclusion drawn.Ms Hamlyn gave evidence that the anthers came from an orchard outsideXi'an, the capital of Shaanxi. The phytosanitary certificate referred to Shaanxi beingthe place of origin of the June 2009 consignment and Xi'an being the place of issue ofthe certificate. However, Ms Hamlyn had no personal knowledge of the orchard thatsupplied the anthers. The anthers were supplied pursuant to an arrangement betweenKiwi Pollen, Bexley Inc (a United States corporation controlled by Mr Sarui who was399 At [1230].400 At [1253(h)].based in Japan) and Mr Sarui's contact in China, Dr Qu.401 Ms Hamlyn dealt withMr Sarui. Neither Mr Sarui nor Dr Qu gave evidence.In 2009 Ms Hamlyn did not know where the anthers had come from.In 2012 she visited China. She explained:I visited Shaanxi and Sichuan provinces in the second part of 2012. By thattime there was a question mark over whether Psa had come to New Zealandfrom China. I had never been to China before and, given the speculation aboutChina's involvement in the New Zealand outbreak, I wanted to see ourcollaborative pollen production business.Kazu, Dr Qu and I were all together in Shaanxi and Sichuan. Dr Qu took usto see the three mills in different locations. One was in Sichuan and the othertwo were in Shaanxi. My best recollection is the anthers of the 2009 shipmentcame from one or two of these locations in Shaanxi. Dr Qu also took us aroundsome orchards. One of the orchards in Shaanxi may have been the origin ofsome or all of the anthers.In cross-examination she could not recall who had told her about wherethe anthers came from:A. I don't recall the conversation exactly but my understanding was thatit came from the, what we called the number 1 location which was theclosest one to Xi'an.Ms Hamlyn was cross-examined on the location by reference to a map. It wasevident that she had difficulty identifying the precise location but was able to say that"the nearest town to the orchard that I'm aware of is called Zhouzhi".The Judge found:[1036] As a result of the trip she learned the shipment of anthers had comefrom Orchard 1. [1037] Given the reason for Ms Hamlyn's trip to China it would be surprisingif she had not wanted to know where the anthers had come from. At aroundthis time she also put some pins on a [G]oogle map to show the locations ofthe three orchards they had been to, having discussed this with Mr Sarui. Shedid this because she wanted to know where she had been (all the signs werein Chinese and she had travelled a long way from Shanghai). This reinforcesthe likelihood that Ms Hamlyn was able to accurately recall that the antherscertainly came from Orchard 1, whether or not some also came fromOrchard 2. I accept her evidence that some, probably all, of the anthers camefrom Orchard 1.401 The intention was to enter into a formal agreement but the Psa incursion intervened.The challenge to the finding is based on the vagueness of the evidence ratherthan its admissibility; there is no reference to any objection to Ms Hamlyn's evidenceof being told which orchard supplied the anthers (presumably because of the cost ofbringing Dr Qu or Mr Sarui to New Zealand). The Crown says that Ms Hamlyn'sevidence was too uncertain a basis for finding the source of the June 2009consignment. However, we consider that the (hearsay) evidence as to the fact that allor part of the June 2009 consignment came from Orchard 1 coupled with Ms Hamlyn'sevidence provided a sufficient basis for the Judge's finding as to where Orchard 1 waslocated.That said, our conclusion in relation to the inadmissible PacICE1 evidencemeans that this piece of evidence has little significance. It was relied on bythe respondents to link the source of the June 2009 consignment with the M7 samplethereby bolstering the claim that the June 2009 consignment was infected with thePsa3 strain. But since the connection between the M7 sample and the New Zealandstrain of Psa depends on the PacICE1 evidence, whether the June 2009 consignmentcame from Orchard 1 or not had could not assist in determining whether the June 2009consignment was infected.The epicentre of the Psa3 outbreakThe two orchards that the Judge found to have been at the epicentre ofthe incursion were Olympos, situated across the road from one another on Mark Rd.These were the first two orchards in Te Puke to report symptoms of Psa3 and wereidentified by MAF as RP1 and RP2 respectively.402 Kairanga was owned and managedby Mr Crawshaw and Ms Hamlyn. Kairanga was planted entirely with the Hort16Aorganic variety and had used artificial pollination in 2009 and 2010.The epidemiology of Psa3 was an important factor in the Judge's finding.403Briefly, Psa3 reproduces clonally and can expand from one cell to millions in a matterof hours. It infects kiwifruit plants by entering through openings in the plant tissue.Psa3 can survive on the surface of a plant and multiply without harming the plant or402 RP stands for "Restricted Place".403 High Court judgment, above n 2, at [997]–[998].showing any symptoms other than leaf spotting and the pathogen can also infecta plant but remain latent or dormant without producing any visible signs of infection.Symptoms will develop once a critical population is reached and conduciveenvironmental conditions exist. Psa3 can spread within and across orchards throughboth human and natural pathways. It can be carried by wind, rain, insects, birds andbees. It can also be transferred by artificial pollination or be carried on contaminatedtools, equipment, vehicles and footwear.The Judge's finding of Olympos and Kairanga orchards as the epicentre wasbased on the evidence about the symptoms noticed at those orchards. At Olymposdieback of male vines was noticed in April 2010 and then, following artificialpollination by Kiwi Pollen, leaf spotting was noticed in late October 2010. Followingtesting by MAF, Psa3 was confirmed at Olympos on 5 November 2010.Sick looking vines were noticed at Kairanga in early October 2010 and Psa3confirmed by MAF on 8 November 2010. The Judge accepted that it was not possibleto be sure which of Olympos or Kairanga was infected first.404 The Judge's finding asto the epicentre being at one or other of these two orchards was based on:405(a) MAF's Psa Pathway Report completed in late 2011;(b) a report undertaken in 2017 by the then Ministry of Primary Industries(MPI) from expert epidemiological evidence by Dr Beckett on behalfof the respondents;406 and(c) maps produced by an economist, Mr Colegrave, showing the spread ofPsa3 across Te Puke orchards.By reference to maps prepared showing the location of Psa infections betweenearly 2011 and late 2012, Dr Beckett concluded that the Psa3 outbreak was initiallyconfined to a small part of Te Puke but subsequently spread aggressively among404 At [1018].405 At [1020]–[1026].406 Rob Taylor, Ruth Griffin and Brett Alexander Strain characterisation of Psa isolates collectedfrom kiwifruit orchards during the initial outbreak in the Bay of Plenty (Ministry for PrimaryIndustries, 28 April 2017).neighbouring orchards and then to other areas in Te Puke through spot outbreaks andthen to other regions in the Bay of Plenty. Mr Colegrave's dynamic maps showedthe spread of Psa3 radiating out from the Olympos and Kairanga orchards.The first basis on which the Crown challenges the finding that Olympos orKairanga was likely the epicentre concerns the evidence that Psa3 symptoms wereidentified at an orchard (named Hungerford) some three kilometres from Kairanga andOlympos. Shane Max, a Zespri manager involved in the investigation, commentedthat MPI had tried to find a link between Olympos/Kairanga and Hungerford but wasunable to do so. The Crown also relied on two other orchards with significantsymptoms at an early stage which were some kilometres from Olympos and Kairanga.The Judge acknowledged the evidence about these orchards but did not regard it asinconsistent with the general pattern of the data showing Olympos and Kairanga asthe epicentre.407 Given the ease with which Psa3 could spread, the distance could beexplicable by natural and/or human causes. The Crown argues that the Judge'sapproach was not supported by any evidence as to directionality to establishthe spread.We accept the submissions on behalf of the respondents on this point.The evidence regarding the three other orchards is not persuasive. No evidence wasled from the operators of those orchards. The evidence relating to two of them wasequivocal and it was evident that MAF itself regarded Olympos and Kairanga as theinitial site of infection.The second basis on which the Crown challenges the Judge's finding was thatthe dynamic maps adduced by Mr Colegrave do not in fact show an epicentre andinfection radiating out. The respondents refute this submission, saying that thisargument is contradicted by MAF itself in statements published in its 2017 report that"[t]he bulk of the positive orchards are clustered together and appear to radiate outfrom [Olympos] and [Kairanga]".408407 High Court judgment, above n 2, at [1028].408 Taylor, Griffin and Alexander, above n 406, at 1.In our view there was sufficient evidence from which the Judge was entitled toconclude the epicentre was likely in the location of Olympos and Kairanga.Means of infectionFinally, the Crown challenges the uncertainty as to the means by whichthe Kairanga and Olympos orchards became infected. Although the respondents' caseconcerned a number of orchards, the focus of this aspect of the causation issue was onwhether and how Psa3 reached Kairanga and Olympos orchards and infected the vines.At trial the respondents' case was that there were multiple opportunities forthe June 2009 consignment to infect the orchards and that this fact constituted a strandof circumstantial evidence from which, together with the other evidence, the Judgemight infer causation. The respondents advanced eight possible pathways of infectionbut did not identify any one of them as, more likely than not, the cause of infection:409(a) pollen was applied to Olympos in or after spring 2009 as part ofKiwi Pollen's experiments;(b) pollen was bulked up with other pollen and applied to Olympos inspring 2010;(c) pollen contaminated other pollen that was used to pollinate Olymposin spring 2010;(d) pollen was used on Kairanga as part of Kiwi Pollen's experiments;(e) pollen was bulked up with other pollen and applied to Kairanga inspring 2009 or spring 2010;(f) pollen contaminated other pollen that was applied to Kairanga in orafter spring 2009 or spring 2010;409 High Court judgment, above n 2, at [1083].(g) the anther debris contaminated equipment that was used on Olymposor Kairanga; and/or(h) pollen or anther debris otherwise contaminated Olympos or Kairanga.The Judge approached this issue by asking herself whether the respondents hadestablished that there was a myriad of ways for the pollen, if the pollen or anther wastecontained Psa3, to have reached those orchards and infected the vines.410She concluded:411There is a myriad of possible ways for Psa3 to have infected [Olympos] or[Kairanga] in spring 2009 and 2010. Some of those ways seem more plausiblethan others. But none can be entirely discounted. Psa3 is a robust bacteriathat survives in plant material and can be spread in multiple ways. I do notaccept the defendant's submission that the law requires one of the identifiedpossible pathways to be proven to the balance of probabilities. I do acceptthe plaintiffs' submission that it is not necessary to find any one of these waysas the likely pathway for infection. The fact that there are multiple possibleways is itself a strand of circumstantial evidence, which can be added to theother strands of the cable supporting the plaintiffs' inference of causation.If Psa3 was in the consignment there are multiple pathways by which it couldhave infected Kairanga and Olympos orchards. It is not possible to say whichof those pathways occurred or to be absolutely certain that any of them didfrom the evidence about what occurred. However the range of possiblepathways are consistent with the symptoms that were discovered at thoseorchards in October and November 2010. These pathways range fromexposure by one or both of those orchards to a small level of Psa3 in spring2009 to exposure to a high level of Psa3 in early October 2010. Some of thesepathways are less likely than others especially if Ms Campbell's andMr Crawshaw's recollections about when they noticed the damaged the vinesin spring 2010 is correct (that is, before artificial pollination on Kairanga) andif all the cannisters used to pollinate Olympos in spring 2010 were testedcomprehensively and reliable. Nevertheless, even if those pathways wereexcluded, there remain multiple pathways by which Olympos and Kairangacould have been infected by Psa3 from the anthers or the pollen obtained fromthose anthers.The Crown says the Judge erred in her approach and that it was incumbent onthe respondents to establish one means of infection that was more likely than not andfor the Judge to make a finding to that effect.410 At [1084].411 At [1114] and [1253(f)].We do not accept that the Judge was required to do that. As already discussed,the Judge was not required to make a finding on each piece of circumstantial evidenceon a "link in the chain" basis but simply to look at the totality of the evidence anddecide whether the respondents had met the burden of proof to the requisite standard.The task confronting the Judge was to determine whether the totality of the evidenceshowed, on the balance of probabilities, that the Crown's negligence led tothe orchards becoming infected with Psa3. This is a finding that may be made onthe basis of inference, from circumstantial evidence, as explained in Seltsam —that although the existence of a causal relationship must be found on the balance ofprobabilities, that finding may be reached by inference from several pieces ofevidence, none of which show more than a possibility.412As to what it means to be possible, Spigelman CJ adopted the formulation ofwords used by Kitto J in Jones v Dunkel as whether the pieces of evidence"positively suggest" the causal link sought to be inferred from that and other strandsof circumstantial evidence.413 A positive suggestion requires an evidential foundation.So a theory that has no evidential foundation to demonstrate its feasibility could notform a strand of circumstantial evidence. This involves an assessment of the evidence,including challenges to the feasibility of the theory.The possible pathways for infection identified by the Judge above centredaround:(a) experimental artificial pollination at Olympos in spring 2009;(b) actual artificial pollination at Olympos in 2009 or 2010;(c) experimental or actual artificial pollination at Kairanga in spring 2009or spring 2010; and/or(d) infection from either unintentional transfer of anther waste or transferby the elements.412 Seltsam Pty Ltd v McGuiness, above n 376, at [98].413 At [97] and [100], citing Jones v Dunkel (1959) 101 CLR 298 at 305.The Judge assessed the evidential foundation for each pathway. This wasthe correct approach. She formed differing views as the level of possibility of each.For example, she considered that "there is a reasonable basis in the evidence to supportthe first possibility".414 Other possibilities she found to be less likely: "possible butnot likely",415 and "possible but not likely [though] not a possibility that can bediscounted altogether".416Essentially the Crown's challenge is that the various pathways suggested bythe respondents as to the means of infection do not reach a sufficient level ofpossibility but rather are all "speculative, theoretical possibilities which areunsupported on the evidence". Three reasons are advanced in support of thissubmission. First, the evidence about the "time to symptom" does not support theinference that Psa3 was spread through artificial pollination. Secondly, thesusceptibility of the Hort16A variety to Psa3 makes it highly unlikely that it wasintroduced through artificial pollination in 2009 but went unnoticed until 2010.And thirdly, to the extent the respondents say that the pathogen was spread bycontaminated equipment, expert evidence indicates that it is highly unlikely thatthe pathogen would have survived the winter.The respondents do not accept these criticisms. They say that the Judge wascorrect to find that all the pathways were possible and that this finding was availableon the evidence. We therefore consider the evidential foundation for the respectivepathways and the criticisms levelled by the Crown.Time to symptom evidenceThe first issue primarily addresses the proposition that infection was causedthrough artificial pollination in October 2010. It relates to the evidence of the expectedlag between exposure to Psa3 and symptoms, which the Crown says does not supportthis possible means of infection.414 High Court judgment, above n 2, at [1094], in reference to the possibility of pollen being appliedto Olympos through pollination experiments after spring 2009.415 At [1098], in reference to the possibility of pollen being bulked up with other pollen and appliedto Olympos in spring 2010.416 At [1101], in relation to other pollen being contaminated by the Psa3 extracted from the anthersand used on Olympos in spring 2010.Dr Vanneste gave evidence that the time between exposure and symptomswould likely be between one week (in optimal glass house conditions) and a fewmonths.417 But Dr Vanneste considered that in orchard conditions in the New Zealandclimate, one would not expect symptoms earlier than a few weeks after pollination.He had, for example, observed orchards in Te Puke progress from asymptomatic inNovember/December 2010 to secondary symptoms by March/April 2011, a period ofthree to five months. The respondents' experts considered that, if kiwifruit plants wereinfected with Psa3 by pollen, it would likely take between several weeks to one yearbefore infected plants showed first symptoms. The Judge preferred the opinion ofthe respondents' experts, finding that between a few weeks to one year delay couldexpected between exposure and symptoms. On that basis she held that the time tosymptoms was consistent with each of the pathways proposed by the respondents as apossible means of infection.418Symptoms that may have been Psa3 (although were discounted as winddamage at the time) were first observed at Kairanga on 3 October 2010. Psa3 wasconfirmed within four to five weeks after that. Artificial pollination was found to haveoccurred there on or about 7 October 2010. On the Crown's argument artificialpollination could not have been the cause of the symptoms, because those symptomsappeared before the artificial pollination was undertaken. The Crown also says thatthe symptoms did not appear to follow the path of the artificial pollination.The Judge did not address the latter point. She did not accept the timingargument because she considered that the evidence about timing (presumably boththe artificial pollination and the appearance of the symptoms) was "not precise".419In our view, even allowing for the imprecision of the evidence, the weight ofthe evidence was that symptoms pre-dated the 2010 artificial pollination. There was,therefore, no evidential basis on which to conclude that infection at Kairanga waspossibly caused by artificial pollination in 2010.417 Specifically, Dr Vanneste described the conditions necessary for the expression of symptomswithin one week as "in the greenhouse, under optimal conditions using [a] very high level ofinoculum".418 High Court judgment, above n 2, at [1134].419 At [1134].In respect of Olympos, symptoms were observed on 21 October 2010.Artificial pollination took place there on 13 and 16 October 2010. The Crown saysthat, with reference to the expert evidence, this period was too short for infection tohave been caused by the artificial pollination. The Judge considered that the time tosymptoms was consistent with each infection theory, including at Olympos,but regarded it as "possible but not likely" that the infection was caused by artificialpollination primarily because the cannisters used had tested negative for Psa3. In ourview the evidence about the time between exposure and symptoms (including as foundby the Judge) did not support a conclusion that infection at Olympos could have beencaused by artificial pollination activities in 2010.The result is that infection pathways at Kairanga and Olympos involvingartificial pollination in 2010 were not possible means of infection that the Judge couldtake into account as a piece of circumstantial evidence. This removes the respondents'possibilities (b) and (c) and, to the extent they relate to 2010, (e) and (f). There is nobasis to find infection could have been caused by artificial pollination in 2010.Susceptibility of Hort16A varietyThe second issue relates to the proposition that infection was caused byartificial pollination in spring 2009 (undertaken either experimentally orcommercially). In addition to the above, the Crown says that the particularsusceptibility of the Hort16A variety to Psa3 means that exposure would have led tosymptoms within a few weeks to a year. This is inconsistent with any theory that relieson artificial pollination occurring in spring 2009 but the symptoms not expressed ornoticed until October the following year.420This aspect requires consideration of the latency period that has been observedin Psa3 and its effect on the Hort16A variety. Psa bacteria has both an epiphytic stage(being the time between exposure and infection) and an endophytic, or latent, period(being the time between infection and the expression of symptoms). At the epiphyticstage, the bacteria can survive on the plant without actually infecting it and infection420 The dates on which artificial pollination was undertaken in 2009 are unknown but it is reasonableto assume that it would have been done at a similar time ie late September or early October duringflowering.might depend on the rate at which the bacteria colonise the plant. Other variables suchas temperature and the environment also have a considerable effect on the spread ofthe disease.421As noted above, the Judge found that it could have been between a few weeksand up to a year from exposure to Psa3 to symptoms.422 This conclusion rested heavilyon a paper which reported on the Hayward variety in Italy.423 However, it isuncontested that there is a considerable range of factors that influence the timebetween vine exposure to Psa and the expression of symptoms. The experts agreedthat the symptoms of Psa3 appeared more quickly and noticeably on Hort16A (whichboth Olympos and Kairanga were planted with) than the Hayward variety followinginfection.Although the Judge referred to the susceptibility of Hort16A to Psa3,she appeared not to take that into account in assessing the probable latency period.In our view, the particular susceptibility of the Hort16A variety meant thatthe Tontou paper should have carried less weight than given by the Judge.Noting the experts' agreed opinion that symptoms would be noticeable soon afterinfection, we agree with the Crown that the weight of the evidence does not support aconclusion that spring 2009 pollination activities provided a possible means ofinfection in this case. This does not however rule out infection through other means(for example, contaminated equipment). But the possibility of infection through othermeans depends on Psa3 being able to survive for several months to a year beforeactually infecting plants.421 Dr Balestra and Dr Beckett considered that if kiwifruit plants were exposed to Psa3 by pollen,it could take anywhere between several weeks and one year before infected plants show firstsymptoms of the disease. Dr Vanneste did not agree with that view (or the paper on which it wasbased). He thought that the latency period was likely to have been between a few weeks and afew months depending on the time of year. He did not think the latency period could have beenas long as a year, though he conceded in cross-examination that the number of variables made itdifficult to be definitive.422 High Court judgment, above n 2, at [1134].423 Rodanthi Tontou, Davide Giovanardi and Emilio Stefani "Pollen as a possible pathway for thedissemination of Pseudomonas syringae pv. actinidiae and bacterial canker of kiwifruit" (2014)53 Phytopathologia Mediterranea [Tontou paper] at 333.Survivability of Psa3The third challenge to the Judge's treatment of this evidence was in relation tothe survivability of Psa3 bacteria prior to infection. Given that the June 2009consignment arrived mid-winter, any transfer of Psa3 by way of contaminatedequipment or vehicles would have required the Psa3 to survive between the processingof the anthers and spring 2009. The Crown says that this would not have happenedbecause of the fragility of the Psa3 bacteria. This submission relied on evidence fromDr Vanneste that, to multiply, Psa3 requires a carbon source, a nitrogen source andwater, none of which could be found on non-living surfaces such as metal or plastic.However, the Judge specifically referred to this evidence and, whilst not rejecting it,also took into account other of Dr Vanneste's evidence that Psa could survive in pollenthrough heat (depending on the concentration) and his opinion that Psa stored inunfrozen pollen would be unlikely to survive for "longer than a couple of months" andPsa bacteria in a consistent frozen state could survive in a dormant state "for a numberof years".424 The Judge also took into account other evidence, from Dr Balestra andDr Mazzaglia, to the effect that Psa "overwinters readily in leaf litter and pruningdebris, representing a potential inoculum source for infection of new springgrowth".425This evidence was relevant alongside the fact that, although there was noreliable evidence about what had happened to the anther waste after being cycloned,it seemed unlikely that organic waste was kept at the Main Rd premises wherethe anthers would have been processed. In past years organic waste for compostinghad been dumped down the bank at the Kairanga orchard. Sometimes waste was sentby truck to a composting facility at Paengaroa. The Judge concluded:426The best that can be said is that Ms Hamlyn might have put the anthers wastein the bin, but it is also possible it ended up somewhere else. It is clear thatKiwi Pollen had disposed of some milling waste by allowing it to return to theground from time to time at least. It was not a large quantity and "bits offlowers" would not look amiss on the site424 High Court judgment, above n 2, at [1073] and [1075].425 At [1079].426 At [1068].In these circumstances the Judge found that it was probable that the Psa3 wouldsurvive in the pollen, frozen or unfrozen, and also probable it would survive inthe anther debris, at least for a few days, if that debris was put somewhere on theground outside the pollen room or otherwise.427 Particularly given the fact thatMr Crawshaw from Kiwi Pollen worked at both the Main Rd premises andexperimented at Kairanga and Olympos, the Judge was entitled to find that Psa3 couldhave survived long enough to be transferred on equipment or with leaf debris on avehicle.Conclusion on infection pathwaysThe time to symptom evidence and characteristics of the Hort16A varietydirectly conflicts with the Judge's findings as to likely time to symptoms, whichrenders any theory involving artificial pollination in spring 2009 or 2010 unsupportedon the evidence. This means that infection pathways (b), (c), (e) and (f) are speculativeand not supported by the evidence. But the respondents' argument was simply thatthere were multiple possible infection pathways from the Kiwi Pollen premises wherethe anthers were milled to either Kairanga or Olympos orchards, where the firstsymptoms were detected.The following pathways, which do have evidential support (although limited),remain:(a) pollen was applied to Olympos after spring 2009 as part ofKiwi Pollen's experiments;(d) pollen was used on Kairanga as part of Kiwi Pollen's experiments;427 At [1081].(g) the anther debris contaminated equipment that was used on Olymposor Kairanga; and/or(h) pollen or anther debris otherwise contaminated Olympos or Kairanga.We consider that each of these possible pathways offered a means of infectionthat reached the threshold described in Seltsam so that the Judge could take them intoaccount, along with all the other pieces of circumstantial evidence in reaching aconclusion on causation.Conclusion on causationWe would have agreed with the Judge's overall finding that the June 2009consignment was, more likely than not, the source of the Psa3 incursion:(a) The Judge correctly approached the issue of causation on the basis thatthe burden lay with the respondents.(b) The Judge's orthodox "strands in a cable" approach to the assessmentof circumstantial evidence was correct.(c) The Judge erred in placing weight on the PacICE1 evidence, but wasnevertheless entitled to find that Olympos and Kairanga orchards werethe epicentre of the incursion, the epicentre of the incursion wasassociated with the importers of pollen, there were viable means bywhich that pollen could have reached the orchards in 2009 and survivedlong enough to infect vines the following year, and the absence of anyother apparent association that could explain the epicentre heightensthe coincidence.(d) Finally, although the infection through commercial artificial pollinationat Kairanga and Olympos is not supported by the evidence andtherefore inadmissible as a strand of epidemiological circumstantialevidence, the remaining infection pathways were possible onthe evidence and open to the Judge to consider.ISSUE 6: RESPONDENTS' CROSS-APPEALS ON DUTY OF CAREIssue 6(a): Did the High Court err in finding that those within the Strathbossclass would have to show they had property rights in the vines and crops, or thattheir interest in the vines and crops was sufficiently direct or closely associatedwith those rights that they should be treated as though they have suffered loss totheir property?The group (the Strathboss class) who were represented by the first respondentcomprised five broad categories:428(a) owners and operators;(b) owners and lessors;(c) operators and lessees;(d) growers who sold their orchards after testing positive for Psa3; and(e) growers who sold their orchards before testing positive for Psa3.Seeka qualified as a member of the Strathboss class in its capacity as a groweroperating a number of kiwifruit orchards under long and short term leases and theowner of two orchards. However it also appeared as second respondent in respect ofits claim in its role as a PHO.As earlier noted the approximately 3,200 registered kiwifruit orchards rangefrom small lifestyle blocks to large commercial operations, some being owneroperated while others are leased.429 Ownership is by individuals or throughcompanies, trusts, partnerships and Māori land trusts.430The Judge left for a later stage of the case the determination of who inthe Strathboss class falls within the group to whom the duty found is owed,explaining:431428 At [221(b)].429 See above at [13].430 High Court judgment, above n 2, at [44]431 At [28].Those within the Strathboss class will have to show they had property rightsin the vines and crops or that their interest in the vines and crops is sufficientlydirect or closely associated with those rights that they should be treated asthough they have suffered loss to their property.In its cross-appeal the first respondent challenged the above finding,contending that MAF personnel owed duties to all the five categories of claimantabove. For three reasons we do not propose to explore this issue.First, we do not have the benefit of the Judge's consideration of the issue.As she explained:[435] I have not attempted to identify who within group 1 in the Strathbossclass (owners and operators) will have "property rights" in the kiwifruit vinesand their crops. Based on the submissions on Seeka's leases this is notstraightforward. More importantly I have not seen all the leases of those inthe Strathboss class. This issue is not directly raised by the questions for thisstage. It is better left for consideration when all the information is availableand a full focus can be put on the issue.That leads to the second reason which is that we did not receive comprehensivesubmissions on this particular issue. Indeed the first respondent's submissions focuson the plight of growers who suffered economic losses when they sold their orchardsat substantially reduced values after the Psa3 outbreak but before their own orchardswere infected. This prompted the Crown to observe that the cross-appeal had beennarrowed.432Thirdly, the fate of the appeal has already been determined by our findings onimmunity and on duty. Those conclusions are likewise determinative of the firstrespondent's cross-appeal. In those circumstances we do not consider it necessary ordesirable to prolong this judgment with an exegesis on relational economic loss.Consequently while, for the reasons noted in our discussion of policy, namelythe particular structure of the kiwifruit industry,433 we recognise the merit inthe argument that a somewhat arbitrary line was drawn among those to whom432 The Crown submits that the issue should be framed as: "Did the High Court err in finding thatMAF personnel did not owe a duty of care to growers who suffered economic losses when theysold their orchards at reduced values after the Psa 3 outbreak but before their orchards wereinfected with Psa?"433 See above at [254]–[256].the alleged duty was owed, for the above reasons we choose not to entertainthe first respondent's cross-appeal.Issue 6(b): Did the High Court err in finding that MAF personnel did not owe aduty of care to Seeka, in its capacity as a PHO, to take reasonable skill and carein their actions or omissions prior to the New Zealand Psa3 incursion to avoideconomic loss to Seeka?Seeka, as second respondent, also cross-appeals against the Judge's ruling thatit was not owed a duty of care. The Judge gave the following reasons for that finding:[498] I have reached a different view in relation to Seeka's claim asa post-harvest operator. It has suffered loss because of its business relationshipswith growers. That is relational economic loss. It is different in kind to propertydamage and more removed from the immediate consequences of the allegednegligence in this case. This means that the connection between Seeka andMAF is less close. Seeka's losses are not of a kind that are sufficiently distinctfrom others who suffered economic losses in some way because orchardproduction was affected by Psa. There are also issues about whether it is moreappropriate that Seeka bear losses arising from adverse events in kiwifruitproduction whatever their cause than the government and ultimately theNew Zealand public. Therefore I have not been persuaded that it is just, fairand reasonable for MAF to owe a duty of care to Seeka as a post-harvestoperator.Primarily for the third reason above we choose not to entertain thiscross-appeal. Furthermore we suspect that there may be advantage in this cross-appealalso being determined with the benefit of the further factual material whichthe High Court considered was required in order to resolve the first respondent'scross-appeal.RESULTThe appeal is allowed.The cross-appeals are dismissed.The respondents must pay the appellant costs for a complex appeal on a band Bbasis together with usual disbursements. We certify for second counsel.Costs in the High Court are to be determined by that Court.Solicitors:Crown Law Office, Wellington for AppellantLee Salmon Long, Auckland for Respondents