Abstract
This case note examines the New Zealand Supreme Court decision in Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5. It explores the broader relationship between tikanga Māori and common law, highlighting the legal uncertainty surrounding how – and to what extent – tikanga Māori should influence New Zealand common law, particularly in tort law. The analysis addresses two conceptual questions arising from this ambiguity and reaches two main conclusions. First, while tikanga Māori recognises tort-like obligations to care for the environment, this alone does not justify imposing an enforceable common-law duty without addressing the fundamental challenges of liability inherent in climate change litigation. Second, rather than serving as a direct source of legal obligations, tikanga Māori may be more effectively integrated as a set of values that inform and refine the legal principles and tests used to establish tort liability for climate-related harms.
Key words: Tikanga Māori – Common Law – New Zealand – Public Nuisance – Negligence – New Tort
Introduction
Unlike any other common law system, the laws of New Zealand are influenced by the customs and practices of the Māori community, the indigenous peoples of New Zealand.[1] The Māori people regulate their behaviour according to the principles of tikanga Māori, broadly defined as the set of ‘values, standards, principles or norms’ that determines the appropriate conduct.[2] The Supreme Court was unanimous in Ellis v R (Continuance) that tikanga Māori has been and will continue to be recognised in the development of the common law of New Zealand in cases where it is relevant.[3] The Court observed that the relationship between tikanga Māori and the common law will develop contextually and as required on a case-by-case basis.[4]
The landmark decision of the Supreme Court in Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5 (‘Smith v Fonterra’) represents the most recent consideration of the role and significance of tikanga Māori and common law, specifically in the context of harms posed by climate change and tort law. The appellant – Michael John Smith – brought three causes of action in tort and claimed that tikanga Māori should inform the reach and content of his causes of action.[5] The Supreme Court acknowledged that the trial court hearing this proceeding will need to consider the potential effect of tikanga on the ‘special damage’ requirement in public nuisance, the question of whether tikanga-related harms can be a cognisable form of loss and the conceptual impact that tikanga Māori may have on the framing of particular causes of action.[6]
Unfortunately, the more fundamental questions about how, and to what extent, tikanga Māori could influence common law principles of tort have been left for another day. The Court also avoids constructing an analytical framework to govern the proper incorporation of tikanga Māori into the common law, leading to the potential for considerable judicial discretion. Accordingly, this case note considers the potential role and significance of tikanga Māori and the common law of New Zealand, particularly on the role that tikanga may have on the three causes of action pleaded in Smith v Fonterra.
The structure of the case note is as follows. Section I sets out the facts of Smith v Fonterra, and Section II provides a summary of the arguments and decision of each court to the proceedings – High Court, Court of Appeal and Supreme Court – particularly insofar as they relate to the role and significance of tikanga Māori. Section III outlines the general principles that govern the relationship between tikanga Māori and the common law, revealing an absence in the literature on how and to what extent tikanga Māori should feature in the common law, specifically tort law. The analysis then turns to answer two questions that may arise on the back of this conceptual ambiguity, reaching two main conclusions. Firstly, while tikanga Māori does recognise tort-like obligations to care for the environment, that should not itself create any enforceable, common-law obligation without confronting some basic challenges of liability that any type of obligation dealing with climate change harms faces. Secondly, tikanga Māori could be more successful as a source of values that can ease some of the rules and tests used to establish tort liability for harms to the climate.
Section I: Facts of the case
Michael John Smith (‘Smith’) is an elder of Ngāpuhi and Ngāti Kahu, two Māori tribes associated with the Northland regions of New Zealand. Smith also serves as the climate change spokesperson for the Iwi Chairs Forum, a national forum of tribal leaders.[7] Around August 2019, Smith brought a claim in tort against seven New Zealand companies, each said to be part of an industry that either emits greenhouse gases (‘GHGs’) into the atmosphere or supplies products which release GHGs when burned.[8] Smith claimed that the defendant companies, by engaging in activities that materially contribute to the climate crisis, have damaged and will continue to damage his whenua [land] and moana [ocean], including places of customary, cultural, historical, nutritional and spiritual significance to him and his whānau [family].[9] Smith sought a declaration that the defendants have unlawfully caused or contributed to adverse effects on the climate, or breached duties owed to him. Moreover, Smith sought an injunction that required each company to reach net-zero emissions by 2050.[10] The defendants applied to strike out the proceedings, submitting that the claim had no reasonably arguable cause of action.[11]
Section II: Arguments and decision
Smith brought three causes of action in tort, which were (i) public nuisance, (ii) negligence and (iii) a proposed ‘climate system damage’ tort, described as a duty to ‘cease materially contributing to damage to the climate system’.[12] According to Smith, principles of tikanga Māori should ‘inform the reach and content’ of his causes of action, in accordance with the general proposition that tikanga should infuse the common law of New Zealand.[13] Additionally, Smith turned to principles of tikanga to establish a customary interest in the land that has sustained harm, in hopes of satisfying the standing rule of public nuisance. Section II provides a summary of the arguments and decision of each court to the proceedings – High Court, Court of Appeal and Supreme Court – particularly insofar as they relate to the role and significance of tikanga Māori.
High Court
The High Court struck out the claims in public nuisance and negligence but declined to strike out the proposed ‘climate system damage’ tort. Regarding the public nuisance claim, Wylie J identified three main obstacles that made the claim clearly untenable, one of which being the failure to satisfy the ‘special damage’ rule.[14] Broadly speaking, the rule provides that claimants must sustain harm that is ‘particular, direct and substantial’ before they have standing to sue.[15] As evidence of ‘special damage’, Smith pointed to a customary interest according to custom and tikanga in the land known as the Mahinepua C Block that made the harms sustained particular and direct to him.[16] However, Wylie J held that the harms sustained by Smith were no more particular or direct than that sustained by many others, irrespective of any customary interest.[17]
Court of Appeal
The Court of Appeal struck out all three causes of action, mainly on the basis that tort proceedings are not appropriate processes through which to address the intricate challenges of climate change.[18] At [82], the Court of Appeal affirmed the High Court’s decision on the ‘special damage’ rule, based on similar reasons.[19] Interestingly, Smith brought another more general claim on the role of tikanga Māori. At [7], the amended statement of claim introduces the concept of kaitiakitanga – notions of stewardship and protection of the natural environment – as a principle that should infuse the judicial consideration of the issues in relation to all three causes of action.[20] Nevertheless, the Court was satisfied that controlling climate change through regulatory means was already consistent with kaitiakitanga, whereas tort-based liability may not be.[21]
Supreme Court
The Supreme Court overturned the High Court and Court of Appeal decisions and reinstated all three causes of action on the basis that the obstacles to the primary cause of action (public nuisance) were not so overwhelming as to meet the standard for strike out.[22] On the ‘special damage’ rule, the Supreme Court considered Smith to have a tenable claim based on both legal interest and distinct tikanga interests.[23] More generally, the Court observedthat principles of tikanga Māori have been cognisable at common law since 1840, and will continue to influence its development in New Zealand.[24] Unfortunately, the Court provides limited guidance on the nature of the interaction between tikanga Māori and common law torts, especially in relation to the harms caused byclimate change. There are hardly any established principles the courts could follow to determine the potential role of tikanga, which leaves the law in a state of significant ambiguity. Section III discusses the former test and general principles for engaging with tikanga Māori, before considering two particular questions related to the potential role of tikanga that may arise.
Section III: Analysis
The nature of the relationship between tikanga Māori and the common law can be described as ambiguous and under-developed. The analysis begins with the principle that the common law recognises tikanga-based customs as creating enforceable rights and obligations for that local area, provided certain conditions are satisfied.[25] Cooper J in the case of Public Trustee v Loasby put the conditions as follows (in what was known as the ‘incorporation test’):
- the custom exists as a general custom of the Māori people;
- it is not contrary to statute law; and
- it is reasonable, taking the whole of the circumstances into account.[26]
General customs capture all customary practices that are not concerned with interests or rights in property, and customs were considered unreasonable if they were contrary to the principles at the ‘root’ of the colonial legal system.[27] However, the Loasby incorporation test was overturned by the Supreme Court in Ellis v R (Continuance),[28] even though the Court was not prepared to articulate what should replace it.[29] Glazebrook J, with whom Winkelmann CJ and Williams J agreed, considered the incorporation of tikanga Māori in the common law to take place on a case-by-case basis according to the normal common law process of incremental development.[30]
Beyond the now defunct incorporation test, there are some general principles for engaging with tikanga that can be derived from past decisions. Two of the general principles are discussed below. Firstly, common law recognition of tikanga-based values does not concern a contest between competing rules of common law and tikanga Māori.[31] The common law simply does not give effect to tikanga-based values that are contrary to statute or to fundamental principles and policies of the law.[32] Rather, the court has to weigh the tikanga-based values alongside other values that are material to the resolution of a dispute.[33] For example, the Supreme Court in Takamore v Clarke had to weigh the tikanga-based values of the whanau pani [the wider bereaved family] and whakapapa [genealogy] with the wishes of the spouse and children to make a decision on the burial of a deceased person.[34] Despite the importance of the tikanga-based values considered in the Takamore case, none of the nine judges across three different courts supported the burial of Mr Takamore according to the traditions of the Tūhoe iwi, a decision that would have been consistent with tikanga. The Supreme Court favoured the common law duty, which stipulates that only the appointed personal representative can attend to the body’s disposal rather than the tribe.[35] The fact that tikanga was not decisive in Takamore raises the question of how much weight can be attributed to tikanga.[36] Secondly, there is no presumption that English common law values take precedence over tikanga-based values.[37] Where tikanga is ‘material’ to a case, the courts may have an obligation to recognise and uphold the values of tikanga Māori, as confirmed in the case of Sweeney v The Prison Manager.[38] The High Court found that the decision to revoke the claimant’s visitor approval at the prison was unlawful, and that a declaration to that effect was necessary to uphold his mana [authority, influence and prestige].[39]
As the analysis above demonstrates, the incorporation test and the general principles speak more to the question of whether tikanga-based practices and values should be recognised, rather than the question of when and how the courts should approach the recognition of tikanga.[40] Consequently, the Smith v Fonterra case – featuring tikanga-based claims that stretch the boundaries of tort law – will present the trial court with challenging questions on the role and significance of tikanga in relation to common law.
The analysis will now focus on two questions related to the potential role of tikanga Māori that may arise. The first question considers whether the common law can recognise the tikanga-based system of obligations as an enforceable right (‘Question 1’). Although Smith does not plead that the principles of tikanga create a separate cause of action,[41] the surprising degree of similarity between the two systems of obligations means that, if the court completely accepted those pleaded tikanga-based values as enforceable, then it could create an entirely new obligation parallel to the established torts. This case note argues that tikanga-based concepts of responsibility to care for the environment such as kaitiakitanga could not and should not create directly enforceable rights without first confronting the conceptual challenges of tort-like liability for climate change harm. The second, related question considers how and to what extent the principles of tikanga Māori can influence the analytical framework for public nuisance, negligence and new torts (‘Question 2’). The note argues that the concepts and values of tikanga Māori could potentially ease the rules and requirements for public nuisance, negligence and new torts.
Question 1: Can the common law recognise tikanga Māori as an enforceable obligation?
The Supreme Court set out the tikanga-based system of obligations as follows:
The principles pleaded are that tikanga Māori has its own system of obligations and recognition of wrongs arising from those obligations, that such obligations are grounded in whakapapa (genealogical) and whanaungatanga (kinship) relationships; that these relationships include a connection to whenua (land and the environment) through whakapapa, giving rise to corresponding obligations of kaitiakitanga (loosely, to care for or nurture); and that breaching tikanga creates a hara or take (issue or cause) requiring utu (compensatory action) to restore ea (a state of harmony or balance).[42]
Principles oftikanga Māori therefore recognise that harm to the environment creates hara [a transgression or wrong] that requires utu [compensatory action] to restore ea [a state of harmony or balance], such as imposing rāhui [restriction of access to, or use of, an areas or resource].[43] Although Smith does not claim that these principles form a separate cause of action, the practical consequence of embracing tikanga Māori as described above would be to establish a tort-like obligation on those that contribute to climate change. Significantly, the tikanga system of obligations shares similar conceptual and normative foundations with non-consequentialist tort law theory, which may allow for the recognition of such an obligation.
An idea fundamental to modern tort theory – emphasised by corrective justice and civil recourse theorists – is that tort law is ‘relational’.[44] Accordingly, tort law focuses not on individual behaviour alone or the private interactions of society as a whole, but rather on a specific relationship between two individuals.[45] Combined with the idea that tort law responds to morally significant ‘wrongs’ perpetrated by one against another, tort law creates a special connection between the wrongdoer and the victim.[46] The wrongdoer could not be considered liable without reference to the victim in whose favour the liability arises.[47] The wrongdoer bears the burden of repair to the victim alone, and the victim can only receive repair from the wrongdoer. While New Zealand has replaced tort law with a no-fault compensation scheme for injury caused by accidents, the rest of tort law follows the ‘relational’ structure of non-consequentialist theory, as the Court of Appeal expressly affirms in Smith v Fonterra.[48]
What can be said about the ‘relational wrongs’ structure of tikanga Māori? The tikanga system of obligations responds to the concept hara [a transgression or wrong], which forms the basis of liability. An individual who causes harm to the environment wrongs those who have interests in the environment, including kaitiaki [those whose role it is to care for the environment] and mana whenua [those with traditional authority in the particular environment]. Moreover, the concepts of tikanga Māori – whakapapa [genealogy], whanaungatanga [kinship] and kaitiakitanga – are relational values that prescribe standards and behaviours designed to maintain relationships.[49] The principle of kaitiakitanga creates an obligation specifically on the wrongdoer to bear the burden of repair for harms to the environment that they cause, irrespective of whether a compensation authority or deep-pocketed individuals are better positioned to restore ea [harmony or balance]. Crucially, whereas the ‘relational’ structure of tort law concerns the relationship between one person and another, the ‘relational’ structure of tikanga Māori is based on more communitarian values. Whakapapa and whanaungatanga understand the connections between the community and the natural world, and these connections establish the framework and basis for obligations in Māori society.[50] An individual causing harm to the environment does not wrong an individual per se, but rather a connection to the land shared by the entire community that requires the wrongdoer to bear the burden of repair. Although the tikanga norms of responsibility based on communitarian values are foreign to modern tort law, the structure still appears to be ‘relational’, only with an entire community as victim of the wrong.
The question arises as to whether the common law should recognise the tikanga system of obligations as an enforceable, tort-like obligation for climate change harms. The most significant challenge for the common law would be the doctrinal and policy-based obstacles that are associated with liability for climate change harms, regardless of whether that liability is based on tort or tikanga. There are broadly three doctrinal issues with tort-like liability for climate change, and they are (i) determining the class of claimants, (ii) determining the class of defendants and (iii) dealing with multiple sources of emissions.[51] Each of these obstacles have been sufficient reasons to refuse climate change as an actionable wrong.[52] Recognition of the tikanga-based system of obligations would effectively allow ‘the mother of all collective action problems’ to slip past the scrutiny of tort law principles that limits potential liability, such as causation and remoteness.[53] Given the reasons above, the common law of New Zealand would likely encounter significant conceptual and epistemic problems in trying to establish tikanga Māori as an enforceable tort-like obligation.
Question 2: Can tikanga Māori inform the scope and content of tort obligations?
Accordingly, if the tikanga system of obligations could not be recognised directly as an enforceable right, how and to what extent can principles of tikanga Māori influence the analysis of public nuisance, negligence and new torts? This case note argues that tikanga-based values could integrate with the common law to potentially ease some rules and requirements for each tort.
Public nuisance
A public nuisance arises from an ‘injury to the public as a whole caused by way of an interference with some or other public right’.[54] Unlike other torts, private actionability may be limited to claimants who can demonstrate they have suffered some damage particular to them arising from the interference (the aforementioned ‘special damage’ rule).[55] The principles of tikanga Māori not only create customary interests in land, but also establish special responsibility to care for natural resources that can distinguish the harms that Māori claimants suffer from the general public. For example, Smith relied on his status as a Māori leader (an elder of the Ngāpuhi and Ngāti Kahu tribes) and as climate change spokesperson for the Iwi Chairs Forum, with a specific customary interest in land threatened by rising sea levels, to satisfy the special damage rule. Māori claimants specifically could perhaps turn to tikanga Māori as their way of satisfying the basic standing rule for public nuisance.
Negligence
The basic condition for liability in any negligence action is that the defendant must owe the claimant a legal duty to take care.[56] The closest equivalent that tikanga Māori recognises would be the concept of manaakitanga, which speaks to the duty of care people have to each other, the environment, the atua [Māori gods] and to all things.[57] The New Zealand Ministry of Justice writes that:
Manaakitanga means to care for a person’s wellbeing in a holistic sense – that is physically, mentally and psychologically. It is a concept that extends beyond the bounds of the family and involves all people. It is one of the main factors in judging a person’s status as a leader or one possessing mana, and that is by their generosity in taking care of others.[58]
By way of contrast, the law of tort does not typically recognise frequent substantial sacrifice for the benefit of others.[59] Only relatively cost-effective measures, such as displaying a warning sign, may be required of a duty-bearer, even when the consequences for the right-holder are severe.[60] Recognition of tikanga Māori here could perhaps broaden the traditional understanding of responsibility that one has towards another and the environment, based on communal values of kindness and selflessness, particularly for those that possess representative roles within the community (i.e., public servants and ministers).
However, any case that aims to extend the pockets of negligence liability to cover a new circumstance invariably has to satisfy the three-stage Caparo test.[61] A duty of care must be based on (i) foreseeability, (ii) proximity and (iii) what is fair, just and reasonable.[62] On the question of proximity, Smith proposed that tikanga Māori could push against a narrow conception of proximity based on individualism.[63] Should the courts accept that collective, rather than individual, relationships could be sufficiently proximate, the related concept of foreseeability may also be satisfied. The defendant would be able to foresee harms to a person sufficiently proximate to them, but not necessarily to others. Regarding what is fair, just and reasonable, there are potential policy concerns about a duty to benefit another. Perhaps manaakitanga should only apply to those living within communities that embrace a collective rather than individual lifestyle. Overall, tikanga Māori could feature as a source of values that ease the traditional rules of tort law to embrace more collective rather than individual notions of responsibility.
New tort
Over the course of history, there have been many instances where the courts have recognised new and innominate torts, particularly if policy considerations pointed to the need for a new cause of action.[64] The common law can occasionally extend an existing principle to new circumstances, provided that the law develops incrementally rather than in leaps and bounds.[65] The tort that Smith proposed to be cognisable at law – a duty to cease materially contributing to damage to the climate system – seemed to be one like no other, although Smith plans to draw on tikanga Māori as a way to frame the proposed tort. Perhaps the best approach would be to convince the courts that similar tikanga Māori practices and principles are already part of the law in other contexts, which repositions Smith’s claim as an extension, rather than a radical transformation, of the law. For instance, some notions of kaitiakitanga are already part of the Climate Change Response Act 2002, the Marine and Coastal Area [Takutai Moana] Act 2011 and the Māori Land [Te Ture Whenua] Act 1993. The Resource Management Act 1991 expressly provides that decision makers under the Act must have regard to kaitiakitanga.[66] For the reasons above, a reasonable argument can be made that the courts could have regard to collective norms and values when considering the proposed climate change damage tort.
Conclusion
The piece has discussed the case of Smith v Fonterra. Beneath the facts and decisions of the three courts lies an underlying tension between the customs and values of tikanga Māori and the common law, a challenge that New Zealand has grappled with for the past 150 years. The analysis above comes to two conclusions on the current state of the law. Firstly, while tikanga Māori does recognise tort-like obligations to care for the environment, that should not itself create any enforceable, common-law obligation without confronting some basic challenges of liability that any type of obligation dealing with climate change harms faces. Secondly, tikanga Māori could be more successful as a source of values that can ease some of the rules and tests used to establish tort liability for harms to the climate. Future research should focus on the important questions of principle underlying this infusion, which can provide courts with a more coherent understanding of the proper role and significance of tikanga Māori in any given context.
[1] Te Aka Matua o te Ture | New Zealand Law Commission, Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) 1.
[2] ET Durie, ‘Will the Settlers Settle? Cultural Conciliation and Law’ (1996) 8 Otago Law Review 449, 452.
[3] Ellis v R (Continuance) [2022] NZSC 115 [19]. See also [108]-[110] (Glazebrook J), [171]-[174] (Winkelmann CJ), [257]-[259] (Williams J), and [279] (O’Regan and Arnold JJ).
[4] Ellis v R (Continuance) (n 3) [21]; see also [116], [119] and [127] (Glazebrook J), [183] (Winkelmann CJ) and [261] (Williams J).
[5] Smith v Fonterra Co-operative Group Limited [2024] NZSC 5 (‘Smith (NZSC)’) [4]-[5].
[6] ibid [182].
[7] ibid [3].
[8] ibid.
[9] ibid.
[10] ibid [4].
[11] ibid [6].
[12] ibid [4].
[13] ibid [59].
[14] Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419, [2020] 2 NZLR 394 (‘Smith (NZHC)’) [62]-[65].
[15] ibid [61]. See also Benjamin v Storr (1874) LR 9 CP 400, 407 (Brett J); R v Rimmington [2005] UKHL 63, [2006] 1 AC 459 [7], [44].
[16] Smith (NZHC) (n 14) [60].
[17] ibid [62].
[18] Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552, [2022] NZLR 284 (‘Smith (NZCA)’) [16].
[19] ibid [82].
[20] Ibid [7].
[21] ibid [34].
[22] Smith (NZSC) (n 5) [173].
[23] ibid [152].
[24] ibid [187].
[25] Ellis (n 3) [92]. See also the foundational case of The Case of Tanistry (1608) Dav Ir 28, 80 ER 516 (KB), 32.
[26] Public Trustee v Loasby (1908) 27 NZLR 801 (SC), 806.
[27] Takamore v Clarke [2011] NZCA 587, [2011] 1 NZLR 573 [124]-[127] (Glazebrook and Wild JJ).
[28] Ellis (n 3) [112]-[116] (Glazebrook J), [177] (Winkelmann CJ) and [260]-[265] (Williams J).
[29] Public Trustee v Loasby (n 26) 806.
[30] Ellis (n 3) [116], [119] and [127] (Glazebrook J), [183] (Winkelmann CJ) and [261] (Williams J).
[31] Takamore (n 27) [92].
[32] ibid [95].
[33] ibid [94].
[34] ibid [92].
[35] ibid [154].
[36] Te Aka Matua o te Ture | New Zealand Law Commission, He Poutama (NZLC SP24, 2023) 228.
[37] Attorney-General v Ngati Apa [2003] NZCA 117, [2003] 3 NZLR 643 [47], [86]; Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 [18].
[38] Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 [75].
[39] ibid [1].
[40] Sarah Down and David V Williams, ‘Building the foundations of tikanga jurisprudence’ (2022) 29 Canterbury Law Review 27, 37.
[41] Smith (NZSC) (n 5) [5].
[42] ibid [60] (emphasis added).
[43] ibid [61].
[44] Ernest Weinrib, The Idea of Private Law (Harvard University Press 1995) 58-61; John Goldberg and Benjamin Zipursky, ‘Torts as Wrongs’ (2010) 88 Texas Law Review 917, 945.
[45] Nick Sage, ‘Relational Wrongs and Agency in Tort Theory’ (2021) 41 Oxford Journal of Legal Studies 1012.
[46] Ernest Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 349, 350.
[47] ibid 351.
[48] Smith (NZCA) (n 18) [113].
[49] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 [297].
[50] New Zealand Law Commission, He Poutama (n 36) 62.
[51] David Bullock, ‘Public Nuisance and Climate Change: The Common Law’s Solutions to the Plaintiff, Defendant and Causation Problems’ (2022) 85 Modern Law Review 1136.
[52] Douglas Kysar, ‘What Climate Change Can Do About Tort Law’ (2011) 41 Environmental Law 1.
[53] Sarah Krakoff, ‘Fragmentation, Morality and the Law of Global Warming’ (2007) University of Colorado Law Legal Studies Research Paper 10/2007, 28 <https://ssrn.com/abstract=976049> accessed 18 January 2025.
[54] John Murphy, The Law of Nuisance (Oxford University Press 2010) 138; see also R v Rimmington (n 15) [10].
[55] Wilfred Estey, ‘Public Nuisance and Standing to Sue’ (1972) 10 Osgoode Hall Law Journal 563. See also Gilbert Kodilinye, ‘Public nuisance and particular damage in the modern law’ (1986) 6 Legal Studies 182.
[56] Stephen Todd (ed), Todd on Torts (9th edn, Thomas Reuters 2023) [5.1].
[57] New Zealand Law Commission, He Poutama (n 36) 89.
[58] Te Tāhū o te Ture | New Zealand Ministry of Justice, He Hīnātore ki te Ao Māori: A glimpse into the Māori world (2001) 166 (emphasis added).
[59] Sandy Steel, Omissions in Tort Law (Oxford University Press 2024) 38.
[60] ibid 3.
[61] Caparo Industries plc v Dickman & Ors [1990] 2 AC 605, 618.
[62] ibid.
[63] Smith (NZSC) (n 5) [179].
[64] John Fleming, The Law of Torts (9th edn, Law Book Company 1998) 7.
[65] Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736 [27].
[66] Resource Management Act 1991 (New Zealand), s 7(a).
Alec Chen
LLB (LSE) ‘25 and Notes Editor of the LSE Law Review 2024-25