3.3 New Zealand

Over the years in Scotland, England and Wales, the courts have sought to restrict the scope of when a duty of care is owed; in New Zealand a more expansive view is allowed. Indeed, for personal injuries the principle has been put on a statutory footing. As early as 1972, the Accident Compensation Act came into force which provided a scheme to compensate anyone injured in an accident, whether caused by fault or not.

In relation to economic losses, the New Zealand courts have held that the limitations to the scope of the neighbour principle drawn by the House of Lords in Murphy v Brentwood District Council [1991] 1 AC 398 (HL) do not apply in New Zealand. This view has subsequently been upheld by the Privy Council in a building case which held that the New Zealand courts were entitled to follow their own path in this regard: Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA); appeal dismissed [1996] 1 NZLR 513 (PC).

More recently New Zealand courts have grappled with the notion of whether the neighbour principle can extend to computer users and viruses transmitted carelessly.In the context of electronic commerce, issues of proximity or neighbourhood are especially problematic. Who is one’s ‘neighbour’ in an electronic world?

The real issue in the context of electronic commerce is whether there are any policy considerations that would justify limiting the scope of a duty of care based on the formulation in Anns v London Borough of Merton [1978] AC 728. One of the issues which the courts have addressed in that regard is the seriousness of harm that will be caused and the seriousness of the foreseeable consequences: South Pacific Manufacturing Co Ltd v New Zealand Security Consultants Limited [1992] 2 NZLR 282 (CA) 295.