Abstract:
Strathboss Kiwifruit Ltd v Attorney-General (Kiwifruit) held the Ministry of Agriculture and Forestry (MAF) liable in negligence for the Psa3 incursion. In this paper I consider the role of Kiwifruit in holding MAF to account for the incursion and how this interacts with public law lines of accountability. The experience of Kiwifruit demonstrates that, in recognising that a duty of care is owed by the government in tort, courts should ask themselves two questions. First, whether accountability has already been achieved. And secondly, if accountability has already been achieved, whether imposing multiple lines of accountability will complement each other or risk creating a dysfunctional accumulation of accountability mechanisms. This would give proper regard to the role that tort is able to play in holding the government to account and would serve to recognise the unique nature of the government as a litigant.
