Product Liability 2009 - Arnold & Porter LLP

New Zealand
242
Simpson Grierson New Zealand
3.2 Is there a state of the art/development risk defence? Is
there a defence if the fault/defect in the product was not
discoverable given the state of scientific and technical
knowledge at the time of supply? If there is such a
defence, is it for the claimant to prove that the fault/defect
was discoverable or is it for the manufacturer to prove that
it was not?
Where issues concerning the state of scientific and technical
knowledge at the time of supply are relevant, they are ordinarily
considered as part of the elements of the claim which the claimant
must prove, rather than constituting a distinct defence which the
manufacturer is required to prove. In a negligence claim, for
example, issues concerning the nature and extent of a duty of care
depend upon what the defendant knew or ought to have known at
the relevant time.
3.3 Is it a defence for the manufacturer to show that he
complied with regulatory and/or statutory requirements
relating to the development, manufacture, licensing,
marketing and supply of the product?
Again, where compliance with regulatory and/or statutory
requirements is relevant, this will normally be addressed as part of
the claim which the claimant must prove rather than as a separate
and distinct defence which a defendant manufacturer must prove.
An exception is the defence of statutory authority, where the
defendant alleges that the defendant was authorised by statute to
carry out the actions in question.
3.4 Can claimants re-litigate issues of fault, defect or the
capability of a product to cause a certain type of damage,
provided they arise in separate proceedings brought by a
different claimant, or does some form of issue estoppel
prevent this?
Factual findings on these types of issues can be re-litigated in
separate proceedings brought by a different claimant. Factual
findings in one case will not normally bind others who were not
party to the particular proceedings in which the factual findings
were made.
3.5 Can defendants claim that the fault/defect was due to the
actions of a third party and seek a contribution or
indemnity towards any damages payable to the claimant,
either in the same proceedings or in subsequent
proceedings? If it is possible to bring subsequent
proceedings is there a time limit on commencing such
proceedings?
Generally, a defendant can seek a contribution or indemnity from a
third party, either in the same proceedings or in subsequent
proceedings - section 17 Law Reform Act 1936. A claim for
contribution or indemnity from a third party must usually be
brought within six years after “everything has happened which
would have to be proved to enable judgment to be obtained for a
sum of money in respect of the claim” - section 14 Limitation Act
1950. In practical terms, a contribution or indemnity claim must
usually be brought within six years after either the plaintiff gets
judgment against the defendant or the plaintiff and the defendant
agree on a compromise. Claims relating to building work may also
be subject to the long stop time limit in the Building Act preventing
claims being made ten years or more after the date of the act or
omission on which the proceedings are based.
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
Defendants can allege that the claimant’s actions caused or
contributed towards the damage. This can be alleged by a
defendant in denying liability and also in seeking to have any award
of damages reduced because of the contributory negligence of the
claimant.
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
Major product liability claims are normally brought in the High
Court. Judges in the High Court regularly sit with juries in criminal
trials and rarely sit with juries in civil trials.
Some product liability claims can also be heard in the Disputes
Tribunal or the District Court. A Disputes Tribunal can hear various
types of civil claims up to a financial limit of NZ$7,500, which can
be extended to NZ$12,000 by agreement between the parties. The
limits of NZ$7,500 and NZ$12,000 would increase to NZ$15,000
and NZ$20,000 respectively from 1 August 2009 under legislation
currently being considered by the New Zealand Parliament. The
District Court has a wide-ranging jurisdiction to hear general civil
claims for amounts up to NZ$200,000 and to hear various types of
criminal claims. Jury trials are available for some District Court
criminal hearings, but are not available for civil hearings in the
District Court or the Disputes Tribunal.
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
The High Court can sit with technical specialists in some types of
proceedings (e.g. proceedings under the Commerce Act 1986), but
the High Court does not sit with expert assessors in product liability
claims.
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
New Zealand does not have a wide-ranging class action procedure
akin to that used in the United States or Australia. True class
actions brought on behalf of unnamed claimants can be brought
under the Human Rights Act (in relation to discriminatory
practices) and under the Health and Disability Commissioner Act
1994. A type or variation of the class action procedure, but not a
true class action, can be brought in the product liability context
under section 43 of the Fair Trading Act for misleading or deceptive
conduct - see the High Court decision in Commerce Commission v
Carter Holt [2008] 1 NZLR 387 (subsequently overturned on a
different point by the Court of Appeal [2009] NZCA 40).
Representative actions and “relator” proceedings have been more
widely used than class actions. In a representative action one or
more persons with the same interest in the subject matter of a
proceeding can sue or be sued on behalf of or for the benefit of all
persons interested in the proceedings. The representative must have
the consent of the other persons with the same interest or obtain a
direction of the Court ordering that the representative be appointed.
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