Litigating a ‘Natural Disaster’: The Inadequacies of the Tort of Negligence in Response to the Leaky Building Crisis

Abstract

New Zealand is suffering from a ‘Leaky Building’ crisis which has been likened to a ‘natural disaster’. There are thousands of affected buildings throughout the country carrying staggering costs to both building owners and the country as a whole. The crisis has prompted a boom in litigation as affected owners turn to the courts for recovery, primarily through actions in negligence. However there is a question whether litigation is the best solution for this crisis, or whether something else may be needed to better address the broad ranging costs. This paper will highlight how relying on litigation, and more specifically the tort of negligence, as a means of providing remedies to the victims of this ‘natural disaster’ can be difficult. In particular the paper will critically discuss, how the need to reasonably limit liability in this context results in distinctions which can produce arbitrary outcomes; and further that a strict application of these distinctions does not adequately address arguably the greatest costs of this disaster, the health related losses suffered by leaky building users and occupiers. The paper then looks at alternate solutions including a more flexible approach to negligence recovery based on health and safety grounds and a critical look at the current government proposed alternative to litigation.