8. Liability issues

8.1 Summary

It must be clearly emphasised that, unlike other sections of this document, the Government is not at this point proposing any changes in relation to liability in respect of GMOs. This section simply sets out the issues and options to be considered and invites comments on these.

Liability issues were considered by the Royal Commission, which took the view that the current liability regime is adequate and recommended that, for the time being, there was no need to change existing liability rules. It was not persuaded that from a legal liability perspective there is anything so radically different in GM as to require new or special remedies. The Commission recognised, however, that liability issues raise difficult questions and suggested that the Government might wish to refer them to the Law Commission for more intensive study. The Law Commission’s examination of liability issues was set out in its study paper, 'Liability for Loss Resulting from the Development, Supply or Use of Genetically Modified Organisms'.

The Law Commission identified a number of reasons why existing liability rules may not always operate effectively in the context of harm that might be caused by GMOs. It also noted that existing liability rules will not ensure that all harm that could potentially be caused by GMOs will be compensated, and that it is unlikely that any liability regime could guarantee this. Some commentators have suggested that difficulties in applying existing liability rules should be addressed by introducing new liability rules. Others consider that the issues identified by the Law Commission will arise in relation to any liability regime, and that there is little or no benefit in adopting new liability rules. It has also been suggested that regulatory responses – such as providing for conditional releases, where ERMA specifies the precautions that must be taken, and monitors compliance (as discussed in section 4 above) – may be more effective in encouraging users of GMOs to take appropriate precautions to prevent harm.

As recognised by the Law Commission, a preliminary and fundamental question is whether the issues and risks associated with GMOs are so different from those associated with other activities or technologies that GMOs should be treated differently for liability purposes.

This section briefly discusses:

• whether there are liability issues unique to GMOs
• the functions of civil liability rules
• the existing liability rules that might apply where harm is caused by GMOs
• the difficulties that have been identified in applying these rules
• the broad range of options for responding to the liability issues raised by GMOs spanning no change to the status quo, modifications to the existing liability regime and a generic liability regime.

Submissions are sought on whether there are liability issues that are unique to GMOs, the adequacy of existing liability rules, and, if they are not adequate, the range of options for reform.

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