scholarly journals The Continuum: A New Approach to the Place of Tort in a Contractual Matrix

2006 ◽  
Vol 37 (1) ◽  
pp. 131
Author(s):  
William Thomson
Keyword(s):  
New Zealand ◽  
Duty Of Care ◽  
New Approach ◽  
Court Of Appeal ◽  
The Continuum

This paper discusses the approach that is taken in New Zealand to determining whether a tortious duty of care can exist across a contractual matrix.  The two step approach adopted in the recent decision of the Court of Appeal in Rolls-Royce NZ Ltd v Carter Holt Harvey Ltd is fundamentally agreed with.  A continuum is suggested for the balancing exercise in the tortious duty of care inquiry. This rationalises past cases and will hopefully provide guidance for future ones.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

The case of ‘losses in any event’: a question of duty, cause or damages?

Legal Studies ◽  
2010 ◽  
Vol 30 (4) ◽  
pp. 558-585
Author(s):  
Mark Stiggelbout
Keyword(s):  
Economic Loss ◽  
Duty Of Care ◽  
Private Law ◽  
General Argument ◽  
The Real ◽  
Pure Economic Loss ◽  
Court Of Appeal ◽  
Careful Comparison

This paper considers the relevance of a finding that, even absent the defendant's unlawfulness, the private law claimant would have suffered the losses claimed. It provides a principled framework for considering the issues raised by such a finding of ‘losses in any event’, arguing that it should be distinguished both from causation of injury and from the scope of the defendant's duty of care, and that it should be treated as raising a question of damages. It highlights the need, particularly in pure economic loss cases, for a careful comparison of the real and the hypothetical losses so as to determine whether the latter would indeed have been losses in any event. In this regard, the decision of the Court of Appeal in Calvert v William Hill Credit Ltd is subjected to close scrutiny. A more general argument advanced is that tort and contract both do and should adopt similar approaches in this field.

scholarly journals The Illusory Trust Doctrine: Formal or Substantive?

2020 ◽  
Vol 51 (2) ◽  
pp. 193
Author(s):  
Mark Bennett
Keyword(s):  
New Zealand ◽  
Privy Council ◽  
Cook Islands ◽  
Trust Law ◽  
Court Of Appeal

"A document is put before us. Does it or does it not create a trust?" This article considers the illusory trust doctrine (ITD) and claims that although the ITD has been criticised as doctrinally unfounded and therefore based in substantive, non-legal reasons rather than pre-existing law, there are formal reasons of trusts law to support it. It begins by considering Atiyah and Summers' concepts of form and substance, and then examines how they apply in the context of equity (in general), and then trusts law (in particular). It then briefly considers a number of recent decisions on the ITD: the four cases constituting the Clayton v Clayton litigation in New Zealand, Pugachev and the Cook Islands Court of Appeal and Privy Council decisions in Webb v Webb. Finally, it analyses these ITD decisions using the form and substance distinction, concluding that it is arguable that the ITD is grounded in principles of established trust law, as opposed to purely substantive reasoning.

scholarly journals The Formation of Variation Contracts in New Zealand: Consideration and Estoppel

2016 ◽  
Vol 47 (2) ◽  
pp. 327
Author(s):  
Marcus Roberts
Keyword(s):  
New Zealand ◽  
Current Position ◽  
Court Of Appeal

This article will review the current New Zealand approach to the formation of variation contracts. In particular, it will critique the current position taken by the Court of Appeal that either: a practi-cal benefit can be good consideration;, or consideration is not needed for variation agreements. The article will then explore some of the implications of using estoppel as an alternative basis to enforce variation agreements when consideration has not been provided by the promisee.

scholarly journals Harvey v Beveridge: Common Intention Constructive Trusts in New Zealand?

2015 ◽  
Vol 46 (3) ◽  
pp. 959
Author(s):  
Mark Bennett
Keyword(s):  
New Zealand ◽  
High Court ◽  
Adequate Understanding ◽  
Court Of Appeal

This article discusses the reasoning of the High Court and Court of Appeal in Harvey v Beveridge in respect of the existence of "common intention constructive trusts" in New Zealand law. It analyses the development of constructive trusts doctrine in New Zealand, and argues that a different approach was taken to the application of this doctrine in relationship property disputes compared with the equivalent English doctrine. This difference was not recognised in Harvey v Beveridge, and it is argued that an adequate understanding of this difference requires us to grapple with the underlying foundations of the New Zealand law, which were left open during the Court of Appeal's development of the doctrine.

Highly localized upper mantle deformation during plate boundary initiation near the Alpine fault, New Zealand

Geology ◽  
2021 ◽  
Author(s):  
Steven Kidder ◽  
David J. Prior ◽  
James M. Scott ◽  
Hamid Soleymani ◽  
Yilun Shao
Keyword(s):  
New Zealand ◽  
Upper Mantle ◽  
Plate Boundary ◽  
New Approach ◽  
Fine Grained ◽  
Alpine Fault ◽  
Narrow Width ◽  
Plate Boundary Deformation ◽  
Boundary Deformation ◽  
Total Shear

Peridotite xenoliths entrained in magmas near the Alpine fault (New Zealand) provide the first direct evidence of deformation associated with the propagation of the Australian-Pacific plate boundary through the region at ca. 25–20 Ma. Two of 11 sampled xenolith localities contain fine-grained (40–150 mm) rocks, indicating that deformation in the upper mantle was focused in highly sheared zones. To constrain the nature and conditions of deformation, we combine a flow law with a model linking recrystallized fraction to strain. Temperatures calculated from this new approach (625–970 °C) indicate that the observed deformation occurred at depths of 25–50 km. Calculated shear strains were between 1 and 100, which, given known plate offset rates (10–20 mm/yr) and an estimated interval during which deformation likely occurred (<1.8 m.y.), translate to a total shear zone width in the range 0.2–32 km. This narrow width and the position of mylonite-bearing localities amid mylonite-free sites suggest that early plate boundary deformation was distributed across at least ~60 km but localized in multiple fault strands. Such upper mantle deformation is best described by relatively rigid, plate-like domains separated by rapidly formed, narrow mylonite zones.

Instantaneous spatio-temporal rate of spread of fast spreading wildfires - a new approach from visible and thermal image processing

2021 ◽  
Author(s):  
Benjamin Schumacher ◽  
Katharine Melnik ◽  
Marwan Katurji ◽  
Veronica Clifford ◽  
Jiawei Zhang ◽  
...  
Keyword(s):  
Remote Sensing ◽  
New Zealand ◽  
Stand Structure ◽  
Fire Severity ◽  
Thermal Infrared ◽  
Fire Spread ◽  
New Approach ◽  
Rate Of Spread ◽  
Fast Spreading ◽  
Fire Experiments

<p>The rate of spread (ROS) of wildfires is an important parameter for understanding fire-atmospheric interactions and developing fire-spread models, but it is also vital for firefighting operations to ensure the safety of firefighters (Plucinski 2017, Stow 2019). Spatial ROS observations are usually carried out by using visible and thermal satellite imagery of wildfires estimating the ROS on a time scale of hours to days for large fires (>100 ha) or repeated passing with an airborne thermal infrared imager for higher spatial and temporal resolution (Viedma et al. 2015, Stow 2014). For fire experiments in highly controlled conditions like laboratory fires or during light fuel prescribed burns, ROS estimation usually involves lag-correlation of temperature point measurements (Finney 2010, Johnston 2018). However, these methodologies are not applicable to fast-spreading grass or bush fires because of their temporal and spatial limitations. Instantaneous spatial ROS of these fires is needed to understand rapid changes in connection with the three major drivers of the fire: fuel, topography and atmospheric forcings.</p><p>We are presenting a new approach towards a spatial ROS product which includes newly developed image tracking methods based on thermal and visible imagery collected from unmanned aerial vehicles to estimate instantaneous, spatial ROS of fast spreading grass or bush fires. These techniques were developed using imagery from prescribed wheat-stubble burns carried out in Darfield, New Zealand in March 2018 (Finney 2018). Results show that both the visible and thermal tracking techniques produce similar mean ROS; however they differ in limitations and advantages. The visible-spectrum tracking method clearly identifies the flaming zone and provides accurate ROS measurements especially at the fire front. The thermal tracking technique is superior when resolving dynamics and ROS within the flaming zone because it resolves smaller scale structures within the imagery.</p><p> </p><p>References:</p><p>Finney, M. et al. 2010: An Examination of Fire Spread Thresholds in Discontinuous Fuel Beds.” International Journal of Wildland Fire, 163–170.</p><p>Finney, M. et al. 2018: New Zealand prescribed fire experiments to test convective heat transfer in wildland fires. In Advances in Forest Fire Research, Imprensa da Universidade de Coimbra: Coimbra, 2018.</p><p>Johnston, J. M., et al. 2018:  Flame-Front Rate of Spread Estimates for Moderate Scale Experimental Fires are Strongly Influenced by Measurement Approach. Fire 1: 16–17</p><p>Plucinski M., et al. 2017: Improving the reliability and utility of operational bushfire behaviour predictions in Australian vegetation. Environmental Modelling & Software 91, 1-12.</p><p>Stow, D., et al. 2014: Measuring Fire Spread Rates from Repeat PassAirborne Thermal Infrared Imagery. Remote Sensing Letters 5: 803–881.</p><p>Stow, D., et al. 2019: Assessing uncertainty and demonstrating potentialfor estimating fire rate of spread at landscape scales based on time sequential airbornethermal infrared imaging, International Journal of Remote Sensing, 40:13, 4876-4897</p><p>Viedma, O., et al. 2015:  Fire Severity in a Large Fire in a Pinus Pinaster Forest Is Highly Predictable from Burning Conditions, Stand Structure, and Topography. Ecosystems18: 237–250.</p>

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