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

Abstract

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.