Gardner Examines the Relationship Between Tort Law and Power in TLRG Lecture
March 24, 2026
(l-r) Erika Chamberlain, Jodi Gardner, Stephen Pitel, and Jason Neyers
On Monday, March 16, 2026, the Tort Law Research Group (TLRG) at Western Law welcomed Professor Jodi Gardner, the Brian Coote Chair in Private Law at the University of Auckland, to deliver a public lecture titled “Tort Law and Power.” Speaking to a packed room, Gardner offered a wide-ranging account of how power shapes both the development and operation of tort law. The lecture, sponsored by MD Lawyers, drew on Gardner’s personal experiences, doctrinal analysis, and comparative case studies from multiple jurisdictions.
Gardner began by situating her scholarly interests in her early legal work representing victims of the 2010–11 Queensland floods. These experiences, she explained, revealed how formally neutral legal rules can produce profoundly unequal outcomes, particularly for vulnerable individuals facing well-resourced institutional defendants. A central strand of her lecture engaged with the idea that the “protection of the vulnerable” represents the “golden thread” running through tort law. Yet she suggested this aspiration is frequently subordinated to concerns such as doctrinal coherence and alignment with legislative frameworks.
These themes were illustrated through a series of case studies. Gardner contrasted the limited accountability and remedial avenues available to victims of the Grenfell Tower disaster with the success of wealthy property owners in Fearn v Tate Gallery, arguing that disparities in resources and social power can shape both litigation outcomes and doctrinal development. She then turned to climate change litigation, focusing on Pabai v Commonwealth of Australia, where claims brought by Torres Strait Islanders failed in part because Indigenous conceptions of harm and obligation were filtered through orthodox common law frameworks. By contrast, she highlighted the New Zealand Supreme Court’s openness in Smith v Fonterra to engaging with tikanga Māori (the customary system of values, practices, and protocols that guide Māori society) as a potentially transformative development. Closer to home, Gardner discussed Ahluwalia v Ahluwalia, emphasizing how the case illustrates tort law’s capacity to respond to lived experiences of vulnerability.
The lecture concluded by turning to contemporary challenges, including liability for harms caused by artificial intelligence, barriers to redress for victims of modern slavery in global supply chains, and the trade-offs embedded in New Zealand’s accident compensation scheme. Across these diverse contexts, Gardner underscored a common concern: that significant gaps in accountability and access to justice often track underlying imbalances of economic, institutional, and political power. Gardner encouraged students and scholars to remain attentive to the ways in which power operates within private law. Whether as advocates, policymakers, or judges, she suggested, members of the legal profession play a critical role in shaping whether tort law fulfills its promise of protecting the vulnerable.
