P J L Hunt for Appellant in CA549/2009 M D Lloyd for Respondents
Judgment:22 October 2009 at 11.30 am
JUDGMENT OF THE COURT
AThe appeal against the refusal to order further discovery is allowed but, because an appropriate authority has now been provided, the only order we need make is to set aside the order for costs made in the High Court which is accordingly set aside.
BThe appeal against the refusal to provide security is dismissed.
[1] Amanda Pickard and her teenage son Troy (suing through his grandfather as a litigation guardian), are suing Chas Ambrose, a gas fitter, and Rinnai New Zealand Limited, a gas heater supplier, for damages of approximately $1.6m. For ease of reference, we will refer to Miss Pickard and her father, collectively, as “the plaintiffs” and to Mr Ambrose and Rinnai, collectively, as “the defendants”. The claim focuses on the allegedly inappropriate installation in Miss Pickard’s house in 1998 of a gas heater, flue and adaptor which resulted, on the plaintiffs’ case, in Miss Pickard and Troy suffering from carbon monoxide poisoning between 1998 and 2001. The trial is scheduled to commence on 27 October 2009.
[2] In the judgment under appeal which was delivered on 13 August 2009, MacKenzie J declined to order the plaintiffs to provide additional security for costs: CIV 2003-091-143. He also dismissed an application by Mr Ambrose for further discovery.
Factual background
[3] The statement of claim alleges that in 1998 Mr Ambrose installed a gas heater in Miss Pickard’s house. This heater had been imported into, and distributed within, New Zealand by Rinnai, as the agent of the manufacturer of the heater. He connected the heater to a flue that he had earlier installed but which had been designed for a different type of gas heater. The plaintiffs maintain that this was on the advice of, and using an adaptor supplied by, Rinnai. They claim that the system which resulted was dangerous and that, as a result, Miss Pickard and Troy suffered from carbon monoxide poisoning between 1998 and 2001, which in turn has had a number of negative consequences for them.
[4] In 2003, the plaintiffs commenced proceedings in the District Court against the defendants seeking damages. The main components of the damages then sought were general damages of $80,000 in relation to each of Miss Pickard and Troy. An amended statement of claim filed in March 2005 increased the damages claim significantly and the proceedings were transferred to the High Court.
[5] In a judgment delivered on 16 December 2005 Ronald Young J rejected an application…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Ambrose v Pickard
Sign in free to access the full text
Details
AGLC
Ambrose v Pickard [2009] NZCA 502
Case
[2009] NZCA 502
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand heard an appeal brought by Chas Ambrose, a gas fitter, and Rinnai New Zealand Limited, a gas heater supplier, against Amanda Pickard and her son Troy, who are suing the defendants for damages of approximately $1.6 million. The plaintiffs allege that the defendants are liable for carbon monoxide poisoning they suffered as a result of the installation of a gas heater in Miss Pickard's house in 1998. The central issues in the appeal were whether the Court should order further discovery and whether the plaintiffs should provide security for costs. The appeal against the refusal to order further discovery was allowed, but since an appropriate authority has now been provided, the only order that needs to be made is to set aside the order for costs made in the High Court. The appeal against the refusal to provide security was dismissed, and the Court reserved costs.