Berryman v Solicitor-General HC Wellington CIV 2003 485 1041
[2005] NZHC 1704
•11 May 2005
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2003 485 1041
BETWEEN K H N BERRYMAN
First Plaintiff
AND
M BERRYMAN
Second Plaintiff
AND
THE SOLICITOR-GENERAL
First Defendant
AND
T SCOTT
Second Defendant
Hearing:
26 April 2005
Appearances: H S Hancock and J Burns for the New Zealand Defence Force, in support
R A Moodie and R D Waitai for the Plaintiffs, to oppose Judgment: 11 May 2005
JUDGMENT OF WILD J AS TO COSTS
Introduction
[1] This judgment deals with an application by the New Zealand Defence Force (“the NZDF”) for an order that the plaintiffs (“the Berrymans”) pay its costs of this proceeding. That application was made by memorandum dated and filed on 23 March.
[2] On the established costs principles I will refer to, the NZDF is entitled to its costs. That is because the Berrymans involved the NZDF in this proceeding by seeking “non-party” discovery against it. That application failed. The Berrymans
BERRYMAN V THE SOLICITOR-GENERAL HC WN CIV 2003 485 1041 [11 May 2005]
then discontinued this proceeding, which is now at an end, apart from this costs application and (although essentially unrelated) the matter of contempt of Court by the Berrymans’ counsel, Mr Moodie. Thus, having failed to obtain the discovery they sought from the NZDF, the Berrymans altogether gave up their proceeding. In those circumstances, costs would normally go against the Berrymans to the NZDF.
[3] Why, then, is it necessary to say everything that follows in this judgment? It is necessary because Mr Moodie for the Berrymans submits that the NZDF’s actions in relation to the now very public “Berryman bridge” saga, disentitle the NZDF to its costs against the Berrymans.
[4] I need to consider and rule on this submission. Unfortunately, that cannot be done briefly, because it entails a consideration of a large amount of factual information, and of the extensive background to the “Berryman bridge” saga.
The background
[5] This proceeding was brought by the Berrymans against the Solicitor-General (“the Solicitor”) and the Coroner at Taumarunui (“the Coroner”). The proceeding had the aim of obtaining a fresh inquest into the death of Mr J K Richards. Mr Richards was the beekeeper who died on 22 March 1994 when a suspension bridge he was crossing in his honey-laden utility truck collapsed, plummeting his vehicle about 30 metres into the gully and river below. The bridge which collapsed gave access to Te Rata Station at Retaruke near Taumarunui, the property the plaintiffs were farming at the time.
[6] The Berrymans sought to achieve their aim of a fresh inquest into Mr Richards’ death by asking the Court judicially to review the Solicitor’s two successive decisions not to order a new Coroner’s inquest into Mr Richard’s death. The first of those decisions was on 11 October 2002, the second on 19 February 2003. Those requests were made on a number of grounds, primarily the ground that the Coroner mistakenly concluded that the Berrymans were responsible for Mr Richards’ death through their failure appropriately to inspect and maintain the bridge. Another ground was that the Report of the Army Court of Inquiry (“the Army Report”)
provided substantial new evidence, indicating that the Crown was responsible for the inadequate construction of the bridge and significant structural design deficiencies in it. That Army Report (but without its exhibits) had only become publicly available on 10 June 2002, and had thus not been available to the Coroner when he conducted his inquest. That inquest had begun on 7 February 1997, and ended with the Coroner’s decision given orally in the Coroner’s Court on 20 June 1997 (I will refer to ‘the Coroner’s Court’ although it is strictly an inaccurate term).
[7] When making their first request to the Solicitor in July 2002, the Berrymans drew the contents of the Army Report to the Solicitor’s attention. In their amended statement of claim in this proceeding filed on 22 November 2004, the Berrymans allege that they specifically drew seven issues to the Solicitor’s attention. The first of these was:
a)The Army report indicated that the bridge collapsed due to the failure of a transom. The transom failed because the Army’s choice of Oregon timber had a short life when exposed to the weather or when subject to alternate wetting and drying.
[8] Two further issues the Berrymans drew to the Solicitor’s attention related to the speed of Mr Richards’ vehicle over the bridge when it collapsed:
(f)Contrary to the (Coroner’s) difficulty in accepting the vehicle was travelling at a speed “anything like 15 or 20 kph” (p7), the Army Report accepted that the vehicle was travelling at 19 kph.
(g)Contrary to the (Coroner’s) finding that Mr Richards did not contribute to the cause of his death, on the basis of the Army Report it appears that the weight and speed of his vehicle could well have contributed to the bridge’s failure.
[9] The Berrymans allege that, in declining their second request for a fresh inquest, the Solicitor advised them:
I do not consider that there are any new facts that are material for the purposes of section 38 of the Act.
[10]The relevant part of s38 of the Coroners Act provides:
38 Solicitor-General may require inquest where new facts discovered
…
(2) If satisfied that since an inquest was completed new facts have been discovered that make it desirable to hold another (inquest), the Solicitor- General may order another to be held; and in that case another shall be held.
[11] The purpose of a Coroner’s inquest should not be lost sight of. It is set out in s15 of the Coroners Act. Those parts of the section relevant to the inquest into Mr Richards’ death were, and remain:
15 Purpose of inquests
(1)A coroner holds an inquest for the purpose of—
(a)Establishing, so far as is possible,—
…
The causes of the death; and
(v) The circumstances of the death; and
(b) Making any recommendations or comments on the avoidance of circumstances similar to those in which the death occurred, or on the manner in which any persons should act in such circumstances, that, in the opinion of the coroner, may if drawn to public attention reduce the chances of the occurrence of other deaths in such circumstances.
[12] Section 15(2) permits a Coroner in the course of or as part of the findings of an inquest, to:
… comment on the conduct, in relation to the circumstances of the death concerned, of any person.
[13] If the Coroner is proposing adverse comment, then certain safeguards are provided for in s15(2), namely affording the person concerned a reasonable opportunity to be heard about the proposed comment.
[14] The Army Court of Inquiry was conducted in accordance with the Armed Forces Discipline Rules of Procedure 1983, which essentially ensure that the proceedings of the Court are confidential. The Army Report itself is clearly marked “Staff-In-Confidence”. Although there has been recent adverse comment about this secrecy, there are good reasons for it, as I attempted to point out in paragraphs [67] to [71] of the judgment I gave in this proceeding on 18 February. Despite that
confidentiality, the Army Report has been available to the Berrymans and their legal advisers since 12 September 2002, when Major General Mateparae, the Chief of General Staff, as a superior commander, authorised its release to them.
[15] The Army Court of Inquiry’s terms of reference required it to investigate and report on 26 questions. Those questions, and the Court’s answer to them, included the following, relevant to this costs application (the emphasis is mine):
Question 14
What construction materials/methods were used? Answer
The bridge was constructed from untreated timber. The towers were steel, the transoms and stringers oregon and the deck totara.
… Question 15
Who supplied the construction materials? Answer
The landowner (by which the Court meant the Berrymans) supplied the constructions materials.
Question 16
Were the construction materials/methods adequate for the bridge’s intended purpose/design?
Answer
The basic concept of the structure and the construction materials were adequate for the design of the bridge and its intended use. The proof of this is in the decision to repair the bridge, replace the deck structure in timber apart from the transoms which are now in structural steel, and the reuse of all the other components on the bridge.
The decision to use untreated timber being second hand imported oregon was unwise. Oregon is durable when continuously immersed in water, but has a very short life when exposed to the weather or when subject to alternative wetting and drying. Expert opinion is that oregon timber should not have been used for the main structural members of the deck structure of the bridge when it was obviously intended to be semi-permanent or permanent in nature.
…
Question 19
What caused the bridge to collapse? Answer
On the 22 March 1994 three bays of the timber deck structure collapsed, due to the failure in bending of a timber transom when subjected to a rear axle load of 23kN (about 2350 kg) of a vehicle crossing the bridge.
The transoms span between the hangers or suspenders from the main cables and support the stringers and in turn the decking. Two transoms failed in the collapse of the three bays (about 8m) of timber deck, causing the vehicle to plunge into the Retaruke River about 30m below. There is no evidence to indicate that the deck planks or stringers failed first which could have resulted in the same type of collapse experienced on 22 March. This is supported by photographs of the end of the deck remaining after the collapse, which show two sections of stringers from under the wheel tracks still intact and hanging down from where they are lapped and connected over the transom. Inspection of a transom lying on the true right bank under the new bridge, shows considerable and serious decay of surfaces which had been in contact including the internal faces of the laminated member.
The vehicle crossing the bridge at the time of the collapse was a Nissan 720 single cab 4WD flat tray light truck. The vehicle was being used to transport boxes of full trays of honey. It can be estimated from details provided by the landowner and included in Exhibit B, that the vehicle payload including passenger was about 1500 kg and the gross vehicle mass 3240 kg. Work Consultancy Services suggest (Exhibit M) that with a payload of 1500 kg the rear axle load was 2350 kg (23.0kN). This load is very close to the design axle load of 24.5kN (2500 kg) used in the design calculations.
Works Consultancy Services (Exhibit M) estimated that the speed of the vehicle at the time it plunged through the bridge to be about 19 km per hour. The bridge collapsed due to the failure of a transom under a wheel load of 11.4kN or very nearly the design load, and on almost 50% reduction in the nominal strength of the member in bending. The reduction in strength being a result of the weathering (decay) of the untreated oregon timber.
Question 21
Were any steps taken to reduce NZDF exposure to liability in the event of the faulty construction/design of the bridge?
Answer
An Agreement of Satisfaction was signed by Mr Keith H N Berryman of Te Rata Farm, Retaruke on the 23rd March 1986. In that agreement he accepted full responsibility for the bridge.
[16]The Army Report contained the following conclusions:
Conclusions
25.The Te Rata Station bridge collapsed on the 22 March 1994 due to the failure in bending of a timber transom when subjected to a rear axle load of 23 kN (about 2350 kg) of a vehicle crossing the bridge.
26.The transom has been determined as being capable of supporting the imposed load providing the timber was in good condition. The transom timber was oregon which has a short life when exposed to the weather or when subject to alternate wetting and drying. The oregon member failed as a result of loss of strength caused by weathering over a period of time.
27.The design of the deck structure can not be considered as adequate for the bridge’s intended use. The inadequacies of the design procedure however did not contribute to the failure of the transom nor to the resulting collapse of the section of the bridge deck.
28.The Army members involved in the bridge’s construction recognised the landowners financial constraints and believed the bridge to be a short term solution to provide access to generate income and in good faith constructed the bridge using the materials supplied.
29.The landowners fully accept their responsibility in regard to the bridge and in no way hold Army responsible for its failure.
30.Of concern to the Court is the lack of Army records on the Te Rata bridge project and the lack of procedures to ensure that a design check was carried out.
31.In the Court’s opinion Major Armstrong, Sgt Vincent and the members of the MAP construction troop have no liability.
(Again, the emphasis is mine, save for the underlining of ‘transom’).
[17] The Army Report listed the four witnesses who had given evidence to the Court of Inquiry. The third witness was the plaintiff, Mrs M Berryman of Te Rata Station. The fourth witness was Mr G Butcher. Also in the Army Report was a list of exhibits received by the Court of Inquiry. These included:
a)Exhibit B: Investigation and Report Berryman bridge (Te Rata Station) Works Consultancy Services.
b)Exhibit D: Butcher Report Te Rata Suspension Bridge.
[18] Believing that the Report of Mr Butcher (“the Butcher Report”) may assist them in seeking another inquest through this proceeding, by interlocutory application dated 8 October 2003, the Berrymans sought non-party discovery from the NZDF of,
amongst other documents, the Butcher Report. That application was initially dealt with by the Berrymans’ solicitor and the NZDF’s solicitor agreeing that, by consent, orders could be made in the terms set out in a memorandum signed by the two solicitors and dated 2 February 2004 (“the consent memorandum”). Its terms included:
6.Without either the prior written approval of counsel for the NZDF or Court order, the plaintiffs and their solicitors shall not disclose the contents of the above documents to, or discuss the content of those documents with, any other party not a party to this proceeding.
7.The above documents shall not be admitted as evidence in any proceeding, judicial or otherwise (r158 of the Armed Forces Discipline Rules of Procedure 1983). For the avoidance of doubt, this prohibition applies to these judicial review proceedings.
8.Should there be any breach of these orders then the NZDF shall be at liberty to proceed against the plaintiffs in any manner it thinks fit, including for contempt of court.
I note that the Court did not make orders in terms of the consent memorandum.
[19] Not content with the terms of the consent memorandum, the Berrymans pursued their 8 October 2003 application for discovery of the NZDF documents they wanted discovered, including the Butcher Report. They did that, of course, with the benefit of their legal advisers (but not the Berrymans themselves) having seen the Butcher Report. They were perfectly entitled to press their discovery application in this way.
[20] In my judgment of 18 February, reviewing a decision earlier given by Associate Judge Gendall, I held that the Berrymans were not entitled, in this proceeding, to discovery of the ‘Butcher Report’, because the Crown is not a party to it (the Solicitor-General is not sued in a “Crown” capacity). I also held that discovery was unnecessary (because the Berrymans’ solicitor already had the ‘Butcher Report’, in terms of the consent memorandum), and also that rr 158 and
159 of the Armed Forces Discipline Rules of Procedure applied, with the
consequence that the ‘Butcher Report’ was both inadmissible in evidence and could not be disclosed, without authority from a superior commander of the Army (which was not forthcoming). The plaintiffs, or at least their counsel Mr Moodie, have subsequently publicly expressed dissatisfaction with my judgment, saying that it did not address the arguments Mr Moodie put to me. Mr Moodie’s submission for the Berrymans to me at the 14 February hearing, as I understood it, was that the Army had misled the Coroner’s Court by presenting evidence to that Court claiming that another party was responsible for Mr Richards’ death, while secretly withholding from the Coroner information presented to its own prior Court of Inquiry, that showed that the responsibility for Mr Richards’ death arose from the actions of the Army’s own officers and ranks. Mr Moodie argued that this constituted a misuse of the judicial process both in the High Court and in the Coroners Court. He referred me to the Court of Appeal’s decision in Reid v New Zealand Trotting Conference [1984] 1 NZLR 8, 9.
[21] Further, Mr Moodie submitted that this conduct, at least in the absence of any claim to privilege by the Army, constituted implied consent by the Army, under r159 of the Armed Forces Discipline Rules of Procedure, to disclosure of all the confidential information, including the Butcher Report, which was before the Army Court of Inquiry.
[22] Mr Moodie accepts that these were not points he had made to the Judge whose decision I was reviewing. I could not see their relevance to the issues I needed to decide, and anyway rejected them. It was remiss of me not to say so.
[23] I was also unsure how Mr Moodie was suggesting this Court’s inherent jurisdiction, to prevent an abuse of its processes, might be employed in the circumstances here. And Mr Moodie did not enlighten me. In Reid, the jurisdiction was exercised to strike out the proceeding. Was Mr Moodie suggesting that, because of alleged non-disclosure of relevant evidence by the NZDF to the Coroner’s Court, the High Court should order the NZDF to discover a document in a proceeding in the High Court when there was no right to have discovery at all, and when the document was anyway not discoverable. In other words, was Mr Moodie contending that, in
order to right an alleged breach of the process of the Coroner’s Court, the High Court should altogether depart from its own processes?
[24] If the plaintiffs considered their arguments, relevant to the issues I had to decide, had not been properly considered, and were sound, then their obvious remedy was to appeal to the Court of Appeal. I doubt that the Court of Appeal would have denied them a hearing: Association of Dispensing Opticians of New Zealand Inc. v Opticians Board [2000] 1 NZLR 158 (CA)
[25] Instead of appealing, the plaintiffs, by notice dated 10 March 2005, discontinued this proceeding.
[26] Mr Moodie had obtained the Butcher Report through discovery in this proceeding, and strictly for the purposes of prosecuting the proceeding as counsel for the Berrymans. He held the report on the restrictive terms set out in the consent memorandum (paragraph [18] above). Upon the discontinuance of the proceeding, Mr Moodie ought promptly to have returned the Butcher Report and the other documents discovered by the NZDF, to the NZDF’s solicitors. He did not do so. Instead, with the public encouragement of the Berrymans, Mr Moodie proceeded to conduct their cause via the media. He began talking publicly about the content of the Butcher Report. On 23 March he gave a copy of the Butcher Report to TVNZ. On or about 13 April he posted the report on the Internet. As Mr Moodie faces action for contempt of this Court in respect of those actions, I will say no more about them, save to note that he has publicly admitted what he did, and is unapologetic.
[27] One thing Mr Moodie has achieved for the Berrymans, is to persuade the Attorney-General (the first law officer of the Crown) to request the Solicitor (the second law officer) to consider whether he (the Solicitor) should exercise either of his powers in ss 38 and 40 of the Coroners Act, to himself order, or apply to this Court to order, another inquest into Mr Richards’ death.
The opposing arguments
For the NZDF
[28] For the NZDF, Mr Hancock simply sought the full costs it had incurred in this proceeding, in terms of the High Court Rules. He submitted that the consent memorandum of 2 February 2004 was a reasonable and sensible discovery resolution of the opposing parties’ interests, and was accepted as such by the Berrymans at the time. He contended that, as a result of the Berrymans (by then with Mr Moodie as their counsel) wishing to go beyond the consent memorandum, the NZDF had been put to considerable additional expense, most of which it will never recover.
[29] Mr Hancock sought costs on a 2B basis. He submitted that the status of evidence given before Army Courts of Inquiry is an important issue both for the witnesses to the Court of Inquiry into the collapse of the Berryman Bridge, and because of its significant precedent effect. Appropriate resources and effort had therefore been put into arguing the matter before the Court.
[30] Mr Hancock attached to his memorandum a schedule of the costs sought by the NZDF on a 2B basis. They came to $7,975. There were also disbursements of
$973.40. A total of $8,948.40.
For the Berrymans
[31] Mr Moodie placed before me in support of his submissions a dossier of 14 documents including:
· The Army Report.
· Letter 2 May 1997 from the Coroner advising the Army that he intended to make adverse comment about the Army, in particular Second Lieutenant Armstrong. The essence of the proposed adverse comment was that Lieutenant Armstrong was too junior, inexperienced and unqualified to be in charge of designing the Berryman bridge.
· The Coroner’s decision.
· Lieutenant (by then Major) Armstrong’s statement of evidence to the Coroner.
· The 24 January 1986 diary entry of Mrs Berryman (referred to in paragraph [45] below).
· Outline of final submissions of counsel for the Army to the Coroner dated 12 June 1997.
· The Butcher Report dated September 1994.
[32] Mr Moodie then submitted that the Court was entitled to take into account, in deciding whether to award costs, matters that led up to or caused this proceeding to be brought: Voyce v Lawrie [1952] NZLR 984 (CA).
[33] The debarring conduct on the Army’s part to which Mr Moodie pointed was as follows. First, the Army did not bring its faulty construction of the Berryman bridge to the attention of the Coroner at the Inquest. Secondly, and exacerbating that, having been advised that the Coroner intended making adverse comment about the Army, counsel for the Army deliberately misled the Coroner by submitting:
a)The bridge was designed and constructed in accordance with the appropriate Army building manuals, when the Butcher Report had stated that that was not so.
b)The design and construction was cleared by senior officers, when the Butcher Report had stated that that was not so.
c)That, in a causative sense, there was nothing in the entire construction of the bridge that contributed to the accident, when the Butcher Report specifically identified unflashed transoms laminated from untreated oregon as a contributing cause.
d)That superior officers had carried out a further review of the design and construction of the bridge, when that was not so.
e)That the Butcher Report “put the sole blame for the collapse of the Berryman bridge on wrong timber selection, flawed design and a very basic construction failure with the transoms”. In particular, the Butcher Report had identified the construction of the transoms (the bolting together of two 300 x 75 pieces of untreated oregon without any sealing or flashing) as responsible for the accelerated rate of decay which significantly reduced the effective life of the transoms and therefore the bridge.
[34] Mr Moodie contended it was not enough for the Berrymans to have had the Army Report, and that “without the Butcher Report (their) judicial review application could not (have) succeeded”.
[35] Mr Moodie then submitted that the Army’s “duplicitous and dishonest behaviour at the Coroner’s Inquest and subsequently” should not be rewarded by an award of costs against “the very persons who have been the victims of the Army’s incompetent, duplicitous and dishonest conduct”. He contended that this proceeding flowed as a direct consequence of improper conduct on the part of the NZDF. Rather than costs being awarded against the Berrymans to the NZDF, he suggested that the Army’s “dishonesty and deceit” justified a substantial award of costs to the Berrymans and he applied accordingly.
[36] Mr Moodie, repeating those submissions, ending by submitting that “this perversion of the course of justice was so serious and blatant that this is an appropriate case for referral to the Solicitor-General for further inquiries and such further action as those inquiries indicate is appropriate”.
Costs principles
[37] All matters relating to the costs of and incidental to a proceeding or a step in the proceeding are in the Court’s discretion: r46(1). Mr Moodie submitted that the discretion was unfettered. That is not entirely correct. In Glaister v Amalgamated Dairies Ltd (2004) 16 PRNZ 1074, the Court of Appeal held that the discretion is qualified by the specific costs rules, rr47-48G, and is exercisable only in situations
not contemplated by those specific rules or which are not fairly covered by them. The Court made the point that the costs rules are complementary and are designed to produce an effective whole.
[38]Specific rules relevant to the NZDF’s application for costs are:
a)The costs principles set out in r47, in particular:
i)The party who fails with respect to an interlocutory application should pay costs to the party who succeeds.
ii)An award of costs should reflect the complexity and significance of the application.
b)Rule 303: the Court may order the applicant to pay a non party from whom discovery is sought its expenses (including solicitor and client expenses of and incidental to the application and compliance with any order made).
c)Rule 476C, Costs upon a discontinuance: unless the defendant otherwise agrees or the Court otherwise orders, the plaintiff who discontinues a proceeding must pay the defendant’s costs up to the point of discontinuance. Rule 3 defines a “defendant” as “a person served or intended to be served with any proceeding”.
Arguably, r476C does not apply to the NZDF as a non-party to this proceeding. I refer to it more as an indication of the way in which the r46(1) discretion should be exercised, where defendants and non-parties have incurred legal expense in a proceeding which the plaintiffs then discontinued.
Decision
[39] On those costs principles, I reiterate that I am not in doubt that the NZDF is entitled to its costs against the Berrymans, unless the NZDF’s conduct somehow
debars it. I accept Mr Moodie’s submission that a party’s conduct can, despite that party succeeding, debar it from an award of costs. Voyce v Lawrie is a case in point. There are many other examples.
[40] Mr Moodie’s submission is that the Army’s conduct in effectively not telling “the truth, the whole truth and nothing but the truth” to the Coroner is conduct debarring it from recovering its costs from the Berrymans in this proceeding.
[41] Although Mr Moodie’s written outline of submissions was a vitriolic attack on the Army rather than a logical, measured submission, I think his points are these (and this is very much me re-casting Mr Moodie’s argument for him):
a)Had the Army told the whole truth to the Coroner at his Inquest, the Army would have included in its evidence the essence of the Army Report, which reflected the Butcher Report, if not the Butcher Report itself.
b)Had the Coroner had that evidence he would not have found that the cause of the collapse of the bridge – and therefore of Mr Richards’ death – was lack of maintenance by the Berrymans of the bridge.
c)Instead, the Coroner would have found that the bridge collapsed under the weight of Mr Richards’ utility truck because of:
i)The Army’s faulty construction of the bridge transoms (the Army’s use of unsuitable untreated timber, laminated or bolted together without the joins being flashed or sealed), coupled with:
ii)The speed and weight of Mr Richards’ vehicle.
d)The Coroner would not have found lack of maintenance was a cause of the bridge collapsing i.e. he would have found the Berrymans blameless.
e)As c) and d) would have been acceptable to the Berrymans they would not have needed to bring this proceeding, and would not therefore have needed to seek non-party discovery from the NZDF.
f)The whole of the costs now being sought by the NZDF against the Berrymans would have been avoided.
g)The NZDF should therefore not be awarded its costs because they were avoidable, and effectively are the result of the Army’s untruthfulness to the Coroner.
[42] Assuming this is Mr Moodie’s argument, is it correct? I will deal with each step in turn.
Step (a)
[43] The relevant part of the Army Report is its answers to Questions 16 and 17 set out in paragraph [15] above: the use of laminated, untreated oregon transoms. The relevant part of the Butcher Report is:
(As to Question 16)
The decision to use untreated timber in the original bridge cannot be supported. The Oct/Nov 1985 design was based upon the use of Macrocarpa (Cypresses macrocarpa) which untreated has a reasonable durability when not in ground contact. The alternative suggested was tanalith treated pinus radiata. In the construction of the bridge, I am informed that second hand oregon (Pseudotsuga menziesii or Douglas fir coast region) from a building in Wanganui was utilised for the transoms and stringers. Totara, which is very durable, was used for the decking. The use of these timber species is confirmed by the Armstrong design calculations.
Imported oregon has been widely used in New Zealand in the past as a structural material but in my experience always under cover. It is durable when continuously immersed in water, but has a very short life when exposed to the weather or when subject to alternate wetting and drying.
…
(as to Question 19)
In my opinion, oregon timber should not have been used for the main structural members of the deck structure of the bridge when it was obviously intended to be semi-permanent or permanent in nature.
The Butcher Report is also the virtually verbatim source of the first three, and the last, paragraphs of the Army Report’s answer to Question 19.
[44] A point about the Butcher Report is that it pointed out that the original, or earlier, Army design for the bridge was based on macrocarpa or, alternatively, treated pinus radiata, transoms. In reporting on Question 10 Mr Butcher said:
I understand from Mr Berryman that the final design prepared by Lt Armstrong was subject to review by Mr Berryman and Mr W Emmett a Wanganui Bridge Contractor and some changes were made to the towers, cables, and the connection of the cables to the anchorages. The decision was also made at about this time to use second hand oregon from the Imlay Freezing Works and available from the Wanganui Demolition Co. for the construction of the timber deck structure. This was in place of the more expensive treated pinus radiata allowed for in the earlier designs prepared by SME. Totara was however used for the decking.
(my emphasis)
[45] Although Mr Butcher does not state in that passage who decided to switch from macrocarpa or treated pinus radiata (as specified by the Army) to untreated second hand oregon salvaged when a cold store at the Imlay Freezing Works was demolished, the inference is that it was the Berrymans, as a cost saving measure. A diary note of Mrs Berryman dated 21 January 1997 also does not say who decided on the timber switch, but tends to confirm the reason for it:
K and M left to meet Armstrong and Emmett at 2.0. Cord for fox broken and couldn’t pull it across. Had to take stuff across river so couldn’t take Clive his goat. Met to discuss bridge plans and decided to go for steel towers. Went round with John Armstrong to Wang. Demolition to look at timber. Decided on oregon for transoms and stringers with totara decking. Good prices and 20% discount.
(my emphasis)
[46] In his statement of evidence to the Coroner’s Inquest Major Armstrong stated that he designed the bridge and that “the timber to be used in the construction of the bridge had been purchased second hand”. He said nothing about whose decision it was to switch to second hand oregon, or the Army’s attitude to the switch.
[47] I note that, in his statement of defence to the Berrymans’ amended statement of claim, the Solicitor denies that Lt Armstrong had approved the use of oregon timber prior to the Berrymans purchasing it. This is the Solicitor (as opposed to the NZDF), and his denial is likely to be for lack of knowledge.
[48] On the basis, apparently, of Mrs Berryman’s diary note and Major Armstrong’s evidence, Mr Moodie submitted that “the use of untreated oregon … had been approved by Lt Armstrong before being purchased for the project by the Berrymans”. I do not consider that the diary note and Armstrong evidence support that submission. It seems clear that the Berrymans took Lt Armstrong to inspect the oregon they had located in the Wanganui Demolition Company’s yard. What is not clear is what Lt Armstrong’s response was. For example, did he say to the Berrymans “Yes, this is first rate timber. It is entirely appropriate for your bridge”. Or did he say “This timber is not really suitable for the bridge. If you use it, the bridge will not last very long, and will require early and substantial maintenance and repair. But it is your bridge. If you want to use these materials then we are prepared to use them. But I’m warning you, they won’t last long and the maintenance responsibility will be entirely yours”.
[49] In the carefully selected facts Mr Moodie has aired publicly, I do not think he ever acknowledged that the Army specified macrocarpa or tanalised pine for the transoms, and that the switch to untreated second hand oregon was at the Berryman’s request, in order to save them the cost of the more expensive, suitable materials the Army had specified.
[50] The final submissions to the Coroners Court by counsel for the Army include this:
It is clear that the officer (Lt Armstrong) was junior and necessarily did not have years of practical experience. So far as the Army was concerned this was a construction exercise which was carried out properly. That is, the bridge was built in a proper manner (accepted that the only criticism brought against the entire construction was that the bulldog clips were placed the wrong way round, but likewise accepted that this did not contribute to the accident). Accordingly, in a causative sense, there was nothing in the entire construction of this bridge that contributed to the accident.
[51] In the face of the Army Report, and the Butcher Report upon which it was based, that is clearly not correct. And nor is the following part of Army counsel’s concluding submission:
Conclusion
27.In the light of the foregoing, that is to say:
(a) The fact that the Army or Army personnel did not cause or contribute to this tragic accident; and
(b) The fact that an objective assessment of the evidence fails to justify comment or recommendation in respect of the Army or Army personnel;
(c) The fact some matters relating to the accident cannot now be determined,
It would be contrary to the evidence, unfair and unjustified to make adverse comment in respect of the role of the New Zealand Army or any member thereof.
[52] These submissions are at the heart of Mr Moodie’s tirade against the Army, alleging a litany of lies, corruption of judicial process, duplicitous and dishonest behaviour and serious and blatant perversion of the course of justice. Mr Moodie, in his submissions making all those allegations, did not draw attention to another part of Army counsel’s submissions:
Other matters
25. It is not the intention of Counsel for the Army to purport to usurp the Coroner’s role and to assert answers to the questions that the Coroner is statutorily required to give. However, it is respectfully suggested that there are matters not investigated at the time that may have turned out now to be of assistance to the Coroner:
…
(e)The fact that there appears to have been general acceptance that the transoms had lost strength due to weathering, i.e. were partly rotten. Before this Counsel’s involvement in the inquest he understands a portion of a transom was produced as an exhibit. He also understands, however, that this portion was recovered some 4 months after the accident in the course of the demolition of the remainder of the bridge and that it was not one of the transoms that had failed during the accident. With the benefit of hindsight it may have been helpful if the transom timbers that had failed had been tested for strength soon after the accident – in order to ascertain just what load the timbers could carry.
[53] Without saying anything about the way in which the Army had constructed the transoms which failed, collapsing the bridge, this passage at least expressly draws the Coroner’s attention to the state of the transoms.
[54] To summarise step (a), I agree with Mr Moodie that the Army’s submission to the Coroner that it had built the bridge in a proper manner, and that nothing in the entire construction of the bridge had contributed to the accident, was wrong, and that the Army either knew, or ought to have known, that it was wrong.
Steps (b), (c) and (d)
[55] These steps can be taken together. Their essence is a submission that, if the Coroner had been aware of the Butcher Report (or even the Army Report), he would have blamed the Army, and Mr Richards himself, for the collapse of the bridge, and not at all the Berrymans.
[56] The Coroner certainly did not find the Army at fault in terms of faulty design or construction of the bridge. The Coroner’s decision makes that clear in a number of places, for example:
… the construction of the bridge which the Court accepts was at all times completely adequate …
…
Ultimately the failure of the bridge does not in any way impinge upon the New Zealand Army.
…
The bridge was well built. There was no problem.
…
I emphasise that there is no suggestion here that the standard of construction of the bridge was in any way lacking.
[57] Turning to Mr Richards, the Coroner did not accept the evidence of the Berrymans’ engineer, Mr Marks (who I understand was with Works Consultancy Services in Wanganui) that Mr Richards was probably travelling between 15 and 20
kph when the bridge decking collapsed beneath his utility truck. But the Coroner did conclude that Mr Richards may well have been travelling in excess of the 5 kph speed restriction over the bridge and that his speed “may have contributed to the accident”. However, the Coroner saw, as the crucial point, the engineering evidence that the bridge was nearing the end of its practical life as a load bearing structure and was bound to fail, and sooner not later. The Coroner said “Speed perhaps hastened that process but of course it was a question of when not if”.
[58] The engineering evidence the Coroner was referring to was presumably that of the Berrymans’ engineer, Mr Marks. If I am correct in saying that Mr Marks was an engineer with Works Consultancy, then his firm inspected the collapsed bridge on instructions from the Berrymans within a few days of its collapse. Possibly more than any other engineer, Mr Marks was in a position to assess and give evidence about the cause of the collapse of the bridge.
[59] In “The Dominion Post” of 9 May, and in a TVNZ programme last Sunday evening (8 May), there was reference to Mr Marks’ (Works Consultancy Services’) engineering report. Three things at least need to be made clear about this report. The first is to reiterate that it resulted from an inspection of the bridge very shortly after its collapse on 22 March 1994, whereas Mr Butcher’s report was prepared in September 1994, some six months later. The second point is that Mr Butcher had the benefit of Mr Marks’ report when he (Mr Butcher) prepared his own report. The third point is that the Coroner heard evidence from Mr Marks, although he did not hear evidence from Mr Butcher or have the benefit of the Butcher Report.
[60]Turning to the Berrymans, the Coroner made these findings or observations:
a)The Berrymans’ evidence to the Coroner was to a degree guarded and self serving. For example, Mr Berryman submitted that the obligation to maintain the bridge was upon the Crown rather than upon any particular person (i.e. the Berrymans). The Coroner rejected that. He considered that the bridge had been built by the Army at the Berrymans’ request “mainly as a cost saving measure”. He stated that for all practical purposes the bridge was the Berrymans’.
b)He referred to the document the Berrymans had signed when the Army handed the bridge over to them and found that in terms of that document the Berrymans “accepted responsibility for the bridge for practical purposes. The bridge was their bridge”.
c)He noted the Berrymans’ evidence that, during 1993 (i.e. the year before the bridge collapsed), they had approached a firm in Wanganui regarding the placing of steel beams in the bridge (the Coroner was referring to replacing the timber transoms) but that “unfortunately appears to have been put to one side primarily because of new regulations coming into force at that time”.
d)As to the condition of the bridge at the time of its collapse the Coroner stated:
With the greatest respect to Mr and Mrs Berryman the Court has to conclude that there have been efforts to minimise the condition of the bridge at the time of the incident. The Court has had the benefit of hearing all the evidence and seeing many coloured photographs of the bridge. The Court considers that a degree of deterioration is self evident in those photographs. It is not a cosmetic thing like lichen or lack of paint or things of that nature which would merely be cosmetic. It is things which go much deeper than that like the condition of runner boards for example in photograph 9 exhibit 5, condition of timbers exhibit 5 photograph 16,
timbers in exhibit 7 photograph 6 or exhibits 8, 9 and 10. A portion of the bridge was produced as an exhibit and Mr Berryman very properly pointed out that there was no evidence as to where that particular exhibit had been stored in the three odd years since the tragedy down to the date of the Hearing. The Court takes account of that and does not take any note at all of the condition of that piece of timber in coming to these conclusions. Overall however the impression the Court has here is that here was a bridge in need of repair.
e)The Coroner expressed the belief that the Berrymans had become aware of the need for repair because they and their family and visitors to their farm were constantly using the bridge. The Coroner stated:
A situation where the bridge was deteriorating. There were signs there to be seen and either Mr or Mrs Berryman saw them or ought to have seen them. The issue really is when
was the upgrading required and when was it necessary. Mr and Mrs Berryman had not determined to upgrade at that point of time for whatever reason. They gave evidence of financial restraint. It may have been that financial restraint prevented them from upgrading, there may have been other reasons. They may have simply decided that the bridge was quite safe at that point of time that upgrading although it was going to be necessary was not something that needed to be looked at as a matter of urgency.
f)The Coroner found that the Berrymans had not, but could and should have, taken steps to devise and implement a programme of inspection and regular maintenance. Indeed, he held that that was the lesson to be learned from the collapse of the bridge resulting in Mr Richards’ death.
[61] Those, then, are the significant parts of the Coroner’s decision dealing with possible blame or fault on the part of the Army, Mr Richards himself, and the Berrymans, causing or contributing to the collapse of the bridge and thus to Mr Richards’ death. Having considered them, I accept Mr Moodie’s submission that, had the Coroner had the benefit of the Army Report and/or the Butcher Report, it is likely he would have attributed blame to the Army for initial faulty construction of the bridge, in particular the transoms. There were design errors as well, but they were not causative of the collapse of the bridge. Such attribution of blame would be consistent with the criticism the Coroner did make of the Army, which was restricted to putting a comparatively junior, inexperienced and unqualified (in engineering terms) officer in charge of the Berryman bridge building project.
[62] I think the Coroner’s finding that the late Mr Richards may have contributed to his own death by travelling across the bridge at a speed in excess of the 5 kph restriction would not have altered. This is what the Coroner said about Mr Richards’ likely speed:
Their (the Berrymans’) witness Mr Marks then gave his engineering evidence based on calculations supplied by Mr and Mrs Berryman and concluded from those calculations that Mr Richards was travelling in excess of 5kph. Mr Marks was unable to say exactly how fast he was travelling. He believed it might be a speed of between 15 and 20 kph. That was only a probability however, an estimate. Frankly although I accept that Mr Richards may well have been travelling in excess of 5 kph I find it difficult in the extreme to accept that he was travelling at anything like 15 or 20 kph.
To the Courts mind that would create something in the proportions of a truck race with a loaded utility vehicle heavily loaded with a load of honey proceeding around a hairpin bend and across a narrow difficult to negotiate bridge at what in the circumstances the Court would consider to be a relatively high speed. … What the Court does conclude however is that the speed may well have been in excess of 5kph and may well have been more than was prudent in the circumstances. …
[63] But I am unable to accept Mr Moodie’s submission that the Coroner would have exculpated the Berrymans: held them blameless. Indeed, notwithstanding the benefit of the Butcher Report, I consider the likelihood – nigh certainty – is that the Coroner would still have found that the substantial and overriding cause of the collapse of the bridge was its decayed and dilapidated state, which resulted from the lack of any programme of inspection and regular maintenance. As it was the Berrymans who, undeniably, had been responsible for maintaining the bridge from its handover by the Army, that finding would entail the Coroner placing most of the blame for the collapse squarely on the Berrymans. Mr Berryman had formally accepted the maintenance responsibility in the Agreement of Satisfaction he signed on 23 March 1986 when the Army handed over the bridge to the Berrymans.
[64] Although Mr Butcher in his report to the Army Court of Inquiry was critical of a number of aspects of the design and construction of the bridge, at no stage did he suggest it would have collapsed under Mr Richards’ heavily laden utility truck had the truck crossed the bridge when it was new, or even when it was five years old. The point Mr Butcher makes, as I understand it, is that the gradual rotting of the transoms (particularly through water getting in between the bolted together transom members) ultimately caused an almost 50% reduction in the nominal strength of the transoms, and it was that reduced strength coupled with the weight and speed of Mr Richards’ vehicle over the bridge which caused its collapse. Lawyers and Judges attributing or apportioning liability for accidents speak of the proximate, operative or immediate cause, or the causa causans (to use the Latin phrase). In those terms, it seems to me that the cause of the bridge’s collapse was lack of maintenance. Had the transoms been replaced timeously, the bridge would not have collapsed under Mr Richards’ vehicle. In strictly legal terms, Army counsel could have submitted – as he did – that “in a causative sense, there was nothing in the entire construction of this bridge that contributed to the accident”. But, as I have said, I agree with Mr Moodie
that that submission did not fairly, adequately or accurately convey the whole position to the Coroner.
Steps (e), (f) and (g)
[65] It follows from what I have said above, that I do not accept that the Coroner, armed with the Butcher Report, would have found the Berrymans blameless. Steps (e), (f) and (g) of Mr Moodie’s argument – as I have re-cast it – therefore fall away.
[66] Consequently, I do not accept Mr Moodie’s submission that the Army’s conduct in not being completely candid with the Coroner debars it from recovering its costs from the Berrymans in this proceeding. Whether the evidence contained in the Butcher Report justifies another inquest, is a decision which the Attorney has asked the Solicitor to make. Whether Mr Butcher’s evidence would alter the Coroner’s decision, and if so in what respects, is for the Coroner to decide if there is another inquest. The decision for me is simply one as to costs, complicated by Mr Moodie’s submission which required me to consider the Army’s conduct.
[67] It follows that the NZDF is entitled to its costs of this proceeding against the Berrymans. Mr Moodie did not challenge, as inappropriate, costs on a 2B basis. Nor did he challenge Mr Hancock’s calculation totalling $8,948.40.
Result
[68] I order the Berrymans to pay to the NZDF its costs of this proceeding in the sum of $7,975, together with disbursements of $973.40, a total of $8,948.40.
Final comment
[69] I add some final comments. The now very public “Berryman bridge saga” is a neat demonstration of several characteristics of New Zealand and New Zealanders, some of which are good, some unfortunate.
[70] First, it demonstrates the admirable tendency of New Zealanders to rally behind people they perceive to be the underdogs in a situation. Here, the public have perceived the Berrymans to be the underdogs. This is a good characteristic of New Zealanders, provided those they are supporting are worthy underdogs.
[71] Secondly, it demonstrates the tendency and ability of “underdogs”, and those advocating on their behalf, to manipulate public opinion by carefully selecting facts favourable to their cause, and ignoring or obscuring unfavourable facts. Mr Moodie has done that. For examples, he has:
a)Obscured the position as to the selection of second hand untreated oregon for the transoms and stringers under the bridge decking. Publicly, and in his submissions to me on costs, Mr Moodie has stated that Lt Armstrong approved the oregon before the Berrymans purchased it. Mr Moodie has never publicly acknowledged that the Army specified macrocarpa or tanalised pine for the transoms and stringers, and that the switch to untreated second hand oregon was at the Berrymans’ request, in order to save them the cost of the more expensive, and suitable, materials the Army had specified. As I have said, the Army’s attitude to the Berrymans’ choice of the oregon timber is unclear.
b)Ignored the evidence that the Berrymans were aware of the much decayed state of the bridge before the fatal collapse occurred. I have referred to some of that evidence in this judgment, in particular the Berrymans’ evidence to the Coroner that they had, in 1993, contacted their engineers and a Wanganui bridge builder, respectively to design and to fabricate replacement steel transoms for the bridge.
c)Ignored the report of Works Consultancy Services in Wanganui, the Berrymans’ own engineers. I have made the point that these engineers inspected the bridge within a few days of its collapse. What did they say about the cause of the collapse? Nor, obviously, has Mr Moodie referred to the fact that the Coroner had the benefit of that
report, or at least of evidence from Mr Marks of Works Consultancy Services. Again, so comprehensive has Mr Moodie’s oversight of this report been, that “The Dominion Post” of 9 May described it as a ‘secret’ bridge report. Asked about the report, “The Dominion Post” of 9 May reported Mr Moodie as responding that he did not have it. Well, I am sure that the Berrymans, who are clearly so keen to have all the facts of this matter placed before the public, will willingly provide Mr Moodie with a copy. And I am equally sure that Mr Moodie, who clearly shares the Berrymans’ desire to have all the facts out in the public arena, will then give the views of Works Consultancy appropriate publicity.
d)Studiously ignored what Mr Butcher stated in the affidavit he swore for the NZDF in this proceeding on 26 October last. I note that “The Dominion Post” of 9 May reported Mr Butcher as challenging Mr Moodie publicly to disclose the contents of that affidavit, and reported Mr Moodie as stating that it was “not relevant”. Having reminded myself of its contents, I think what Mr Butcher states in that affidavit is relevant. Very relevant.
e)Ignored the Agreement of Satisfaction Mr Berryman signed on 23 March 1986. So complete was Mr Moodie’s oversight of this document, that “The Dominion Post” recently described its revelation as “a new twist in the Berryman case”. With all respect to the newspaper, this Agreement was not a new twist at all. It was before the Coroner, who in his decision understandably placed considerable weight on it. It was pleaded by the Berrymans themselves in this proceeding. I referred to it in the judgment I gave in this proceeding on 18 February (in paragraph [5]). Mr Moodie will have known about the Agreement of Satisfaction since shortly after he became involved in this proceeding. When asked about the Agreement on National Radio’s ‘Morning Report’ recently, Mr Moodie suggested that the Agreement was of no legal force because the Berrymans were not engineers. He said there was lots of case law about that. That may be
an issue for another day. In the meantime, Mr Moodie never publicly confronted the fact that, by his signature upon the plain, simple English of that document, Mr Berryman acknowledged and accepted:
I am satisfied with the materials used in construction of the bridge.
…
…
I am aware that maintenance of the bridge is my responsibility and that the effective life of the bridge will be limited by maintenance of components.
…
…
Subject to the above: I hold neither the New Zealand Army nor any unit or individual of the New Zealand army responsible in any way for the performance of the suspension bridge on the Te Rata property.
[72] A third, and regrettable, New Zealand characteristic demonstrated by “the Berryman bridge saga” is the tendency of many New Zealanders to bash institutions which are important in our country. Here, the NZDF has been thoroughly bashed. The Coroner has been bashed. Other parts of the New Zealand judicial system, in particular this Court, have also been bashed, as somehow having been party to covering up Army “deceit and duplicity”. As the facts of this matter gradually become publicly known, is it in order to ask whether all this bashing has been justified? And to ask what it has achieved?
[73] Throughout all this, the Berrymans have steadfastly refused to accept any blame whatsoever for what happened. Or, if ever they have, then I am unaware of it. I have said enough in this judgment to indicate that I seriously doubt that the Berrymans are the blameless underdogs in this matter.
Solicitors:
Crown Law Office, Wellington for the New Zealand Defence Force, in support Buddle Findlay, Christchurch for the Plaintiffs, to oppose
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