Berryman v Solicitor-General HC Wellington CIV 2005-485-1795

[2008] NZHC 2297

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2005-485-1795

UNDER  the Judicature Amendment Act 1972 and/or

Part VII of the High Court Rules

IN THE MATTER OF     decisions by the Solicitor-General and Deputy Solicitor-General and in the matter of a finding by the Taumarunui Coroner

BETWEEN  KEITH HUGH NICOLAS BERRYMAN First Plaintiff

ANDMARGARET BERRYMAN Second Plaintiff

ANDHER MAJESTY'S SOLICITOR- GENERAL FOR NEW ZEALAND First Defendant

ANDTHE NEW ZEALAND DEFENCE FORCE

Second Defendant

ANDTHE CORONER'S COURT AT TAUMARANUI

Third Defendant

Hearing:         4 September 2007

Appearances: Dr Moodie for Plaintiffs

Ms Gwyn with Ms Baltakmens and Ms Griffin for First Defendant
Mr Hancock with Ms McDonald for Second Defendant

Judgment:      30 April 2008         at 10.30 am

JUDGMENT OF MALLON J

KEITH HUGH NICOLAS BERRYMAN AND ANOR V HER MAJESTY'S SOLICITOR-GENERAL FOR NEW ZEALAND AND ORS HC WN CIV 2005-485-1795  30 April 2008

Contents

Overview ............................................................................................................................... [1] Preliminary matters ............................................................................................................. [16] Events prior to the inquest .................................................................................................. [18] OSH prosecution ............................................................................................................ [18] Works Consultancy Services .......................................................................................... [19] Court of Inquiry ............................................................................................................. [23] The inquest .......................................................................................................................... [34] Coroner’s powers .......................................................................................................... [34] Procedure before the Coroner ....................................................................................... [38] The Coroner’s decision.................................................................................................. [52] Attempts to obtain second inquest ...................................................................................... [61] Power to order new inquest ........................................................................................... [61] Initial attempts ............................................................................................................... [63] The Solicitor-General’s decision ................................................................................... [71] Procedural impropriety in Solicitor-General’s decision ..................................................... [75] Solicitor-General’s decision “illegal”? ............................................................................... [82] Relevant considerations ................................................................................................. [84] Irrelevant considerations ............................................................................................. [113] Irregularity of proceedings .......................................................................................... [134] Denial of right to due process – breach of Magna Carta ............................................ [141] Solicitor-General’s decision “irrational”........................................................................... [144] Mistake of fact.............................................................................................................. [145] Unreasonableness ........................................................................................................ [148] Cause of action against the Army ..................................................................................... [163] Cause of action against the Coroner ................................................................................. [173] Result ................................................................................................................................ [190] Costs.................................................................................................................................. [191]

Overview

[1]      “It is of  critical importance to recognise the true purpose  of an  inquest. Sadly, the public’s perception of such purpose does not always match the reality, and those caught up in the process expect more of the process than it can, or is permitted to, deliver thereby adding to their distress.”1   This captures my assessment of Mr and Mrs Berryman’s longstanding attempts to obtain a new inquest into the death of Mr Richards.

[2]      An inquest inquires into a sudden and unexplained death.  Its purpose is to identify the cause and circumstances of death.2    If there are lessons to be learned, comments or recommendations may be made.3     The purpose is not to determine fault4 although, in identifying the cause and circumstances of the death, and making comments  or  recommendations  so  that  lessons  may  be  learnt,  it  is  sometimes

inevitable that fault is attributed to a party.  This is not fault in the sense that legal consequences will follow – the findings at an inquest are not conclusive and may be traversed in other proceedings.5    However, in attributing fault or blame to a party, that party’s reputation may be affected because the Coroner’s report is a public document.

1 R v HM Coroner for Birmingham and Solihull ex p Benton [1997] 8 Med LR 362 at 365.

2 This goes beyond the immediate medical cause of death (see, eg. Re Hendrie HC CHCH CP 445/87

12 January 1988) and the inquest should seek and record as many of the facts concerning death as the public interest requires Re Captain CJ Kelly [Kelly’s case] (1997) 161 JP 417 at 426.  However, that

does  not  mean  that  the  inquest  should  inquire  into  the  underlying  responsibility  for  every circumstance which may be said to have contributed to the death: R v Coroner for Western Districts

of East Sussex ex parte Homberg, Roberts and Manners (1994) 158 JP 357 at 372.   Although the wording in the United Kingdom legislation is different these points in my view apply with equal force

to the New Zealand legislation.

3 The power to make recommendations and comments is tied to avoiding similar circumstances from occurring or  to  how parties should act  in  similar circumstances: see  s  15(1)(b) and (2) of  the

Coroner’s Act 1988 and Solicitor-General v Coroner at Kaitaia HC WN CP 258/01 13 March 2003 at

[12].

4 Re Inquest into Death of Clegg [1996] EWHC Admin 307 at [29]; R v South London Coroner, ex p

Thompson (1982) 126 SJ 625; R v North Humberside Coroner, ex p Jamieson [1995] 1 QB 1 at 24 cited in Jervis on Coroners (12 ed 2002) at [1.07] to [1.09]; Kelly’s case (1997) 161 JP 417; Re

Hendrie HC CHCH CP 445/87 12 January 1988 at 12; and Re Sutherland (Deceased) [1994] 2 NZLR

242 at 250.

5  See Jervis on Coroners at 20-02.   This is because the Coroner’s inquiry is inquisitorial and not accusational.   Normally an inquest is postponed pending criminal or other proceedings where the

inquest might prejudice a person in relation to those proceedings (s 28 of the Coroners Act 1988).

[3]      Mr  and  Mrs Berryman  were  parties  to  whom  fault  was  attributed  in  the inquiry into the death of Mr Richards.   Mr Richards was a beekeeper who kept beehives on the Berrymans’ farm at Te Rata Station, Retaruke in return for honey given  to  the  Berrymans.     Access  to  the  farm  was  via  a  suspension  bridge. Mr Richards died on 22 March 1994 when the bridge collapsed as he was crossing it in his honey-laden utility truck, plunging him into the Retaruke River some 30 metres below the bridge.

[4]      The bridge had been designed and built by the New Zealand Army as an Army training project.   The Berrymans paid for the materials but otherwise the bridge was designed and built for them free of charge.   The Berrymans assumed responsibility for the maintenance of the bridge under an agreement dated 23 March

1986 (“the Agreement of Satisfaction”).   The Agreement of Satisfaction recorded Mr Berryman’s satisfaction with the design, materials and construction of the bridge and stated that the Army was not responsible in any way for its performance.

[5]      It is now known that the bridge as designed and built was not fit for a semi- permanent or permanent purpose because the supporting beams (called “transoms”) under the deck of the bridge were made of untreated Oregon timber which would lose their strength when subject to the weather.  This loss of strength was accelerated because each transom was made of two pieces of timber bolted together which were not “flashed” (ie. they did not have a protective metal strip over the join).  That loss of strength occurred causing the bridge to collapse when Mr Richards was crossing it eight years later.  There were other issues concerning the design and construction of the bridge as well.  The bridge has since been completely rebuilt.

[6]      The  inquest  into  Mr Richards  death  took  place  in  1997.    The  Coroner considered there were lessons to be learned from the events that might help to avoid deaths in similar circumstances.  In that context the Coroner made adverse comments primarily about Mr and Mrs Berryman, but also about the Army and Mr Richards. He said that Mr and Mrs Berryman saw, or ought to have seen, the signs that the bridge  was  deteriorating.    He  said  that  the  bridge  was  “an  accident  waiting  to happen” and unless Mr and Mrs Berryman had implemented remedial procedures almost immediately it was going to happen.  Adverse comment was made about the

lack of experience of Second Lieutenant Armstrong, who was responsible for the design and construction of the bridge.   However, the Coroner also said that the “bridge was constructed according to proper practice and procedure in an appropriate manner” and that “[t]he problem arose after the completion of the bridge and its handover by the New Zealand Army”.  Adverse comment was also made about the speed at which Mr Richards was travelling.

[7]      The Berrymans take issue with the adverse comment made about them and the findings that the Army were not at fault and want a second inquest to take place. In essence their concerns are two-fold.  First, they believe that the submissions made by the Army to the Coroner were a “veritable litany of lies”.  Secondly, they believe new evidence establishes that the Army was at fault in the bridge’s collapse and they were not.

[8]      Although  there  are  some  side  issues,  principally  the  root  cause  of  the Berrymans’ concerns arise out of the Army’s own investigation (“the Court of Inquiry”) which it had conducted prior to the inquest.  That disclosed that there were errors  in  the  design  of  the  bridge  and  that  the  untreated  Oregon  timber  was unsuitable for a semi-permanent or permanent structure.  The Court of Inquiry was conducted under the Armed Forces Discipline Rules of Procedure 1983 (“the Armed

Forces Rules”).  Those rules provide that the court sits in private;6 that the record of

the proceeding and any evidence are not admissible in evidence “against any person in any other proceedings, judicial or otherwise”;7 and that the record of proceedings cannot be disclosed “without authority from a superior commander of the service concerned”.8

[9]      The Army did not disclose to the Coroner that the Court of Inquiry had taken place.  Nor did it disclose the design and construction errors and the unsuitability of the  untreated  Oregon  timber  that  had  been  identified  in  the  Court  of  Inquiry evidence.   Instead the Army submitted to the Coroner that the bridge was appropriately designed and constructed and was fit for its purpose.  For their part the

6 Rule 146 of the Armed Forces Rules.

7 Rule 158 of the Armed Forces Rules.

8 Rule 159 of the Armed Forces Rules.

Berrymans had been involved in the Court of Inquiry but were not aware of the findings made.  They did not inform the Coroner that the Court of Inquiry had taken place.  Nor did they inform the Coroner of other evidence they had obtained which (amongst other things) had also  concluded,  in  effect,  that  the  untreated  Oregon timber used in the transoms was unsuitable.  The Berrymans later obtained the Court of Inquiry’s findings and the evidence on which it was based (primarily “the Butcher report”) in circumstances that are discussed below ([66]).

[10]     Ever since the Coroner’s findings were made the Berrymans have sought to clear their name.  This proceeding is a continuation of their efforts to do so.  Three unsuccessful attempts were made to have the Solicitor-General order a new inquest or to apply to the High Court for such an order.  A proceeding for judicial review of those decisions and of the Coroner’s inquest was commenced but discontinued when the High Court ruled that evidence from the Court of Inquiry could not be used in

that proceeding.9    A fourth attempt was made to have the Solicitor-General order a

new  inquest  or  to  apply  to  the  High Court  for  such  an  order,  but  was  again unsuccessful.   A damages claim against the Army was also commenced.   In the course of these efforts the Berrymans’ counsel publicly released information from the Court of Inquiry for which he was found in contempt.10

[11]     It is now in the public domain that the Army did not disclose to the Coroner the information it had obtained about the cause of the collapse of the bridge from the Court of Inquiry.11   There has also already been a finding by a Judge of this Court, concurred  in  by  the  Solicitor-General,  that  the  Army  made  submissions  to  the Coroner that “the Army either knew, or ought to have known, were wrong”.12   It is also in the public domain that the untreated Oregon timber used in the transoms was

9 Berryman v Solicitor-General [2005] NZAR 512 at 515 (discovery application).

10 Solicitor-General v Miss Alice [2007] 2 NZLR 783 (contempt proceeding).

11 See, for example, Berryman v Solicitor-General [2005] NZAR 512 at 515 (discovery application);

and Berryman v Solicitor-General [2005] 3 NZLR 121 (where the Army failed in an application for an injunction against TVNZ which had received a copy of the Butcher report).

12  Berryman v The Solicitor-General HC WN CIV 2003-485-1041 11 May 2005 at [61] (in the context of a submission that the Army should not be entitled to costs in successfully opposing a

discovery order) and concurred in by the Solicitor-General in his decision on the Berrymans’ fourth request for a new inquest which is discussed later at [71]. These findings are referred to in Berryman

v Solicitor-General (No. 2) [2006] NZAR 644 at [9] (strike out application) and in Solicitor-General v

Miss Alice [2007] 2 NZLR 783 at [67], [68] and [75] (contempt proceeding). Submissions for the

Army emphasise its position that there was no intent to mislead the Army and that it acted in good faith.

unsuitable for use in a semi-permanent or permanent structure and that there were other errors as well.13 The Berrymans believe that there is also evidence to show that the  Coroner  was  wrong  to  place  the  blame  for  the  collapse  on  inadequate maintenance procedures.

[12]     In this proceeding:

a)       the  Berrymans  apply  for  judicial  review  of  four  decisions  of  the Solicitor-General) (the first defendant) or his Deputies, each of which declined the Berrymans the opportunity for a second inquest.   Six grounds of review are alleged but these can be grouped into the three categories of review, namely: illegality, irrationality and procedural impropriety.  On these causes of action an order for a new inquest is sought.  For the Solicitor-General it is submitted that the decision to decline a new inquest was properly made and none of the grounds of review are made out;

b)against  the  New Zealand  Defence  force  (the  second  defendant) judicial review is sought of the Army’s decisions in relation to the information it disclosed to the Coroner.   It is alleged that the Army acted improperly and in breach of natural justice.  Various orders and declarations are sought.  For the Army it is submitted that its conduct before  the  Coroner  is  not  amenable  to  judicial  review  by  the Berrymans and the Court of Inquiry and Butcher report cannot be used against the Army.  It also submits that it acted in good faith; and

c)       review of the Coroner’s Court (the third defendant) is also sought on the basis that the Coroner failed in his duty to ensure that the appropriate and relevant evidence was properly and fairly before it. This claim seeks to quash or set aside the Coroner’s findings.   The Coroner’s Court abides the decision of this Court.

13 See, for example, Berryman v Solicitor-General HC WN CIV 2003-485-1041 11 May 2005 at [61] (costs application).

[13]     On the face of it, it is easy to see why the Berrymans want a new inquest and why there could be some public sympathy for their efforts to obtain that.  Regardless of what the evidence now establishes or might be available to establish, a public inquiry has potentially “miscarried” in that, in reaching his findings, the Coroner relied on evidence given by the Army and submissions made on behalf of the Army that did not disclose the issues and/or errors in the design and construction of the bridge which its own Inquiry had found.  At the very least this puts in doubt whether some of the Coroner’s findings are reliable.  Indeed, a Judge of this Court has said that if 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 of the transoms”.14   That said, there are reasons why a new

inquest is not now desirable.  That comes back to the purpose of an inquest and what a new inquest would achieve in light of that purpose.

[14]     For reasons which follow in more detail below I find against the Berrymans in their attempt by this proceeding to have a new inquest ordered.  It is now known why the bridge collapsed and what errors were made.  The only purpose of a further inquest would to be to endeavour to apportion blame for the collapse of the bridge as between the Army and the Berrymans.  That is not the purpose of an inquest.  Nor is it a function that an inquest is well equipped to perform generally, and even less so more than 10 years after the death of Mr Richards and around 20 years after the

bridge was built.15   There were lessons to be learnt, but they have or ought to have

been well and truly learnt through other events that have taken place.   However, because there can no longer be public confidence in the findings of fact concerning the Army on which the Coroner’s adverse comments were based I consider it appropriate to quash those findings that are now in doubt.  I do so pursuant to the review of the Coroner’s decision.

[15]     In terms of the specific grounds on which this proceeding was brought I find as follows:

14 Berryman v The Solicitor-General HC WN CIV 2003-485-1041 11 May 2005 at [61] (considering costs on discovery application).

15 Taking the time from their fourth application to the Solicitor-General which is principally the issue

before this Court.

a)       The Solicitor-General’s decisions not to order a new inquest took into account  the  relevant  considerations,  did  not  take  into  account irrelevant considerations, was not based on any material mistake of fact, was reasonable and was not made as a result of a procedurally unfair process;

b)The Army’s decisions and/or conduct in relation to the inquest are not able  to  be  challenged  by  the  Berrymans  in  a  judicial  review proceeding brought against the Army.  If the Army’s decisions and/or conduct denied the Berrymans a fair hearing before the Coroner then it is the Coroner’s decision that is reviewable.

c)       The irregularities as specifically alleged against the Coroner are not made out or did not cause unfairness to the Berrymans.  Nevertheless, it is clear that the Berrymans’ concern is that the Coroner’s hearing was unfair to them because of the Army’s conduct.  I consider that the Army’s   conduct,   as   previously   stated   by   the   High Court   and concurred in by the Solicitor-General, raises real doubt as to whether justice was done or was seen to be done in respect of the findings of fact  concerning  the  Army  on  which  the  adverse  comments  were based.   Those findings should be formally quashed (see [188] and [189]).

Preliminary matters

[16]     At the commencement of the hearing some preliminary matters were raised. First, the Army sought a ruling that the Court of Inquiry report and the evidence before  the  Court  of  Inquiry  could  not  be  used  in  evidence  against  it  in  this proceeding.  It accepted that the Court of Inquiry report and the evidence could be considered by this Court in the context of considering the judicial review of the Solicitor-General’s decision not to order a new inquest.   That review could not sensibly take place without reference to it.   But it was submitted that this did not make the material “admissible” in the cause of action against the Army.  It submitted that this followed from the words of r 158 of the Armed Forces Rules.  In any event

it submitted that this issue was decided in an earlier High Court decision16  and is now issue estoppel. Because I find that the Army’s conduct is not amenable to be reviewed by the Berrymans (see [165] to [172]), and  the  Coroner’s  decision  is reviewable without admitting the material from the Court of Inquiry as evidence in that claim (see [186]) it is not necessary for me to deal with this issue.

[17]     Secondly,  the  Solicitor-General  objects  to  the  admissibility  of  affidavit evidence which the Berrymans have filed in a separate proceeding against the Army (for misfeasance).  The evidence contains opinions about the design and construction of the bridge, the suitability of the materials and whether maintenance was possible. The evidence is objected to on a number of grounds the most important of which is that the evidence was not before the Solicitor-General when the requests for an inquest were declined.  Similarly, the Army objects to aspects of the submissions for the Berrymans that are not accurate, not based on any evidence or based on new evidence that was not before the Solicitor-General.  To the extent it is necessary to refer to those aspects of the evidence or submissions I deal with the objections later (see [100], [156] and fn 62).

Events prior to the inquest

OSH prosecution

[18]     Occupational Health and Safety (“OSH”) commenced an investigation soon after  the  collapse of  the bridge.    This  led  to  the laying  of  charges  against  the Berrymans under the Health and Safety in Employment Act 1992.   Two of these charges were later withdrawn, leaving one charge against Mr Berryman.  That charge was dismissed by the District Court on 22 February 1996 on the basis that the bridge was not a “place of work” as required by the section under which Mr Berryman was

charged.17   OSH lodged an appeal but then decided against proceeding with it.

16 Berryman v Solicitor-General [2005] NZAR 512 (discovery).

17 Department of Labour v Berryman [1996] DCR 121.

Works Consultancy Services

[19]     Within days of the bridge’s collapse Mr and Mrs Berryman instructed Works Consultancy Services  (“Works”)  to  assess  the  damage  and  provide  a  report  on repairing the bridge.  Works inspected the bridge in its collapsed state and prepared its first report on 5 April 1994.  This report stated that:

a)       The original design of both the transoms and the stringers (timber blocks laid between the transoms and the deck) changed during construction.

b)The decking and the design of the transoms as changed during construction (from 200 x 200 to 300 x 15) were capable of supporting a 1 tonne wheel load, but the design of the stringers as changed during construction (from 150 x 100 to 150 x 75) were not.

c)       Calculations indicated that the least likely part of the bridge to fail due to inadequate strength was the transoms, followed by the decking and stringers.

d)The working life of the Oregon timber used, even if it was in good condition at the time the bridge was built, was “severely limited”.

e)       Two of the transoms had failed.   They had failed because they had lost  75%  of  their  strength.     That  loss  of  strength  was  due  to weathering over time.

f)        The bridge was built in a valley which experiences little wind and is often subjected to heavy fog.  These weather conditions had weakened the transom to a point where it could no longer sustain the loads it was designed for.

g)       The  current  appearance  of  the  timber  deck  was  “poor”.    Moss overgrowth and surface debris was present on all timber elements. The transoms and stringers showed signs of rot and dampness.

[20]     Thus the report attributed the bridge’s collapse to understrength transoms caused by timber that had weathered.  Implicitly at least, it was critical of the design of the stringers and the use of the Oregon timber18  for the transoms and it made comments about the poor appearance of the decking, transoms and stringers.

[21]     If Works’ conclusions were correct they had implications for both the Army and the Berrymans.  There is, as I understand it, a dispute between the Army and the Berrymans as to exactly who said what in relation to the decision to change from the original specified material to the Oregon.  But it is clear that the Berrymans were at least involved in that decision by proposing its use and it is also clear that the Army agreed to use the timber.  Additionally the Army had designed stringers not capable of supporting a 1 tonne wheel load (albeit that this had not caused Mr Richards to die) and the bridge was in poor condition when the Berrymans had responsibility for its maintenance.

[22]     A second report from Works dated 11 May 1994 was also obtained.   This report made calculations as to the likely speed at which Mr Richards was travelling over the bridge.

Court of Inquiry

[23]     An Army Court of Inquiry was conducted in September 1994.  The Court of Inquiry was to collect and record evidence on “matters relating to the construction of” the bridge “and its subsequent collapse” and to report and comment thereon as required by the Court’s Terms of Reference.  The Court of Inquiry received evidence from Second Lieutenant Armstrong (who by now had become Major Armstrong), Sergeant   Vincent   (now   Mr   Vincent   having   since   retired   from   the   Army), Mrs Berryman and Mr Butcher.  Major Armstrong and Mr Vincent were the primary

18 The report does not expressly state that the Oregon timber was unsuitable and should not have been used.

Army personnel involved in the design and construction of the bridge.  Mr Butcher was an engineer and he had been asked to comment on certain questions in the Terms of Reference.

[24]     The bridge had been rebuilt by the time that Mr Butcher was instructed. Mr Butcher’s  conclusions  were  based  on  the  work  carried  out  by  Works  (the Berrymans  had  disclosed  the  Works  report  to  him),  photographs,  Mr Butcher’s discussions with the Berrymans and Army personnel, and his own observations of decayed transom material he recovered from beneath the rebuilt bridge.

[25]     Question 10 of the Court of Inquiry’s Terms of Reference asked “was the design adequate for the bridge’s intended use?”.   Mr Butcher concluded that “the design of the deck structure could not be considered as adequate for the bridge’s intended use”.   In reaching this conclusion he referred to and discussed “several technical errors and errors of judgment in the design calculations”.  He referred to the absence of anything to suggest that the design calculations had been subjected to a “checking protocol, or QA procedures, or a peer review” and that there was no reference to the applicable New Zealand standards or the recommended practice for the design of bridges in New Zealand.  He further concluded, however, that “[t]he inadequacies  of  the  design  procedure”  “did  not  contribute  to  the  failure  of  the transom nor to the resulting collapse” of the bridge.

[26]     Question 16 of the Court of Inquiry’s Terms of Reference asked “were the construction materials/methods adequate for the bridges [sic] intended purpose/design?”. Mr Butcher said:

The decision to use untreated timber in the original bridge cannot be supported … In the construction of the bridge, I am informed that second- hand Oregon … was utilised for the transoms and stringers.  Totara, which is very durable, was used for the decking … Imported Oregon … has a very short life when exposed to weather or when subject to alternate wetting and drying.

[27]     Question 17 of the Court of Inquiry’s Terms of Reference asked “was the bridge constructed in accordance with the design and accepted construction methods and statutory standards applicable at the time?”.  Mr Butcher said:

… significant changes were made to the structure between the Oct/Nov 1985 design and the time of construction.  Not only were timber species of lesser durability introduced but also member sizes reduced despite the increase in the live load.   Undoubtedly the Owners as suppliers of the materials influenced many of these changes.  …

The concept of structure and construction, apart from the durability of the timber species used, were in my opinion appropriate and applicable.  I am not in a position to comment on the construction methods employed at the time in the building of the bridge. …

There is no evidence to indicate that a building permit was obtained for the bridge nor that the means of compliance standards were followed in the design and construction of the bridge.

[28]     Question  19  of  the  Court  of  Inquiry’s  Terms  of  Reference  asked  “what caused the bridge to collapse?” Mr Butcher said that the transom failed due to its reduction in strength which in Mr Butcher’s opinion was “entirely due to decay of the untreated timber”.  He referred to a transom found lying under the new bridge as showing “considerable and serious decay of surfaces which had been in contact including the internal basis of the laminated member”.  He further said 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”.

[29]     Question 20 of the Court of Inquiry’s Terms of Reference asked “were there any additional factors that contributed to the bridge’s collapse?” Mr Butcher stated:

There are several additional factors which in my opinion contributed to the collapse. They are:

(a)  The decision to use two 300x75 beams bolted together for the transoms in place of a solid 300x150 member.   The interface was not flashed and permitted the entry of water to the centre of the laminate which, with the oxygen available in the gap, encouraged fungal growth and accelerated the rate of decay. The effective life of the member would have been significantly reduced as a result.

(b) The  importance  of  a  regular  inspection  and   maintenance programme for the bridge as a whole and the structural components of the timber deck-structure in particular, does not appear to have been recognised by the owners of the bridge.

[30]     Thus, like the Works report, Mr Butcher’s conclusions if they were accepted had implications for the Army and the Berrymans.  Mr Butcher essentially confirmed

Works’ view that the Oregon timber used in the transoms was unsuitable because it was susceptible to weathering and that this had led to the failure of the transom and the resulting collapse of the bridge.  In addition:

a)       He was critical of the lack of flashings which meant that the life of the transoms  was  significantly  reduced  and  this  contributed  to  the bridge’s collapse.

b)He considered that the Berrymans had not recognised the importance of a regular inspection and maintenance programme and this had also contributed to the bridge’s collapse.

c)       He considered there were other defects in the design of the bridge and that the relevant compliance standards may not have been complied with so that the bridge was not fit for its intended purpose.  However these deficiencies had not led to the bridge’s collapse.

[31]     The report of the Court of Inquiry was dated 29 September 1994.  It answered each of the questions in the Terms of Reference.  In essence it accepted Mr Butcher’s views on each of the questions in its Terms of Reference.  In relation to Question 16 it stated that “[t]he decision to use untreated timber being second-hand imported Oregon was unwise … Expert opinion is that Oregon timber should not have been used … when it was obviously intended to be semi-permanent or permanent in nature”.

[32]     The Court of Inquiry concluded as follows:

Conclusions

25The 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 23kN (about 2350 kg) of a vehicle crossing the bridge.

26The 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.19

27The 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.

28The 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.

29The landowners fully accept their responsibility in regard  to the bridge and in no way hold Army responsible for its failure.

30Of 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.

31In  the  Court’s  opinion  Major  Armstrong,  Sgt  Vincent  and  the members of the MAP construction troop have no liability.

[33]     The report also made recommendations in respect of future projects.   The recommendations included:

a)       Reviewing the Army’s policy on accepting “civil aid tasks” so as to recognise the residual individual personal liability of those involved in those tasks and to put in place procedures that would allow the Army to continue to engage in such projects but with the risks known and minimised;

b)Establishing  quality  assurance  procedures   to   cover   design   and construction of all works projects; and

c)        Fully  documenting  and  archiving  those  documents  for  all  such projects.

19 Dr Moodie submits that this ignored Mr Butcher’s evidence that an additional cause of the collapse was the laminated transoms not being flashed, which accelerated the decay.   It is correct that the Court of Inquiry does not specifically refer to this, but the conclusion that the Oregon timber failed because of weathering is correct. The lack of flashings accelerated that weathering.

The inquest

Coroner’s powers

[34]     At the time of the Coroner’s inquest into Mr Richards’ death, the Coroner’s powers were set out in the Coroners Act 1988 (“the Coroners Act”).20    Under the Coroners Act, the decision about whether to hold an inquest into a death vests in the first instance with the Coroner.21   In making that decision the Coroner is required to have regard to the following matters:22

(a)  Whether or not the causes of death concerned appear to have been natural; and

(b) In the case of a death that appears to have been unnatural or violent, whether or not it appears to have been due to the actions or inaction of any other person; and

(c)  The   existence   and   extent   of   any   allegations,   rumours, suspicions, or public concern, about the death; and

(d) The   extent   to   which   the   drawing   of   attention   to   the circumstances of the death may be likely to reduce the changes of the occurrence of other deaths in similar circumstances; and

(e)  The  desire  of  any  members  of  the  immediate  family  of  the person concerned that an inquest should be held; and

(f)  Any other matters the coroner thinks fit.

[35]     If a Coroner determines to hold an inquest, the purpose of the inquest is:23

(a)   Establishing, so far as is possible,- (i)  That a person has died; and

(ii) The person’s identity; and

(iii) When and where the person died; and

(iv)The causes of the death; and

(v) The circumstances of the death; and

20 The Coroners Act 1988 has since been replaced with the Coroners Act 2006. The new Act does not change the nature and purpose of an inquest.

21 Section 20 of the Coroners Act.

22 Section 20(1) of the Coroners Act.

23 Section 15 of the Coroners Act.

(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.

[36]     A Coroner “may in the course of or as part of the findings of an inquest, comment on the conduct, in relation to the circumstances of the death concerned, of any person” but any adverse comment cannot be made without the Coroner taking steps to give the affected person(s) “a reasonable opportunity to be heard in relation to the proposed comment”.24

[37]     At  the  inquest,  a  Coroner  hears  evidence  from  any  person  who  tenders relevant evidence and from anyone the Coroner thinks it appropriate to examine.25

Evidence is given on oath26  and is subject to cross-examination by the Coroner.27

Any person whom the Coroner has directed to be notified or who has a sufficient interest in the subject or outcome of the inquest may personally or by counsel attend the inquest and cross-examine the witnesses.28

Procedure before the Coroner

[38]     The  commencement  of  the  Coroner’s  inquest  was  delayed  so  as  not  to prejudice the Berrymans in relation to the OSH prosecution.   Following the disposition of that proceeding, the first two days of the Coroner’s inquest took place on  7  and  14  February  1997.    The  hearing  was  then  adjourned  to  enable  the Berrymans to tender further evidence.

[39]     The Army was not a party to whom the Coroner initially gave notice as a party having an interest in the death.29   This meant that the Army was not a party to the pre-inquest communications and nor was it represented on the first two days of the inquest hearing.  The Coroner had, however, received a signed statement from

24 Section 15(2) of the Coroners Act.

25 Section 26(1) of the Coroners Act.
26 Section 26(2) of the Coroners Act.

27 Section 26(3) of the Coroners Act.
28 Section 26(4) of the Coroners Act.

29 Pursuant to s 23 of the Coroners Act.

Major Armstrong.    This  had  been  prepared  at  the  request  of  the  police  for  the purposes of the inquest.  (Major Armstrong had earlier prepared a brief of evidence for the purposes of the OSH prosecution of Mr Berryman.)   Major Armstrong’s statement was tendered at the hearing on 7 February 1997.  In that statement Major Armstrong stated that he had designed the bridge “in accordance with Australia and United Kingdom design procedures”.   The only mention of the materials was that they were present on site when they arrived to commence construction and that the “timber to be used in the construction of the bridge had been purchased second- hand”.  The statement referred to and attached the Agreement of Satisfaction.  Major Armstrong was not required by any party to attend the inquest for cross-examination or further question.   The Coroner sought further details of Major Armstrong’s qualifications and experience.   These were provided by letter dated 12 February

1997.

[40]     On 18 February 1997 the Army wrote to the Coroner, noting that it had not been notified of the hearing, and stating that it wished to be heard.   The Coroner advised that it had no objection to the Army being represented when the inquest resumed.  The Coroner also said (letter dated 19 February 1997):

I can tell you that it is likely that there will be critical comment of one or more persons and that this may include members of the New Zealand Army. If that is to be the case I shall firstly inform you and also such persons directly.

[41]     The hearing resumed on 18 April 1997 and the hearing of the evidence was completed.  By this time the Army was represented by counsel and the Army called evidence from Mr Vincent.   In his statement Mr Vincent referred to the materials being supplied by Mr Berryman, with some being on site when they started and some being delivered later.   He said “[a]s far as I was concerned the materials appeared suitable”.  In cross-examination by counsel for Mr Berryman he was asked “and  from  your point  of  view  materials appeared  to  be  suitable?”  to  which  he answered “at the point of construction yes”.  He was further asked “and you were happy with [the] idea of two pieces of timber being bolted together laminated [sic] for use as transoms?” to which he answered “yes it had been previously calculated out to be sufficient”.

[42]     In  cross-examination  by  counsel  for  the  Department  of  Labour  the  life expectancy of the bridge was touched on as follows:

Q.       Did you have any agreement as to life expectancy? A.      No we didn’t.

Q.       What [was] your view at [the] time?

A.        At that point materials we inspected aware [sic] that the materials were a few years old but again we didn’t put a life span on materials.

[43]     Counsel for the estate of Mr Richards touched on weather as follows:

Q.        In your experience does weather play a part in the deterioration of [the] bridge over a period of time in addition to [the] volume of traffic?

A.       My own personal opinion yes.

[44]     The Coroner touched on standards and life expectancy as follows:

Q. A. Q.	The manuals you referred to are these military engineering manuals? Yes they are. Do you know if the military manuals would take into account that a
bridge designed in peace time should last many years as opposed to a military situation where a bridge might only have to last a short time?
A.	I don’t think I will be able to answer.
[45]	Over	the   three   days   of   evidence,   in   addition   to   the   evidence	of

Major Armstrong and Mr Vincent, the Coroner heard or received evidence from Mr and  Mrs Berryman,  Ms  Thomason  (Mr Richards’  partner),  Dr  Liley,  Detective Constable Anstis, Mr Marks (an expert called by the Berrymans), Mr McConkey (an OSH inspector) and Mr Armitage (an OSH engineer).

[46]     After completion of all the evidence the Coroner wrote to those parties in respect of whom he intended to make adverse comment.  The parties were advised of the timetable for making written submissions and that they would also have an opportunity to make oral submissions when the hearing resumed.   The Coroner indicated that most of the adverse criticism would fall upon Mr and Mrs Berryman,

but some  criticism  would  also  be  made  of  Mr Richards  and  Second  Lieutenant

Armstrong.

[47]     In respect of Mr and Mrs Berryman the Coroner indicated an intention to make adverse comment about the absence of signage as to speed and weight restrictions, the inadequate maintenance programme, the signs to be seen that the bridge was deteriorating and that the Berrymans were in a position where they had knowledge that the bridge was deteriorating and that something should be done to remedy this.  In respect of Mr Richards the Coroner indicated an intention to make adverse comment about the speed he was driving at.  In respect of the New Zealand Army the Coroner said that it was “presently his intent to make particular comment” on the following:

The New Zealand Army or more properly in terms of section 15 Second Lieutenant Armstrong.  This Officer was junior and therefore inexperienced and appeared to lack formal technical qualifications.   He appears to have relied  on  two  publications  namely  the  British  and  Australian  Military Manuals for design and also to have relied heavily upon his senior non commissioned   Officer   Staff   Sergeant   Vincent   who   although   very experienced  in  practical  terms  does  not  appear  to  have  necessarily  had design experience  or formal  qualification  in  design.    Second  Lieutenant Armstrong does not appear to have recommended signage for the bridge regarding weights and speeds or to have recommended any formalised maintenance programme.

[48]     Mr and Mrs Berryman had legal representation at the hearings on 7 and

12 February and 18 April 1997.  Their legal aid grant was insufficient to cover the completion of the inquest and so Mr Berryman prepared the written submissions and delivered  oral  submissions  for  himself  and  Mrs Berryman.    The  focus  of  the Berrymans’ evidence and their written and oral submissions was that Mr Richards had died because he was speeding, his truck was overloaded and he was not wearing a seat belt.  The Berrymans were also critical of the Coroner’s failure to order a post mortem because, for example, it may have been that Mr Richards had suffered a heart attack or was under the influence of alcohol.  They made no mention of the Works report or that a Court of Inquiry had taken place.  They did not seek to place any blame on the Army for the design and construction of the bridge or the use of untreated Oregon timber.

[49]     The Army also filed written submissions (dated 12 June 1997) and made oral submissions.   The submissions were prepared by counsel instructed by the Army who had been given a copy of the Court of Inquiry report, including the evidence and exhibits  (which  included  the  Butcher  report  and  the  Works  report).    Counsel prepared the submissions in draft for the approval of the Army before they were submitted to the Coroner.  Like the Army’s evidence, the submissions did not refer to  the  errors  in  the  design  and  construction  of  the  bridge  that  Mr Butcher  had identified.  Nor was the Coroner informed that the Court of Inquiry had taken place nor what the Court of Inquiry had concluded.  The submissions referred to the one issue raised by a witness (incorrectly fitted clips on the dropper cables) which did not cause or contribute to the bridge’s collapse.  The submissions emphasised that by the Agreement  of  Satisfaction  the  Berrymans  had  taken  over  responsibility  for  the bridge, that there was nothing to suggest to the Army that the Berrymans were not able to take over that responsibility and that once the Agreement of Satisfaction was executed the Army’s involvement ended.    As to the design or construction of the bridge the Army submitted that:

•   “… the bridge was properly designed and constructed and fit for its intended use when it was handed over” (at para 8);

•   “…  the  bridge  was  built  in  a  proper  manner  …  Accordingly,  in  a causative sense, there was  nothing in  the  entire construction  of  this bridge that contributed to the accident” (at para 18);

•   “The task was properly completed and it is again submitted that there is nothing in a causative sense that links [Second Lieutenant] Armstrong’s

‘lack’ of formal technical qualification with the accident and resulting death” (at para 19);

•   “He  appears  to  have  relied  on  the  British  and  Australian  Military manuals for design.  This was the evidence adduced.  Again, the same submissions apply.  The construction task was properly completed and there was nothing in a causative sense linking anything about the design derived from the manuals, with the accident and subsequent death” (at para 20);

•   “… the design and drawings were checked by senior officers in the School of Engineering and, of course, as the bridge was properly constructed there was nothing in a causative sense that in any way links a lack of qualification on the part of Staff Sergeant Vincent and the accident and death” (at para 22);

•   “… there appears to have been a general acceptance that the transoms had  lost  strength  due  to  weathering,  i.e.  were  partly  rotten”  (at para 25(e)); and

•   “… the Army or Army personnel did not cause or contribute to this tragic accident” (at para 27(a)).

[50]     Counsel  for  the  Department  of  Labour  also  made  submissions  that  “the bridge perfectly sound and adequately constructed as it was in 1986, weathered and rotted over the eight years subsequent to its construction” (at para 5).

[51]     The result was that the only expert evidence the Coroner had before it as to the cause of the bridge’s collapse was from Mr McConkey and Mr Armitage from OSH, and Mr Marks.   Mr Marks gave evidence concerning the speed at which Mr Richards was travelling and that if he had been wearing a seat belt and driving at

5 km per hour he may have survived but he also commented that the transoms had lost strength and sooner or later the bridge was going to fail.

The Coroner’s decision

[52]   The Coroner gave his decision orally on 20 June 1997, following oral submissions from three counsel (including Mr McGuire for the NZ Army) and from Mr Berryman.  His decision discussed the procedural history.  As to the purposes of the inquest the Coroner said:

Next I come to the purpose of the inquest and that is covered in section 15 of the legislation.  That is to establish that a person has died, the identity of the person, where and when death occurred, the cause of death and the circumstances of death.  Also the making of recommendations or comments on avoidance of circumstances similar to those in which death occurred. Also the matter in which persons act in such circumstances to draw public attention to matters to reduce the chances of death in similar circumstances. That in the Courts mind is the crux of the matter.  The first matters to do with identity, place and time even cause of death can usually be established relatively simply.   It may well be an exercise simply of giving a medical finding and a factual finding of time, date and place.  If the Coroner’s Court were only to have that sort of “rubber stamp” function in the view of the Court it would be a sad day indeed.  The prime function of the Court is to review  the  circumstances  of  the  death  and  to  refer  again  I  think  to Mr Brewer’s submissions to make recommendations which will assist in preventing deaths in similar circumstances.  Mr Brewer’s submission I think referred to the object which is to educate others to avoid a similar situation.

[53]     The Coroner made his formal findings.  He found that Mr Richards died at approximately 1pm at Te Rata Station, Retaruke near Taumarunui on 22 March

1994.   He died as a result of an accident wherein a bridge over which he was crossing in a utility vehicle collapsed.  The collapse caused his vehicle to plummet to the gully floor.  He died from a severe blow to the front of the head.  As to the cause of death the Coroner considered and rejected Mr Berryman’s submission that no conclusion as to the cause of death could be made because no post mortem had been carried out.   The  Coroner  said  that  even  if there  were a  medical  misadventure intervening in some way (eg. a heart attack or a bee sting) “it is difficult to conclude that the collapse of the bridge would simply have no bearing at all on the circumstances the Court required [sic] to investigate”.

[54]     As to adverse comment, the Coroner said in relation to the New Zealand

Army:

Firstly the role of the New Zealand Army. … Mr McGuire submits that the Coroner’s comments must have causative flavour to them.  I am not sure that I agree fully with Mr McGuire and I refer in particular to … the quotation … “it does not confine the Coroner to recommendations and comments on the avoidance and circumstances which directly caused the death under consideration but allows him to recommend and comment on all other implications  of  similar  circumstances  surrounding  the  death”.  …  I  am mindful of the need for restraint when exercising comments and the need for relevance. … The problem I have with the New Zealand Army is not what relates to the construction of the bridge which the Court accepts was at all times completely adequate but rather that the Second Lieutenant by the very nature of his rank was a junior officer with very limited practical experience and I might say because of his technical qualifications limited technical qualification. … I had initially considered that perhaps the second [sic] Lieutenant’s designs were not checked by his superiors but I accept Mr McGuire’s  submission  that  they  in  fact  were  and  that  there  is  [sic] indications before this inquiry namely the letter from him that that is the case.  I do not wish to take that matter much further.   Ultimately the failure of the bridge does not in any way impinge upon the New Zealand Army.

…My concerns  [sic] with  the  New Zealand  Army  is  simply  that the

Court would  perhaps  have  thought  that  this  project  was  better  left under the supervision of an officer of more experience than a Second Lieutenant notwithstanding that the job was completed satisfactorily albeit if the task was not left in charge of a superior officer then there was some  more direct oversight or checking by a  superior  officer.    Here  in particular I refer to Mr McGuire’s submissions relating to the apprentice carpenter building the house and the house was well built so there is no problem.   I quite accept there is no problem.  The bridge was well built. There is no problem.  What the Court suggests however is that surely an apprentice carpenter building a house would be supervised to some extent. The  Court  merely  makes  the  recommendation  for  the  assistance  of

future involvement perhaps by the New Zealand Army that it may be prudent to review procedures where major engineering work is concerned.   Either  to  put  that work  under the  direct  control  of  an experienced superior officer or under the indirect control by requiring time to time checks etcetera.   But I emphasise that there is no suggestion here that the standard of construction of the bridge was in any way lacking. (emphasis added)

[55]     In relation to Mr Richards the Coroner said:

Next the Court turns to the conduct of the deceased Mr Richards.   It is suggested   that   two   things   may   have   impacted   upon   Mr Richards’ involvement in his own demise.  Firstly the fact that he was not wearing a seatbelt.   It is suggested that this may have resulted in death where death would not otherwise necessarily have occurred.  The Court does not accept that suggestion.  … I am aware that there is evidence that the vehicle first impacted upon the riverbank but it is clear that the vehicle ended up in the river  and  that  it  became  submerged  and  it  is  clear  from  the  medical evidence that the deceased was regrettably going to die and the issue of the seatbelt was not relevant. … The second point is that it is suggested that Mr Richards was travelling too fast to safely negotiate the bridge given the speed restriction of 5kph which he was undoubtedly aware of. … Frankly although I accept that Mr Richards may well have been travelling in excess of 5kph I find it difficult in the extreme to accept that he was travelling  at  anything  like  15  or  20  kph  …  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. The crucial point however here is that Mr Marks conceded in his evidence, and the Court is mindful that Mr Marks was a witness called on behalf of Mr and Mrs Berryman, he made the concession that sooner or later the bridge was going to fail.   He made that concession in my recollection in circumstances not of the type where “well one day everything will fail the best of structures, the Sydney Harbour Bridge or the Empire State Building will fail one day but it might be in the never never”.   That was not the context of Mr Marks statement.  His statement taken in overall context was that the bridge was nearing the end of its practical life as a safe load bearing structure and was bound to fail although he did not quantify a time.  The Court got the clear impression that it was going to be sooner not later.  Speed perhaps hastened that process but of course it was a question of when not if.   Speed, if there was speed and the Court concludes that there  may well  have  been,  no  doubt  did  hasten  that process and unfortunately may have resulted, from Mr Richards [sic] point of view, in him being the victim rather than some other person unless of course major safety upgrading work had been undertaken in the immediate future. (emphasis added)

[56]     In relation to Mr and Mrs Berryman the Coroner said:

I now turn to the situation relating to Mr and Mrs Berryman’s position. Regrettably the adverse comment of the Court must largely lie with Mr and Mrs Berryman. … For all practical purposes the bridge was Mr and Mrs Berryman’s.   … [T]hey signed when the bridge was handed over to them by the New Zealand Army.   They accepted responsibility for the

bridge for practical purposes.   The bridge was their bridge. … Mr and Mrs Berryman of course relied upon the New Zealand Army to construct the bridge and to advise them in respect of the bridge and no criticism is levied of that.   No adverse comment is made.   The bridge was constructed according to proper practice and procedure in an appropriate manner after investigation by Mr and Mrs Berryman of any local body requirements. The problem arose after the completion of the bridge and its handover by the New Zealand Army.   The Court accepts the New Zealand Army does not have an ongoing obligation in respect of structures and does not provide a guarantee if you like in respect of structures.  The problem then arose as to the continuing maintenance of the bridge from time to time.

… 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 that 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.      The   Court   believes   that   Mr   and Mrs Berryman had become aware of the need for repair after all they were  closely associated  with  the  bridge.    They  passed  over  it  regularly probably  every  day.    At  the  time  of  this  incident  they  made  several references to Mr Richards to drive slowly, not to take a great load over the bridge and if he had concerns to use the alternative route.   All proper references to make all useful safeguards but also perhaps indicative of their rising concern that the bridge was becoming in need of repair.   It is not suggested for one minute that Mr and Mrs Berryman knew that the bridge was in imminent danger of collapse and here the Court is grateful for the logical submissions of Mr Brewer to that effect.   The Court concurs with those  submissions  and  repeats  them.    It  is  quite  clear  that  Mr  and Mrs Berryman were not aware that here was a tragedy just waiting to happen.   That the bridge had reached a stage where it was in reality unsafe.  They used the bridge daily.  Their family used the bridge.  Their friends used the bridge.  In fact everyone who used the bridge was likely to be in some way acquainted in a friendly way with Mr and Mrs Berryman as indeed  with  [sic]  Mr Richards.    The  Court  accepts  that  had  Mr  and Mrs Berryman believed for one minute that here was a tragedy about to unfold they would have immediately upgraded the bridge or if funds did not allow this they would have closed the bridge and used the other less convenient  but  alternative  route  to  the  farm.    Here  lies  the  unfortunate tragedy however in the situation.   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.  (emphasis added)

[57]     In relation to the reason for the adverse comment and recommendation the

Coroner said:

… in hindsight this tragedy was potentially avoidable and that is the only justification  and  the  only reason  that the  Court  has  for  making  adverse comment.  To educate in the circumstances in the hope that this tragedy may be a signal, a flag if you like, a precaution to others so that deaths in the same or similar circumstances are less likely to occur. …  The essential lesson here to be learned is that in respect of any potentially dangerous structure warning signs have to be acted upon promptly.  There must be a regular and planned programme of inspection and maintenance which must be implemented.  The Court accepts that Mr Berryman maintained the bridge.  He gave evidence of spending a day working on the bridge a few months prior to the accident.  The Court accepts that he inspected the bridge by reason of crossing it every day and looking with his eyes at the general state of the bridge but perhaps in hindsight and for future reference that is not sufficient in circumstances like this.   Perhaps a regular and planned programme of inspection and maintenance must be implemented.  …  There  could  have  been  steps  taken  to  devise  and implement a programme of inspection and regular maintenance.  Now that is really the lesson to be learned here.   Kenneth John Richards had the misfortune to be crossing the bridge when unknown to him or to anyone else it had in effect become an accident waiting to happen.  His speed and his load may well have contributed to the accident, it may have sped up the process, it may have meant that he became the victim rather than some other person but in effect this was an accident waiting to happen and unless Mr and Mrs Berryman had implemented remedial procedures almost immediately it was going to happen.  The bridge collapsed under the load of Mr Richards and his vehicle. …

It   simply   now   remains   to   conclude   the   inquest   by   making   the recommendation and the finding.   The recommendation arising out of this inquest.  The lesson to be learned here, if I can put it this way, is that in respect of any dangerous or potentially dangerous structures a regular and planned programme of inspection and maintenance should be implemented in order to determine whether maintenance is required in the hope that early maintenance will prevent this sort of tragedy.   That is the recommendation that I would like to go out from the Court today and really the main significant factor of the inquest. (emphasis added)

[58]     In summary then, as to “fault”,30 the Coroner found that:

30 In the sense of blameworthiness (and not in the sense of legal fault).

a)       The  Army  should  have  entrusted  the  job  to  someone  with  more experience but that the bridge was nevertheless well built and the problem lay after the bridge was built and handed over to the Berrymans;

b)Although the Berrymans carried out maintenance, that maintenance was inadequate and that they saw or ought to have seen that the bridge was deteriorating;

c)       The bridge had reached the stage where it was an accident waiting to happen;

d)Mr Richards may have contributed to that accident happening when he crossed the bridge, rather than at some later time, through driving at a speed greater than 5 km per hour and over-loading his truck.

[59]     In light of these findings the Coroner made two recommendations:

a)       That  the  Army  review  its  procedures  when  undertaking  major engineering work to ensure that an experienced superior controls the work directly or through appropriate checks;

b)That in respect of any dangerous or potentially dangerous structure a regular and planned programme of inspection and maintenance be implemented.

[60]     The  Coroner  said  nothing  about  design  defects  in  the  stringers,  the unsuitability of the Oregon timber or the failure to flash the transoms.  Those issues had not been raised by any party at the inquest despite both the Army and the Berrymans having evidence the Oregon timber had a limited life and/or was unsuitable for a semi-permanent or permanent structure, and the Army also having evidence about the design defects in the stringers and that the lack of flashings had accelerated the decay of the Oregon timber used for the transoms.

Attempts to obtain second inquest

Power to order new inquest

[61]     The Coroners Act makes provision for a new inquest to take place.   In the first instance the issue is one for the Solicitor-General who can:

a)       Order that another inquest be held “[i]f satisfied that since an inquest was completed new facts have been discovered that make it desirable to hold another”;31 or

b)Apply to the High Court for an order than an inquest be held.  In that case the High Court can order that another inquest be held if satisfied that another inquest should be held “[b]y reason of fraud, rejection of evidence, irregularity of proceedings, or discovery of new facts” or “[f]or any other sufficient reason”.32

[62]     Alternatively  a  party  might  apply  for  judicial  review  of  the  Coroner’s decision and this might result in a further inquest being held.33

Initial attempts

[63]     On 23 July 2001 the Berrymans requested that the Solicitor-General order a new inquest.  In this request the Berrymans raised a number of issues concerning the procedure and the findings made.  No reference was made to the Court of Inquiry. This request was declined by the Deputy Solicitor-General (acting under delegated authority) by letter dated 2 November 2001.   In reaching her decision the Deputy Solicitor-General had sought and received advice from a Queen’s Counsel.

31 Section 38(2) of the Coroners Act.

32   Section 40  of  the  Coroners Act.    Under the  2006 Act  the  Solicitor-General, as  well as  the

High Court, has the power to order a new inquest on this basis.

33 Jervis on Coroners at 19-01. See, for example, Matthews v Hunter [1993] 2 NZLR 683.

[64]     On 3 July 2002 the Berrymans made a second request that the Solicitor- General order a new inquest or apply to the High Court for an order.  Amongst other matters raised, the new facts relied on in support of the request were those in the Court of Inquiry’s report dated 29 September 1994.  This second request advised the Solicitor-General that the Army had withheld the report from the Inquest.  It advised that the Office of the Ombudsman had ordered its public release on 10 June 2002.  It advised that the Army had not released the exhibits to the reports but the basic conclusion  of  the  report  was  clear,  namely that  “[i]n  contrast  to  the  Coroner’s decision, the Army Report emphasises the correlation between the design and materials used to construct the bridge and the collapse of the bridge”.  This second request  was  declined  by  the  new  Deputy  Solicitor-General  by  letter  dated

11 October 2002.

[65]     On 13 December 2002 a third request was made.   In this third request the Berrymans  asked  the  Deputy Solicitor-General  to  reconsider  her  decision.    The Deputy Solicitor-General considered the further points made on behalf of the Berrymans and reviewed the matter but reached the view that there were insufficient grounds in the public interest to order another inquest.  The Berrymans were advised of this decision by letter dated 19 February 2003.

[66]     On 30 May 2003 the Berrymans applied for judicial review of the Solicitor- General’s refusal to order, or to apply to the High Court for an order for, a new inquest and the Coroner’s decision.  During interlocutories for this proceeding, the Berrymans’ counsel gained access to the Butcher report for the first time on terms set out in a consent memorandum filed in the proceeding.   The terms of the consent memorandum permitted the solicitors/counsel to summarise the Butcher report to the Berrymans but did not permit the Berrymans to inspect or receive a copy of the report.   Additionally, the consent memorandum provided that the Butcher report could not be disclosed to any other party without either the prior written approval of counsel for the  Army or Court order and that the  Butcher  report  “shall  not  be admitted as evidence in any proceeding, judicial or otherwise (r 158 of the Armed Forces Discipline Rules of Procedure 1983)”.

[67]     Some  months  later  the  Berrymans  instructed  new  counsel,  Dr  Moodie. Dr Moodie agreed to comply with the consent memorandum, but foreshadowed the possibility of  an  application  to  the  High Court  varying  the  terms  on  which  the Butcher report could be held and used.  After Dr Moodie had obtained a copy of the Butcher  report  on  this  basis  the  foreshadowed  application  was  made.     The application was granted by Gendall AJ on 17 December 2004 but was overturned by

Wild  J.34      This  meant  that  the  Butcher  report  continued  to  be  subject  to  the

restrictions set out in the consent memorandum.

[68]     After Wild J’s judgment the Berrymans discontinued their application for review.  According to Dr Moodie this was because the Berrymans did not have the resources to continue with it.35    Contrary to the terms on which Dr Moodie, as the Berrymans’ counsel, had received a copy of the Butcher report, Dr Moodie released the report to the “Sunday” programme of Television New Zealand and to various other New Zealand media and made arrangements to release it on the internet.36

[69]     There followed some public allegations that the Army’s conduct had resulted in a miscarriage of justice at the Coroner’s inquest.   The Attorney-General then requested that the Solicitor-General reconsider whether to order or apply to the Court for an order for a second inquest.   In addition, by letter dated 10 May 2005 the Berrymans also made their fourth request to the Solicitor-General for a new inquest. For the Berrymans it was submitted that the Coroner’s findings would have been different, and the Coroner would have exonerated the Berrymans, had the Coroner been informed of the Court of Inquiry and provided with the Butcher report.

[70]     For the purposes of the Solicitor-General’s report, the Chief of Defence Force made available to him the record of proceedings of the Court of Inquiry.   The Solicitor-General’s  decision  was  set  out  in  a  report  to  the  Attorney-General  on

27 May 2005. Following a request by the Attorney-General, the Chief of Defence

34 Berryman v Solicitor-General [2005] NZAR 512.

35 See Solicitor-General v Miss Alice [2007] 2 NZLR 783 at [26].

36 As a result, Dr Moodie was held to be in contempt of court for breach of the express and implied undertakings upon which he had received a copy of the report: see Solicitor-General v Miss Alice

[2007] 2 NZLR 783. The Army was unsuccessful in its attempt to restrain TVNZ from using the

report because the report had come into the public domain:  Berryman v Solicitor-General [2005] 3

NZLR 121.

Force agreed to the public release of the material from the Court of Inquiry record cited by the Solicitor-General in his decision.37  The  decision  was  then  publicly released by the Attorney-General on 21 June 2005.

The Solicitor-General’s decision

[71]     The Solicitor-General’s decision set out in detail the history of the matter. The decision discussed the applicable principles to the ordering of a new inquest and summarised these as follows:

87.1Under s 38(2) I am able to order a further inquest if I am satisfied that since the completion of the inquest new facts have been discovered that make it desirable to hold another inquest.   A new inquest is “desirable” where it is in the interests of justice that a new inquest be held.   The “interests of justice” test brings a range of considerations into play.

87.2In addition, under s 40(3) I have a discretion to apply for a new inquest  on  various  grounds,  including  discovery  of  new  facts. Where I apply, the Court, of course, makes the final decision.  When I apply I act in the public interest, and so must be satisfied that the application is a proper one, in the sense that the grounds advanced are sufficiently substantial to mean that it is seriously arguable that it is desirable in the interests of justice that a further inquest be held.

[72]     The Solicitor-General then turned to considering the request.  He stated that he had reviewed the earlier decisions made by his Deputies and that he was satisfied that they were appropriate on the basis of the material presented to them.  He said that he had also considered the matter afresh on the basis that the Coroner did not receive any, or any significant, evidence about:

a)        The design faults with the bridge;

b)The suitability of second-hand untreated Oregon for use in the deck structure of the bridge; and

c)        The lack of flashing on the transoms.

37 Counsel for the Army accepts that the Court of Inquiry record including the Butcher report may be referred to by this Court in reviewing the Solicitor-General’s decision.

[73]     He said that the question was whether these matters, “taken individually or in combination”,  provide  a  sufficient  basis  for  an  order,  or  an  application  to  the High Court for an order, for a new inquest.  He also considered the public disquiet amongst sections of the public as to whether the  Berrymans had been properly treated, the interests of the deceased’s family, the public interest in a proper process, the possibility of a different outcome and the lapse of time as being relevant to whether a further inquest would be in the interests of justice.

[74]     His conclusion was as follows:

116On balance, I do not believe that there is a proper basis for me to order a new inquest under s 38.  I accept that there is material which may constitute “new facts”; but I do not consider that it is in the interests of justice that I order a new inquest under s 38(2).

117There are five points, in particular, which persuade me that this is the correct conclusion:

117.1The periods of time since first, the bridge was built and second,  Mr Richards’  death  occurred,  are  such  that  it would be difficult for a Coroner to resolve the matters that would be in dispute, which are essentially recollections of understandings when the bridge was built in early 1986.

117.2In any event, the Coronial process is not well suited to resolution of what would be in issue.  Given the history of this matter, a further inquest will become contentious and controversial.  It will inevitably draw the Coroner beyond his  or  her  proper  role  and  will  become  focused  on attributing blame or responsibility.  As Heron J emphasised in Matthews v Hunter (see paragraph 78.2 above), the purpose of a Coronial inquiry must be assessed in terms of s 15, looked at in the context of the Act as a whole.  There is little doubt that a second inquest would move beyond the legitimate role fixed for it by the Act.

117.3Having reviewed the available material, I do not believe that   there   is   any   realistic   possibility   that   Mr   and Mrs Berryman would be exonerated if another inquest were to be held, although I accept that it is possible that greater blame may be placed on the Army for agreeing to use the second-hand Oregon for the transoms.

117.4Mr Richards’ family have at no stage indicated that they seek another inquest or that they are dissatisfied with the process or outcome of the first inquest.

117.5While, as far as I am aware, Mr and Mrs Berryman did not have a copy of the report of the Army Court of Inquiry or the Butcher Report at the time of the Inquest, they were

aware  of  at  least  the  substance  of  the  “new”  facts  or matters said to have been concealed corruptly by the Army. These were apparent from the Works Consultancy Services Report   or   from   their   own   knowledge.      Mr   and Mrs Berryman  did  not  use  the  information  available  to them because it did not suit their interests as they saw them at the time.  In effect, they now seek the opportunity to run a different case at a second inquest.  There is no reason of principle why they should be afforded such an opportunity.

118As to my applying to the High Court under s 40, I consider that there is material that may constitute “new facts”, and that public disquiet may constitute “any other sufficient reason” for the purpose of s

40(3)(b)(ii).   I also accept that the Coroner’s failure to advise the

Army formally of the inquest at the outset arguably constitutes an “irregularity of proceedings” under s 40(3)(b)(i) (although I do not consider  the  argument  to  be  a  strong  one  given  that  Major Armstrong was involved from the outset and no one sought to question him, and the Army did not ultimately participate formally in the inquest).   However, I do not consider that I could properly maintain to the Court that there is a seriously arguable case that it is in  the  interests of justice  that a  further  inquest  be held,  for  the reasons given above.

119To summarise, then, I do not feel that I can properly conclude or argue that it is necessary or desirable in the interests of justice that a further inquest be held.  Even if there were to be a further inquest, I think it inevitable that a second Coroner would conclude that:

119.1The collapse of the decking resulted from the failure of transoms as a result of decay.

119.2Mr and Mrs Berryman were to some extent responsible for the collapse.  This is likely to be on the basis indicated by the original Coroner, Mr Scott, but it is possible that a second   coroner   might   be   more   critical   of   Mr   and Mrs Berryman.

I accept that a second Coroner might make stronger adverse comments about the Army than Mr Scott did, although that is by no means certain.   But I do not consider that there is any reasonable basis for believing that any such comment would be sufficient to exonerate Mr and Mrs Berryman.

120I make no comment on the desirability of some other public process to examine what happened in this case.

Procedural impropriety in Solicitor-General’s decision

[75]     The first cause of action against the Solicitor-General is that in making the four  decisions  (2  November  2001,  11  October  2002,  19  February  2005  and

27 May 2005) the Solicitor-General had an obligation to act in accordance with the principles of natural justice.  It is alleged that those principles required the Solicitor- General to review the whole of the new information provided to her/him in support of the Berrymans’ requests with an open mind.  It is also alleged that the Solicitor- General was required to allow the Berrymans the opportunity to adduce additional material of a probative value.  It is alleged that the Solicitor-General breached these obligations.

[76]     Neither the written or oral submissions presented on behalf of the Berrymans dealt with this cause of action.   No evidence was pointed to in support of these allegations.  Counsel for the Solicitor-General nevertheless submitted why this cause of action was not made out on the evidence before me.  Although it is not necessary for me to consider these submissions because the cause of action has not been pursued at the hearing, I do so for completeness.

[77]     The allegation that the Solicitor-General did not consider the requests with an open mind is not made out.   All four decisions of the Solicitor-General set out in detail the reasons why the request was declined.  In the last of those decisions the Solicitor-General  specifically  noted  that  he  had  reviewed  each  of  the  earlier decisions and that he was considering the matter afresh (refer [72] above).  The mere fact that all four decisions declined the requests is not evidence that in any one of those decisions the requests were not considered with an open mind.   There is no other support for this allegation.

65  The position is similar to that in R v Coroner for Western District of East Sussex ex p Hamber, Roberts & Manners (1994) 158 JP 357.   In that case the families of those who had died in a deliberately lit fire in a residential building contended that the Coroner had failed to call a relevant witness (the ownership of the property was said to be linked to this witness) and had failed to ensure that there was a proper investigation into where responsibility lay for the absence of any means of escape from the fire. In dismissing the application to quash the inquest the Court said (at 373) that the Coroner’s role was not to establish how the absence of fire precautions came about – it was not “seized of a civil action alleging liability jointly and severally against the property owners and the local authority”.

66 See Kelly’s case at 427 and Coroner at Kaitaia at [41]. If the misfeasance claim against the Army proceeds to trial, that will be yet another occasion where these issues will be made public.

[157]   The factors at d) and e) were also relevant (as discussed above [130] and

[118]).

[158]   In my view these factors pointing against a new inquest were relevant and entitled to considerable weight in the Solicitor-General’s assessment.  The strongest factor pointing in favour of a new inquest was the concern that the Coroner had been misled by the Army’s submissions.   However, given that events have moved on, ordering a new inquest was no longer required to serve any of the purposes it is tasked with.  It cannot be said that it was “unreasonable” to find that a new inquest was not desirable in these circumstances.

[159]   In  response  to  questions  from  me  about  why  the  Berrymans  were  still pursuing  a  new  inquest  after  all  this  time  Dr Moodie  provided  supplementary submissions.  He referred in some detail to the loss and suffering experienced by the Berrymans  as  a  result  of  the  reputational  damage  to  them  from  the  Coroner’s findings when the Coroner was misled into finding that the bridge was properly designed and built.   The Berrymans also say that no lessons have been learnt and Mr Richards’ death is left “unexplained”.   (For reasons just stated I disagree with this last point.)   Dr Moodie submits that as matters stand “a new inquest is in the interests of justice”.  Dr Moodie goes on to say:

However, whether that is in the public, or Mr Richards’ family’s interest is another question given the elapse of 13 years since Mr Richards’ death, given the 21 years since the structure that caused his death was built, and given also that the cause of death by the collapse of the bridge was correct.

[160]   These submissions therefore acknowledge that there are competing reasons as to whether a new inquest is now desirable.  Dr Moodie goes on to say:

Mr and Mrs Berryman are amenable to resolution by the decision of this

Court if that was to include-

(a)  a decision that the cause of the failure of the bridge was due to a lack of maintenance by Mr and Mrs Berryman was invalid and is of no effect; and

(b) a finding by this Court that due to the time lapses of 13 and 21 years the holding of a new inquest is not in the public interest; and

(c)  a declaration by the Court that the evidence establishes that the bridge failed because it’s structural timbers (the stringers and transoms) were constructed of unsuitable untreated Oregon Timber  that  had  been  approved  and  used  by  the  Army Engineers, and in addition the laminated untreated Oregon transoms timbers suffered serious and considerable accelerated decay because the laminate had not been flashed to exclude the entry of water; and

(d) the failure of the Te Rata Bridge highlights the need for all structures open to be built in accordance with then existing building standards and codes; and

(e)  An order for the costs of and incidental to these proceedings in favour of the plaintiffs; and

(f)  A direction of the Court that the parties seek to resolve with the assistance of mediation, issues of damages/compensation in both these proceedings and in the proceedings CIV 2006-485-751.

[161]   As stated above, as to (a) there was evidence to support the Coroner’s finding that the Berrymans did not adequately maintain the bridge.   I agree that (b) is a powerful reason against the ordering of a new inquest.  The relevant parts of (c) and (d) that are established are already public knowledge (refer above [14] and [153]). The issue of costs and compensation are not relevant to whether the Solicitor- General’s decision to order a new inquest was unreasonable.

[162]   Dr Moodie’s explanation of the reasons why the Berrymans had wanted a new inquest and his proposal for resolution reaffirms my view that a new inquest is not in the interests of justice and that the Solicitor-General was correct to decline that request.   The correctness of the Solicitor-General’s decision is not the established test on judicial review.  However, because the Berrymans’ attempts to obtain a new

inquest have gone on for so long, I think this point should be made.67

Cause of action against the Army

67It might also be made for the reason stated in Berryman v Solicitor-General (No 2) [2006] NZAR

644 at [12] and [13]] - namely the importance of this Court ensuring that due process of the law is

followed. Counsel for the Solicitor-General submits that this point does not warrant any broader review than the established judicial review grounds.  I consider that the importance of the role this

Court has in ensuring that due process of law is followed more comfortably fits as a consideration under the judicial review of the Coroner’s decision (see [173] to [189] below) than under an expanded

form of judicial review of the Solicitor-General’s decision.

[163]   The cause of action alleged against the Army is unusual.  In summary it is alleged that:

a)        The Army had a regulatory power of decision under r 159 of the

Armed Forces Rules to disclose the Court of Inquiry record;

b)The  decision  not  to  disclose  the  Court  of  Inquiry  record  to  the Coroner and the giving, allowing or directing the giving, of wrongful or false information to the Coroner affected the reputations and interests of the Berrymans;

c)        That decision and conduct denied the Berrymans natural justice; and

d)The Berrymans were also denied natural justice by the Army not informing the Coroner that false information had been given at the inquest and in not making the information available.

[164]   The relief sought is declarations and orders about the conduct of the Army and its counsel.  The Berrymans also seek an order that the Coroner’s decision and the adverse comment regarding the plaintiffs were incorrect, invalid and of no effect.

[165]   For the Army the following submissions are made:

a)       There is no reviewable decision by the Army.  No request was made by the Berrymans under r 159 and the conduct of the Army and/or its counsel at the inquest is not a reviewable decision.  As to the latter, parties to proceedings do not owe other parties a duty to act in accordance with the rules of natural justice;

b)        The allegations made against the Army in this proceeding breach r

158 and, in any event, judicial review is not the appropriate forum in which to determine allegations of wrongful conduct;

c)       There  was  no  duty  to  disclose  the  Court  of  Inquiry  report  and evidence.  Pursuant to r 158 the evidence could not be used against the Army;

d)There was no wrongful conduct in the submissions made on behalf of the Army to the inquest;

e)       Relief should be declined in any event because the Berrymans knew of the Court of Inquiry and had the Works report but informed the Coroner of neither.

[166]   The evidence filed by the Army shows that the Berrymans made a request of the Army that Mr Butcher’s report be released under r 159 for the purposes of the OSH prosecution.  This request was declined although the Army provided them with the names of witnesses who gave evidence to the Court of Inquiry.   I was not referred  to  any  evidence  showing  whether  the  Berrymans  sought  to  engage Mr Butcher for the purposes of the OSH prosecution.

[167]   The evidence filed by the Army is that the Berrymans made no request of the Army for release of the Court of Inquiry report or the Butcher report for use at the Coroner’s inquest.   There was therefore no  reviewable  decision  under  r  159  in relation to any request made by the Berrymans.

[168]   For the Berrymans it was submitted that the reviewable “decision” was the decision that must have been made by the Army when preparing its evidence and submissions not to release the Court of Inquiry report and evidence to the Coroner. The affidavit evidence filed by the Army in this proceeding advises that the Court of Inquiry report and evidence were forwarded to the Army’s counsel in the course of preparing for the  Coroner’s  hearing.    The  submissions  prepared  by the  Army’s counsel, which did not refer to the evidence and the findings, were approved by the Army.  It must be inferred that a decision was made by those involved in preparing for the hearing that the Court of Inquiry findings and evidence would not be included in the evidence and submissions presented on behalf of the Army.

[169]   However,  that  decision  is  not  reviewable  as  against  the  Army  by  the Berrymans.  The Court of Inquiry record (report and evidence) cannot be disclosed to persons not subject to the Armed Forces Discipline Act 1971 without approval from a superior commander.   In my view any decision not to authorise its release would be reviewable only by the person for whom a decision concerning release was made.   In respect of the Berrymans, the Army’s decisions about the evidence and submissions to be presented at the Coroner’s hearing was conduct, rather than a

reviewable decision.68    It is the Coroner who made the “decision” that affected the

interests of the Berrymans and it is the Coroner’s decision in respect of which the

Berrymans had the right to natural justice.

[170]   I address the issue whether the Berrymans received natural justice at the Coroner’s hearing because of the Army’s conduct in relation to the cause of action against the Coroner ([173] to [189] below).

[171]   The Berrymans also allege that there were “decisions” to give wrong or false submissions at the inquest and/or in not rectifying the position when it was apparent that wrong or false submissions had been given.  As with the non-disclosure of the Court of Inquiry report and evidence these allegations concern conduct rather than a decision reviewable by the Berrymans.  The decision in respect of which they have a right to natural justice is the Coroner’s decision.   Whether that was denied by the Army’s conduct is considered under the final cause of action.

[172]   Accordingly, the matters raised in this cause of action against the Army are not reviewable.   It is not necessary for me to consider the remaining submissions made by the Army.

68  See Russell v Taxation Review Authority (2003) 21 NZTC 18,255 at [28] where a not dissimilar argument was made.  The plaintiff alleged that in litigation before the Taxation Review Authority the Commissioner’s conduct  in  not  calling  the  “correct”  witnesses  and  in  opposing  discovery  had interfered with the Authority’s ability to conduct its proceedings in accordance with the principles of natural  justice.     The  Court  of  Appeal  (upholding  the  High Court’s  decision)  held  that  the Commissioner’s “conduct” was not amenable to review.  The “decision” amenable to review was that of the Authority. Similarly, in Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 an appeal of findings of “disgraceful conduct” against a doctor was brought partly on the basis that the prosecuting body failed in what was said to be its duty to observe the principles of natural justice in the preparation and conduct of its case before the disciplinary tribunal. The High Court said (at 156), “[t]his cannot be correct. It is the decision-making body that must observe the principles of natural justice”.

Cause of action against the Coroner

[173]   For the Solicitor-General it is said that the review of his decision is limited to the established grounds of review.   It is then said that if the Solicitor-General’s decision is found to be properly made, there will be no other grounds on which to grant  relief  in  relation  to  the  application  for  judicial  review  of  the  Coroner’s decision.  This is said to be because the review of the Solicitor-General’s decision will take into account the wider inquiry made by the Solicitor-General under the statutory process and will necessarily encompass any procedural grounds that may form the basis of a judicial review of the Coroner’s decision.

[174]   Generally speaking it is correct that a request of the Solicitor-General is a broader inquiry and as such it may lead to an order for a new inquest when a review of the Coroner’s decision would not.   However, the Solicitor-General’s decision concerns the question of whether a new inquest is desirable and a review of his decision is therefore also concerned with that question.   In contrast, there are a broader range of remedies available to the High Court on a review of a Coroner’s inquiry.  In Jervis on Coroners it is said (at 19-41):

Where the court considers that relief should be given, the primary remedy is an order quashing the inquisition, with a further order that a fresh inquest be held.  But the flexibility of judicial review, as compared with the statutory remedy already considered, means that the court may grant relief that falls short of quashing the whole inquisition and ordering a new inquest.  Thus the courts have ordered inaccuracies in the inquisition (e.g. date of death of deceased) to be amended, or have deleted paragraph 4 (the conclusion as to death…) and remitted the inquisition to the coroner for him to enter such conclusion as he thinks appropriate in light of the court’s judgment, or have deleted paragraph 4 without remitting the matter to the coroner or ordering a new  inquest,  or  have  quashed  the  decision  not  to  hold  an  inquest  and remitted  the  question for  him to  decide again in  light  of the judgment. Everything depends on the precise circumstances of each case.   (footnotes excluded)

[175]   This means that, on an application for review of the Coroner’s decision, an error in the process may not warrant a new inquest but the Court can consider whether other relief should be granted.  It is this point that I go on to consider.

[176]   The cause of action against the Coroner can be summarised as follows:

a)       Evidence from the Army about the design and construction of the bridge  and  the  materials  used  was  central  to  the  purpose  of  the inquest;

b)The Coroner therefore had a duty to ensure that there was appropriate evidence about these issues before it;

c)       The Coroner failed in this duty because he proceeded on the basis of an unsworn statement of Major Armstrong and the submissions of the Army’s counsel;

d)In failing in this duty the Coroner acted without jurisdiction and unlawfully;

e)       This was prejudicial and unfair to the Berrymans who were, at the material times, unrepresented;

f)        “As a result of [the Coroner’s] unlawful actions the proceedings were corrupted   by   the   New Zealand   Army   making   false   or   wrong submissions,   and/or   submitting   as   evidence   a   statement   of Major Armstrong  containing  wrong  information  and/or  falsehoods, which  resulted  in  an  abuse  of  due  process  and/or  a  fraud  on  the process of the Court and a scandal to the administration of justice.”

[177]   The pleading then adds that the Coroner also acted unlawfully in having the doctor’s certificate evidence changed and then presented as an appendage to the evidence of a Police Constable.   No submissions were made in support of this pleading and I was not directed to any evidence in support of it either.  I do not know what it is about and since it has not been pursued I dismiss it.

[178]   I also dismiss the claim for relief on the basis that the Coroner acted without jurisdiction, unlawfully and with prejudice to the Berrymans on the basis that he did not seek sufficient evidence on the design and construction of the bridge and the materials used.   The Coroner was required to cause the police to serve notice on

every person whose conduct is likely to be called into question.69  The omission to serve notice on the Army was quickly rectified (see [40] above).

[179]   The Coroner was also required to hear evidence from any person who tenders evidence relevant to the matters the inquest is to establish70  and from any other person “whom the Coroner thinks it appropriate to examine”.71   There was evidence from those involved in the design and construction of the bridge.   In particular, Mr Vincent gave evidence and Major Armstrong submitted a statement.  It was not

for the Coroner to know that there was a gap in their evidence in that it did not discuss their knowledge of any deficiencies in the bridge as found by Mr Butcher. Mr Vincent was available for cross-examination.   Counsel for Mr Berryman asked Mr Vincent about his view of the sustainability of the materials at the time but he did not ask Mr Vincent whether he now had any concerns about the suitability of the Oregon timber and/or the bolted together/unflashed transoms.   No party sought to cross-examine Major Armstrong.

[180]   As to expert evidence the Coroner had evidence from the two people who investigated the bridge’s collapse for OSH.  Counsel for the Berrymans submits that these two witnesses were not suitably qualified in bridge design and construction, but the parties at the inquest, including the Berrymans, were free to tender whatever expert evidence they wished to tender.   The  Berrymans  knew  that  the  Coroner intended to make adverse comments in respect of maintenance.  They chose not to present the Works report or otherwise tender evidence that the problem lay in the design and construction of the bridge and/or the materials used.   In these circumstances there is no basis for the contention that the Coroner failed in his duty

to consider from whom it was appropriate to have evidence.72    Nor was there any

prejudice to the Berrymans in relation to the Coroner’s decisions as to whom to call evidence from and no relief would be appropriate on a judicial review of the Coroner’s decision on this basis.

69 Section 23(2)(c) of the Coroners Act.

70 Sections 26(1)(a) and 15(1)(a) of the Coroners Act.

71 Section 26(1)(b) of the Coroners Act.

72  The Army submits that there was evidence from which the Coroner could have enquired further about the design and construction of the bridge.  It was submitted that the Coroner must have decided

not  to  go  down  that  track  because  there  was  considerable evidence  that  the  maintenance  was inadequate.  If that is correct then the Coroner would not have made findings that the bridge was well

built.

[181]   The  allegation  set  out  at  [176](f)  is  difficult  to  follow.    The  Coroner’s decision did not allow wrong or false information to be given. Although the pleading does not say so precisely, by a combination of the fifth to eighth cause of actions73 it is apparent that the Berrymans’ concern is that the Coroner made a decision which affected their interests when he was misled by the Army into finding that the bridge was designed and constructed appropriately.  Their concern is that it is unfair and

therefore unjust that they were subject to adverse criticism based on a hearing that did not have all the relevant evidence before it leading to “unsafe” findings made by the Coroner.   That is, the essential allegation is that there was a miscarriage of justice.

[182]   Where alleged procedural unfairness is not the fault of the decision-maker courts have sometimes been prepared to quash decisions on the basis that a claimant for judicial review of the decision has not received procedural unfairness.  As is said in De Smith’s Judicial Review (6ed 2007) at 8-054:

It has been suggested, however, that these decisions should be viewed not as resting on principles of fairness, but as based upon the alternative principle that “fraud unravels everything”, or because the “process leading to conviction” has been distorted and vitiated as a result of a breach of duty owed to the court and to the defence by a prosecutor.   The principles of fairness,  in  contrast,  are  “concerned  solely  with  the  propriety  of  the procedure  adopted  by  the  decision-maker”.     But  this  approach,  it  is submitted, risks leaving uncorrected procedural errors which are the responsibility of the prosecution or respondent, but which cannot be characterised as fraud or breach of duty.   As Bingham L.J. has said, “If a procedural mishap occurs as a result of misunderstanding, confusion, failure of communication, or perhaps even inefficiency, and the result is to deny justice to the applicant, I should be very sorry to hold that the remedy of judicial review  was  not  available”.    Moreover,  recent  cases  have  found decisions of authorities to be unfair notwithstanding lack of fault by the decision-maker and where there has been blameless unfairness, not caused by unfairness or malpractice by any party, a conviction will be quashed in judicial review.  (footnotes excluded)

[183]  There are a number of examples of criminal convictions or immigration decisions being quashed (by certiorari) for procedural irregularities arising from the conduct of one party before the tribunal which does not amount to fraud or a breach

73  I consider that from the various pleadings the defendants were on notice as to the Berrymans’ complaints about the Coroner’s findings. The Army filed evidence and made submissions about those findings. The Coroner abides by the Court’s decision in any event.

of a duty to the Court but which cause unfairness to another party.74   A New Zealand example  is  Amosa  v  The  Secretary  of  Justice  &  Ors  HC  WN  CP  317/94  22

December 1997.  In that case deportation had been ordered in the absence of relevant matters that should have been put before the Tribunal by the appellant who was subject to the deportation order.  The Court said that the failure of the appellant to do this was “a matter of conjecture” (p 10).  However, without that evidence the Judge was “sufficiently concerned at the likelihood of a miscarriage of justice” (p 12) to examine whether he should go further than previous authorities had.  He concluded that he should, stating that “there has been in the handling of the relevant evidence a basic failure of the rules of natural justice and the Court should intervene” (p 12).

[184]   An example outside criminal convictions and immigration proceedings is R v Criminal Injuries Compensation Board ex p A [1999] 2 AC 330. In that case a woman (the claimant) had sought compensation pursuant to the Criminal Injuries Compensation Scheme for her personal injuries said to have been caused by a crime of violence. The police officer gave evidence about the findings of the doctor who had examined the claimant. The police officer’s summary of the doctor’s evidence was inaccurate and the doctor was not called to give evidence. The Compensation Board rejected the compensation claim. The claimant brought an application to quash the Board’s decision. Lord Slynn of Hadley said (at p 343):

It is not suggested that the officer gave her inaccurate evidence deliberately, let alone fraudulently.  Yet it is plain that in a matter of crucial importance, the Board was led to proceed on evidence which was wrong and they did not have the true facts.

[185]   The earlier cases based on fraud were noted, as was commentary to the effect that where this kind of error occurred the relevant ground of review was mistake of fact.  Lord Slynn of Hadley considered that the Board’s decision could be quashed on  this  basis  but  also  said  that  he  would  “prefer  to  decide  the  matter  on  the alternative basis argued, namely that what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness” (p 345).   He concluded (at p 347):

74  Haile v Immigration Appeal Tribunal [2001] EWCA CIV 663; R (on the application of Pownall and Rodber) v Flintshire Magistrates Court [2004] EWHC Admin 1289; and in New Zealand the possibility of review on this ground is discussed in Surinder v Minister of Immigration HC AK M1095/96 4 September 1996 and Gurusinghe v Medical Council of New Zealand.

I consider therefore, on the special facts of this case and in light of the importance of the role of the police in co-operating with the board in the obtaining of evidence, that there was unfairness in the failure to put the doctor’s evidence before the board and if necessary to grant an adjournment for that purpose.   I do not think it is possible to say here that justice was done or seen to be done.

[186]   It is the risk that justice was not done or was not seen to be done at the Coroner’s hearing that gives me concern.  The Army says that it has already been determined that the Butcher report and the Court of Inquiry’s findings are not admissible as evidence for any purpose.  I therefore put to one side my own review of this material that was necessary for the purposes of considering the review of the Solicitor-General’s decision and make no finding or comment about whether the evidence and submissions presented for the Army at the inquest were in some way “wrongful”.

[187]   However, my concern arises out of what is publically available material and public confidence issues arising from that.   The Butcher report and the Court of Inquiry findings are in the public domain.  A Judge of this Court has said that the Army made submissions to the Coroner that “the Army either knew, or ought to have known, were wrong”.75     The Solicitor-General, who had before him the relevant material, agreed with this conclusion.  He said that while r 158 of the Armed Forces Rules imposed restrictions on the material that was admissible at the inquest, that did not justify “the advancing of a submission which the Army, as an organisation,

should have known was inaccurate or misleading” (at p 14).   The Judge’s and the Solicitor-General’s comments were made in publicly available documents.   As MacKenzie J said on an application to strike out the statement of claim in this proceeding:76

The point of concern which I have identified is not as to outcome, it is as to process.  The steps which are appropriate when it becomes apparent that a party has made submissions which it knew, or ought to have known, were wrong are not to be determined solely by considering whether, if the matter were re-opened, a different outcome would be likely.  The maintenance of

75 Berryman v Solicitor-General HC WN CIV 2003-485-1081 11 May 2005 at [54]. For the Army it is said that this was unfair to counsel for the Army because the comment was made on a non-party costs application, and it has been carried forward in the Solicitor-General’s report and two subsequent judgments. However, that does not detract from the point that this view has been taken and that view, and the material on which it is based, is in the public domain.

76 Berryman v Solicitor-General (No. 2) [2006] NZAR 644 at [16].

public confidence in the operation of the courts and their processes is involved. That confidence may be weakened by a significant deficiency in the process even if, in the end, the outcome is appropriate.

[188]   In my view, in light of the conclusions previously reached by the High Court and the Solicitor-General and which are in the public domain, public confidence in the operation of the courts is weakened if the Coroner’s findings remain untouched. Justice must be seen to be done.  The findings of fact that are “unsafe” are those that relate to there being no issue with the design or construction of the bridge.  I have considered whether the findings concerning inadequate maintenance on the bridge are similarly unsafe.  In my view they are not.  There was evidence (from witnesses other than the Army) before the Coroner on which it was open to the Coroner to make those findings and the Army’s evidence and submissions do not affect that except to the extent that the Coroner said that the adverse comment must lie largely with the Berrymans.   The specific findings I find to be unsafe are those that are underlined at [54] to [57] above.  For completeness I set them out here (but to make sense of these it is necessary to refer back to the full text that I have set out above):

… is not what relates to 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.  …

… simply …

notwithstanding that the job was completed satisfactorily …

I quite accept there is no problem.  The bridge was well built.  There is no problem. …

But  I  emphasise  that  there  is  no  suggestion  here  that  the  standard  of construction of the bridge was in any way lacking. …

Regrettably the adverse comment of the Court must largely lie with Mr and

Mrs Berryman. …

according to proper practice and procedure in an appropriate manner …

The problem arose after the completion of the bridge and its handover by the

New Zealand Army. …

The essential lesson here to be learned is that …

[189]   I consider that these findings of fact, on which adverse comment was then based, should be formally quashed.  In quashing those findings I make no comment or finding on whether the Army was at fault in anyway in the design or construction of the bridge.  It is not necessary nor appropriate for me to determine those matters and it is not the basis on which I quash the findings.  In any event, I could not do that without first admitting as evidence in this cause of action the Butcher report and the Court of Inquiry findings and I decline to do so).

Result

[190] The causes of action concerning the Solicitor-General’s decisions declining to order a new inquest, or to apply to the High Court to order a new inquest, are dismissed. The cause of action against the Army seeking various orders and declarations is dismissed. The cause of action seeking review of the Coroner’s decision succeeds in part. There is to be no further inquest but the findings set out at [188] above are quashed.

Costs

[191]   My preliminary view is that costs should lie where they fall.  I encourage the parties to agree to this position.  (I also encourage the parties to reach a resolution of the civil proceeding if they have not already done so, so that this longstanding matter can be brought to a close.)  If, however, costs are sought (and their amount cannot be agreed) counsel may submit memoranda within 30 days of the date of this judgment and I will consider them.  For the avoidance of doubt these memoranda are not to traverse the evidence of what caused the bridge to collapse and whose responsibility that was.

Mallon J

Solicitors:

R Moodie, Moodie & Co, email: [email protected] (ph: 06 323 4625, fax: 06: 323 4623)

C Gwyn, Crown Law Office, email: [email protected] (ph: 04 494 5596, fax: [phone])

H Hancock, Crown Law Office, email: [email protected] (ph: 04 494 5596, fax: [phone])