Bligh v Earthquake Commission - [2018] NZHC 2102

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2013-409-001333 [2018] NZHC 2102

BETWEEN
DEREK RICKY BLIGH

Plaintiff

AND

EARTHQUAKE COMMISSION

First Defendant

AND

IAG NEW ZEALAND LIMITED

Second Defendant

Hearing: 19 February – 6 March 2018

Appearances:

R J Lynn and E J Flaszynski for the Plaintiff

N S Wood and J W Upson for the First Defendant
P M Smith and S J Connolly for the Second Defendant

Judgment:

16 August 2018

JUDGMENT OF NATION J

BLIGH v EARTHQUAKE COMMISSION & IAG [2018] NZHC 2102 [16 August 2018]

Introduction  1
The legal context  13
The IAG policy  13
Earthquake Commission cover  16
Burden of proof  31
Assessing credibility  39
Mr Bligh  51
Mr Jerome Larason  90
Mr Peter de Boer  97
Ms Dawn Clark  100
Mr Peter Smith and Mr Mark Kearney  106
Mr Malcolm Clark  139
The claimed damage as particularised  150
New cracking and exacerbation of existing cracking generally to all brick walls

151

Exacerbation to the vertical cracking on the first floor brickwork walls            151
Horizontal displacement of external brick at north western corner  151
Dislodgement of brick on south western outer face of the first floor                   151
Separation of the outer bricks from the inner bricks including at the edges of the brick work around window openings on the external walls  151
Loosening of window frames with relation to the surrounding brickwork           151
(i)The south wall  184
(ii)The east wall  188
(iii)The west wall  192
(iv)The north wall  193
(v)Loose bricks on top of the walls  199

Cracking of external plaster surface  220
Cracking to external plaster at windows on the southern face of the first floor 220 Minor horizontal cracking to the ground floor  228
Exacerbation of the cracking and minor spalling below the window on the south western inner face of the external wall of the ground floor  228
Exacerbation of the cracking and minor spalling above the window in the south western corner.  228
Damage to the reinforced concrete columns and lintel above the new front door

240

Horizontal cracking through sections of the new bond beam  244
Minor cracking between bond beam and existing walls  244
Cracking to the foundation slab  247
Possible formation of voids under the foundation slab  247
Separation of sheet joins and damage to finish around doors and windows       264
Cracking in internal plaster  266
Cracking in the corners of internal walls on the first floor  268
Separation and damage to the finish of the first floor tongue and groove walls 268 Damage to the plaster in the tongue and groove section of the first floor ceiling

268

Separation of skirting boards and hallway from walls on the first floor             268
Tongue and groove boards in first floor hallway have separated leaving gaps and creating draughts  268
Cosmetic damage to the house including patches of paint coming adrift in master bedroom.  268
Loose fixings in the roof  298
Leaks to the roof above…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2102
Decision Date: 16 August 2018

CaseChat Overview and Summary

The plaintiff, Mr Bligh, sought compensation from the defendants, EQC and IAG, for earthquake damage to his property. EQC and IAG denied liability, claiming that there was no material damage caused by the earthquake. The High Court had to determine whether Mr Bligh proved on the balance of probabilities that the damage to his property was caused by the earthquake and that the damage was material. The court found that Mr Bligh failed to prove his case because his evidence was not credible and the evidence of EQC and IAG's expert witnesses was more reliable. Mr Bligh's health issues and memory problems affected his ability to give reliable evidence about the condition of his property before and after the earthquake. Furthermore, there were inconsistencies and inaccuracies in his evidence. The court also found that the damage to Mr Bligh's property was either pre-existing or not material. The court dismissed Mr Bligh's claim.

Orders