Buchanan v Tasman District Council

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 49/2024
[2024] NZSC 103

BETWEEN	LOUISE BUCHANAN, KEITH MARSHALL AND ALISTAIR DONALD AS TRUSTEES OF THE BUCHANAN MARSHALL FAMILY TRUST Applicants
AND	TASMAN DISTRICT COUNCIL Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	A R Shaw and L C L Yong for Applicants C M Meechan KC and A C Harpur for Respondent
Judgment:	20 August 2024

JUDGMENT OF THE COURT

ALeave to appeal is granted (Tasman District Council v Louise Buchanan, Keith Marshall and Alistair Donald as Trustees of the Buchanan Marshall Family Trust [2024] NZCA 133).

BThe approved question is whether the Court of Appeal was correct to hold that there was no duty of care owed by the respondent to the appellants while carrying out and making statements in relation to pool inspections under the Fencing of Swimming Pools Act 1987.

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REASONS

The applicants seek reinstatement of the orders set out in [131(b)‑(d)] of the judgment of the High Court.[1] They have confirmed by memorandum of 29 July 2024 that they do not challenge the findings of the Court of Appeal in relation to declaratory relief.
[1]Buchanan v Tasman District Council [2023] NZHC 53 (Palmer J).
The respondent, by memorandum of 5 August 2024, confirmed that it does not intend to support the judgment on other grounds, including limitation grounds.[2]
[2]This means that, should the appeal be allowed, the High Court findings on limitation will stand. We note that, contrary to [4] of the respondent’s memorandum, the Court of Appeal only made obiter comments and did not make binding findings with regard to the longstop limitation period.

Solicitors:
C & F Legal Ltd, Nelson for Applicants
Rice Speir, Auckland for Respondent

CaseChat Overview and Summary

In Buchanan v Tasman District Council, the applicants, Louise Buchanan, Keith Marshall, and Alistair Donald as trustees of the Buchanan Marshall Family Trust, sought reinstatement of orders against the Tasman District Council, arguing that the Council owed a duty of care to them in relation to pool inspections conducted under the Fencing of Swimming Pools Act 1987. The Court of Appeal had previously dismissed the applicants' appeal, ruling that no duty of care was owed by the Council in this context. The Supreme Court was asked to determine whether the Court of Appeal's decision was correct.

The central legal issue before the court was whether the Court of Appeal was right in holding that the respondent did not owe a duty of care to the applicants in the context of pool inspections. The applicants argued that the Court of Appeal erred in dismissing their claim that the Council had a duty of care towards them, which they believed should have led to liability for damages. The Council, on the other hand, stood by the Court of Appeal's decision, which found no such duty of care existed.

The Supreme Court granted leave to appeal, accepting that there was a sufficient arguable point of law regarding the existence of a duty of care. The Court acknowledged that the Court of Appeal's decision on this point was significant and warranted further examination. The approved question for appeal was whether the Court of Appeal was correct in its determination that no duty of care was owed by the Council to the applicants. The Court observed that the findings on limitation by the High Court would stand if the appeal were allowed, as the Council did not intend to support the judgment on other grounds. The Supreme Court's decision thus sets the stage for a detailed examination of the duty of care issue in the context of pool inspections under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established