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Buchanan v Tasman District Council

Buchanan v Tasman District Council

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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-4

[2023] NZHC 53

IN THE MATTER OF a claim in negligence, breach of statutory duty and negligent misstatement

BETWEEN

LOUISE ELIZABETH BUCHANAN, KEITH MARSHALL AND ALISTAIR

LESLIE DONALD as Trustees of the Buchanan Marshall Family Trust

Plaintiffs

AND

TASMAN DISTRICT COUNCIL

Defendant

Hearing:
25 – 27 July 2022 with supplementary submissions on 19 and 23

December 2022

Appearances:

A R Shaw and C R Osborne for the Plaintiffs

S C Waalkens and A C Harpur for the Defendant

Judgment:

1 February 2023

JUDGMENT OF PALMER J

Solicitors
C & F Legal Ltd, Nelson Jackson Russell, Auckland Rice Speir, Auckland

BUCHANAN AND MARSHALL v TASMAN DISTRICT COUNCIL [2023] NZHC 53 [1 February 2023]

Contents

Summary.............................................................................................................. [1]

What happened?.................................................................................................. [3]

The property and pool [3]
Consent, Code Compliance Certificate and two inspections [4]

The third inspection and non-compliance [8]

Further effects [16]

The proceedings [18]

Issues................................................................................................................... [22]

Issue 1: Duty and breach in negligence............................................................ [23]
The Fencing of Swimming Pools Act 1987 context  [27]
Was it reasonably foreseeable that a negligent pool inspection would cause
loss?  [32]
Was the relationship sufficiently proximate?  [36] Is it fair, just and reasonable to impose the duty on the Council?  [54] Did the Council breach the duty?  [59]

Issue 2: Negligent misstatement........................................................................ [61]

Issue 3: Breach of statutory duty..................................................................... [65]

Law of statutory breach of duty [65]

Submissions [68]

Was there a statutory duty enforceable by private action? [71]

Issue 4: Time bars.............................................................................................. [73]

Does the Building Act long stop bar the claims? [74]

Do the Limitation Acts bar the claim? [89]
Effect of Beca Carter Hollings v Wellington City Council [100]

Issue 5: Damage, loss and relief...................................................................... [101]

The relief sought [101]

Loss of an opportunity and remoteness of damage [102]
The evidence regarding loss of value [114]

Special damages [116]

General damages [123]

Declaration [125]

Issue 6: Contributory negligence.................................................................... [127]

Result................................................................................................................ [131]

Summary

[1] In 2006, the Tasman District Council (the Council) issued a Code Compliance Certificate (CCC) for a high-end award-winning home, centred on a swimming pool, on Eighty Eight Valley Road, Wakefield. In 2008, Ms Louise Buchanan and Mr Keith Marshall bought the property. In 2009, and again in 2012, the Council inspected the pool and confirmed its compliance with the Fencing of Swimming Pools Act 1987 (FOSPA). In 2019, when Ms Buchanan and Mr Marshall put the property on the market, the Council inspected the pool again and said its fencing did not comply. It is agreed it had never complied. In proceedings issued in 2020, Ms Buchanan and Mr Marshall sue the Council for negligence, negligent misstatement, and breach of a statutory duty. They seek damages and a declaration. They are unable to recover for the Council’s admitted breach of duty in relation to the building consent and CCC because that claim is time-barred. They sue the Council for the pool inspections in 2009 and 2012, causing them to lose the opportunity…

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: [2023] NZHC 53
Decision Date: 1 February 2023

CaseChat Overview and Summary

The case of Buchanan v Tasman District Council involved a claim in negligence, breach of statutory duty, and negligent misstatement against the Tasman District Council. The plaintiffs, Louise Buchanan and Keith Marshall, purchased a property in 2008, relying on a Code Compliance Certificate (CCC) issued by the Council in 2006. The Council had inspected the pool in 2009 and 2012 and advised the plaintiffs that the pool and fence complied with the law. In 2019, the Council inspected the pool again and found it non-compliant. The plaintiffs sued the Council for negligence, negligent misstatement, and breach of statutory duty under the Fencing of Swimming Pools Act 1987 (FOSPA).

The Court held that the Council owed a duty of care to the plaintiffs to inspect the pool in 2009 and 2012 with reasonable skill and care. The Council breached this duty, causing the plaintiffs to lose the opportunity to sue for the negligent issue of the CCC. The Court found the Council liable for negligent misstatements and awarded damages of approximately $270,000, including $25,000 in general damages, plus interest and costs. A declaration was made about the Council's negligence. The Court held that the Council did not owe an additional statutory duty to the plaintiffs under s 10 of the FOSPA, for which they could sue in tort. The relief for the 2009 pool inspection was barred by the long stop time bar in s 393 of the Building Act 2004, but the claim based on the 2012 pool inspection was not time-barred by the Building Act or the Limitation Act 2010. There was no contributory negligence.

Orders