Fava v Quayside Marine Management & Construction Ltd

[2015] NZHC 1702

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-090-1626 [2015] NZHC 1702

BETWEEN

HERMAN ALFRED FAVA

First Plaintiff

EDWIN DAVID WYLIE, CHRISTINA MARY WYLIE and CHRISTOPHER LANE MCPHAIL, as Trustees of the ED AND CM WYLIE FAMILY TRUST Second Plaintiff

JEREMY ADAM SCANTLEBURY Third Plaintiff

METIN YILDIZ Fourth Plaintiff

ANDREW ROBERTSON and ROCCO PITTO

Fifth Plaintiff

THOMAS MALCOLM MCALL and

RAEWYN ANNE MCALL Sixth Plaintiff

AND

QUAYSIDE MARINE MANAGEMENT
& CONSTRUCTION LTD

Defendant  (see over)

Hearing:	23 July 2015
Counsel:	P R Rzepecky and A P Colgan for Plaintiffs/Respondents P Barratt for Defendant/Applicant
Judgment:	23 July 2015

JUDGMENT OF BREWER J

Solicitors:        McElroys (Auckland) for Plaintiffs/Respondents

Jones Fee (Auckland) for Defendant/Applicant

FAVA & ORS v QUAYSIDE MARINE MANAGEMENT & CONSTRUCTION LTD [2015] NZHC 1702 [23 July 2015]

CIV-2013-090-1628

BETWEEN  MICHAEL JOHN TODD First Plaintiff

GULF CHARTERS LTD Second Plaintiff

ANTHONY WAYNE PETERSON Third Plaintiff

ROBERT HEYWOOD Fourth Plaintiff

AND  QUAYSIDE MARINE MANAGEMENT

& CONSTRUCTION LTD Defendant

CIV-2013-090-1648

BETWEEN  ROBERT A GREEN as Trustee of GREEN FAMILY TRUST

First Plaintiff

AZZURO HOLDINGS LTD Second Plaintiff

BRUCE RONALD SKELTON Third Plaintiff

DEAN BARKER, AMANDA BARKER and WAYNE ANDERSON as trustees of the DEAN BARKER TRUST

Fourth Plaintiff

MANESSA YACHT LTD Fifth Plaintiff

KEVIN JOHN LAURENCE and DAVID BRUCE LUGTON

Sixth Plaintiff

JOHN ROBERT BALGARNIE Seventh Plaintiff

AND  QUAYSIDE MARINE MANAGEMENT

& CONSTRUCTION LTD Defendant

[1]      The plaintiffs sue the defendant for damage to their boats.  They plead that the defendant negligently carried out pile driving operations near their boats causing damage to paintwork through metallic particle contamination.  The trial is scheduled to commence on 31 August 2015.

[2]      The  defendant  has  filed  an  interlocutory  application  for  a  more  explicit statement of claim.   The application relates to paragraphs 15(1) and 15(3) of the second amended statement of claim.   These particularise, broadly, aspects of the allegation of negligence.  Paragraph 15(1) is to the effect that the defendant operated the pile driving machinery whilst it was in a corroded condition and that this “would be likely to create or release corrosive metal particles”.  Paragraph 15(3) is similar but focuses on an allegation of negligence through “causing the release” of corrosive metal particles.

[3]      In relation to paragraph 15(1), the defendant seeks particulars identifying:

… the piece(s) of machinery and equipment which were in such a corroded condition as to produce the pleaded effect.

[4]      In relation to paragraph 15(3), the particulars sought are to identify:

…  how  the  defendant  is  alleged  to  have  released  the  corrosive  metal particles of the type described in paragraph 7.

…  how  the  defendant  is  alleged  to  have  disturbed  the  corrosive  metal particles of the type described in paragraph 7.

… how the defendant is alleged to have allowed the release of the corrosive metal particles of the type described in paragraph 7.

[5]      The plaintiffs oppose the application for further particulars on the basis that the information sought is within the knowledge of the defendant and not within the knowledge of the plaintiffs.

[6]      It is trite that a statement of claim must set out the general nature of the plaintiffs’ claim and give sufficient particulars of the circumstances to fairly inform the Court and the defendant of the causes of action; the point being that a defendant needs to know the allegations to which it will be required to respond and in sufficient detail that it will not be taken by surprise.

[7]      Ms Barratt, this morning, in detailed and thoughtful submissions, has referred me to a number of cases which set out this principle, often with the result that the Court required further particulars to be given.  Ms Barratt’s principal concern is that the particulars pleaded are so general that she does not know what it is that the defendant is said to have done to cause the pleaded loss.  Ms Barratt submits that it would be unfair to the defendant for the trial to proceed on the current level of general pleading.  As Ms Barratt put it, anything could come out in the evidence and even though unheralded would fit within the scheme of the pleading.

[8]      However, it is equally trite that a plaintiff cannot be expected to provide particulars of a claim for negligence where the details of the events giving rise to the claim are within the knowledge of the defendant and not the plaintiff.

[9]      In this case, the plaintiffs plead:

Metal particles

7.In circumstances uniquely within the knowledge of the defendant, corrosive, iron-based metal particles became airborne from the defendant’s barge during the works (particles).

Particulars

The most likely causes of the airborne particles were: (1)  The pile driving activity; and/or

(2)      Some incidental activity on board or alongside the barge;

and/or

(3)      Debris already present on the defendant’s barge.

8.The airborne particles were carried by the breeze from the barge and deposited on a number of vessels moored in various berths on T Pier and U Pier, including all the vessels described in paragraph 1 above, as well as on the pier infrastructure itself, located approximately northeast of the locations of the works described in paragraph 5 above.

[10]     The statement of claim goes on to allege:

Damage

10.      The  deposits  of  metal  particles  caused  damage  to  the  plaintiffs’

vessels (damage) as follows:

(1)       Metal particles settled on and/or became embedded in the paintwork and other surfaces of the vessels;

(2)       The  commencement  or  continuation  of  corrosion  of  the metal particles caused staining to the paintwork and other surfaces of the vessels.

11.      Depending on the existing vessel paintwork and surfaces, and the concentration of metal particle deposits, the vessels required repairs consisting of chemical washing, re-polishing, repainting, or a combination of the foregoing (repairs). Details of the repairs are set out in Schedule A.

[11]     This is not a complicated case. To succeed, the plaintiffs have to prove on the balance of probabilities the factual basis for the claim and then bring it within the tort of negligence.  In other words, the plaintiffs will have to prove that the actions of the defendant caused metal particles to settle on their boats and that these particles caused  the damage  pleaded.    Further,  the  plaintiffs will  have to  prove  that  the circumstances in which the metal particles came to settle on their boats amount to negligence on the part of the defendant.  The onus is on the plaintiffs.  If they cannot prove these things then their case will fail.

[12]     The plaintiffs make it clear that they rely on the Court accepting inferences which they say can be drawn from the fact (if proven) of the damage and the circumstances  behind  the  damage.    The  plaintiffs  will  not  be  calling  evidence, because  they  do  not  have  any,  of  the  matters  on  which  the  defendant  seeks particulars.    The  defendant  knows  that  because  it  has  the  plaintiffs’  briefs  of evidence.

[13]     The  application  is  declined.    The  plaintiffs  are  entitled  to  costs  on  the application and I award them on a 2B basis.

Brewer J