Ford v Ryan HC Wellington CIV-2005-485-845

[2007] NZHC 1874

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2005-485-845

BETWEEN  SIMON GERARD FORD AND LYNETTE DALE FORD

Plaintiffs

AND  ANDREW JAMES RYAN AND LEISA JANE RYAN

Defendants

Hearing:         18-20 June 2007

Appearances: A S McIntyre with M Francis for plaitniffs

B A Gibson for A J Ryan

C Matsis for L J Ryan

Ruling:           20 June 2007

ORAL RULING OF MACKENZIE J

[1]      As I recorded in my Minute issued at the commencement of the trial, the application for leave to add a cause of action in negligence was reserved for further consideration at the close of the plaintiffs’ case.   Now that that  stage has been reached, and before the defendants are called upon to open I consider that it  is desirable that a decision be given now and not further reserved so that all parties know the scope of the claim which is in issue.

[2]      The cause of action which it is sought to add relates to negligence in relation to  the  retaining  wall.  It  is  alleged  that  the  defendants  owed  the  plaintiffs  as subsequent owners a duty to construct the retaining wall using reasonable skill and care and that they were in breach of that duty in a number of respects.

[3]      Because of the late stage at which the amendment is sought, leave is required under Rule 187 of the High Court Rules.  The issue for me, in considering whether

FORD V  RYAN HC WN CIV-2005-485-845  20 June 2007

leave should be granted, is whether the amendment is necessary in order to do justice between the parties.

[4]      The statement of claim as it stands is based upon allegations of breaches of the  contract  of  sale  between  the  defendants  as  vendors  and  the  plaintiffs  as purchasers.  That contract was for sale of a completed dwelling and did not in any respects have the characteristics of a building contract.

[5]      The proposed claim for negligence is of a quite different nature.  That claim raises quite different issues.  Among those issues would be:

(a)      What  are the  proper  standards  of  design  and  workmanship  for  a retaining wall of this type?

(b)      Second, has the party responsible for design and workmanship fallen short of those proper standards in a way which demonstrates a failure to exercise reasonable skill and care? and

(c)      Third, is there a duty of care owed to the plaintiffs in respect of any such failure?

[6]      Those issues require consideration of matters which are quite distinct from those relevant  on the issue of whether or not there  has been a breach of the contract of sale.

[7]      The evidence called by the plaintiffs does not directly address the issues as I have outlined them for a claim in negligence.  The evidence of Dr Park goes to the state of the wall and what is necessary to fix it.  His evidence did not address issues of whether the deficiencies in the wall are the result of negligent design or workmanship  or  some  other  cause.    That  is  an  essential  issue  on  a  claim  of negligence.

[8]      Dr  Park referred  to  a  need  for  the  wall to  be  replaced  and  be  properly engineered.  That suggests a deficiency in design as opposed to workmanship.  The plaintiffs have adduced no evidence to show who was responsible for the design of

the wall and in particular have produced no evidence to show that either or both of the defendants were responsible for it.

[9]      To the extent that the claim in negligence may relate to workmanship as opposed to  design,  the  defendants  say  in  opposing  the  application  for  leave  to amend, that the work was carried out by Groundworks Limited.   The plaintiffs' evidence  does  not  directly  address  the  question  of  whether  the  defendants,  as opposed to Groundworks Limited, actually carried out the work.  Furthermore, there may well be a distinction between Mr Ryan and Mrs Ryan in relation to any claim which is based on defective workmanship, so far as their personal involvement is concerned.

[10]     The plaintiffs submit that even if the work were carried out by Groundworks, there might be vicarious liability on the part of the defendants.   A claim that  a defendant is liable for the negligence of a contractor in carrying out work pursuant to a contract with a defendant raises a further set of issues as to the nature of the contract and whether it relates to a delegable or non-delegable duty.  None of those issues have been addressed in any meaningful way in the evidence.

[11]     For those reasons, I am satisfied that it would be unfair to the defendants to require them to deal with issues which are at best defined in general rather that particular terms on such short notice as is involved here.  The amended statement of claim was filed on 8 June 2007.

[12]     For these reasons, leave to add the cause of action to paragraphs 15 to 19 of the third amended statement of claim is refused.  There are amendments in the earlier paragraphs of that statement of claim, in particular paragraphs 9A and 11A.  Those amendments are of a type where leave at this stage could properly be granted, and those amendments are accordingly allowed.

“A D MacKenzie J”

Solicitors

B P Ranford, Wellington, for plaintiffs
B A Gibson, Wellington, for A J Ryan

Gault Mitchell, Wellington, for L J Ryan