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Goodier v Earthquake Commission

Goodier v Earthquake Commission

Case [2019] NZHC 2176 2 September 2019

Contract Formation

Natural Disaster Damage

Burden of Proof

Natural Disaster

Physical Loss or Damage

Insurance Law

Environmental Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2016-483-16

[2019] NZHC 2176

BETWEEN
MARK ALBERT GOODIER AND NICHOLA JANE GOODIER

AS TRUSTEES OF THE GOODIER FAMILY TRUST
Plaintiffs

AND

THE EARTHQUAKE COMMISSION

First Defendant

AND

IAG NEW ZEALAND LIMITED

Second Defendant

Hearing:
17 – 28 September 2018

8 – 10 October 2018
12 October 2018
16 October 2018
7 February 2019, 27 February 2019 and 14 March 2019 (further submissions received)

Appearances:

G D R Shand and N T P Lala for the Plaintiff

B A Scott and J Y Moran for the First Defendant
R W Raymond QC and S K Swinerd for the Second Defendant

Judgment:

2 September 2019

JUDGMENT OF CULL J

TABLE OF CONTENTS

Overview 1

PART I – THE CLAIM, THE CONTEXT AND THE ISSUES 9

Background facts 9
The house and land 9

EQC’s response to claim 16

IAG’s response 20

The insurance context 25

The EQC Act 1993 28

Natural disaster definitions 35

EQC 39

GOODIER v THE EARTHQUAKE COMMISSION [2019] NZHC 2176 [2 September 2019]

IAG’s insurance policy 42

The Goodiers’ claims 49

The first statement of claim 49

Revision of remedial costings 54

The amended statement of claim 56

Issues 60

PART II – THE LEGAL ISSUES: CAUSATION 62

Natural disaster damage 62
The legal contest between the parties: causation 68

Burden of proof 79

PART III – THE FACTUAL CONTEST 85

The flaw alleged by the defendants: the landslip “mechanism” 92

The geotechnical evidence 95

The “vibration” theory 101

The lay witnesses’ evidence 106

The Goodiers’ evidence 107

The evidence of friends and clients 124

The experts’ evidence 132

The house 137

(a)Sloping floors in the first-storey lounge  143
(b)Hearth cracking  149
(c)Internal wall linings of the house  151
(d)Roof leaks  155
(e)Doors in the downstairs flat and lounge  157
(f)The firebox  159

The garage  161
(a)Matters of agreement on the garage claim  161
(b)Points of disagreement on the garage claim  165
(c)EQC’s opening position  174
(d)Mr Hunt’s site revisit  178
(e)The defendants’ site revisit  188

Summary of positions 198
PART IV – RESOLUTION OF THE FACTUAL AND LEGAL ISSUES 202

Credibility of witnesses 205

The Goodiers’ challenge to the impartiality of EQC’s experts 206

The Goodiers’ challenge to the Tonkin & Taylor evidence 213

The defendants’ challenge to the Goodiers’ lay witnesses 219

The defendants’ challenge to the Goodiers’ expert witnesses 223

Causation 225

The mechanism 230

Causation by “natural landslips” 239

Damage to the house 250

The sloping floors and pavers 263

The rotation or bending of the lounge bay window corner post  270
Roof leaks  273
Cracking to internal plasterboard linings  275
Jamming doors  279
Cracks in the firebox and movement to the timber cross bracing beneath and behind the firebox 281
Conclusions on damage to the house  283

Damage to the garage 284

Lateral movement of the garage slab and wall relative to house 297

The garage floor and foundation subsiding 300

Cracking in the garage concrete…

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.

Continue reading Goodier v Earthquake Commission

Details

AGLC: Goodier v Earthquake Commission [2019] NZHC 2176
Case: [2019] NZHC 2176
Decision Date: 2 September 2019

CaseChat Overview and Summary

The case involves an insurance claim by the Goodiers to recover loss to their house and property following a landslip caused by a heavy rainfall event in Whanganui, New Zealand. The Goodiers seek compensation from the Earthquake Commission (EQC) under the Earthquake Commission Act 1993 and from IAG Insurance under a policy of insurance. EQC has already paid the Goodiers $136,790.21, while IAG has paid $41,776.05 for the repair of the driveway. The Goodiers argue that further payments are required to remediate their property and claim general damages. Both EQC and IAG contest any further liability.

The court held that the claimed damage to the Goodiers' property was not caused by the landslip. The court found that there was no causal mechanism linking the landslip with the damage to the house and garage. The evidence demonstrated that the house was built on undisturbed stiff/dense material, unaffected by the landslip, while the garage was supported by the thickened perimeter foundation, not the loose-fill soils that slipped away during the landslip. As a result, there was no further liability for EQC or IAG beyond what they had already paid. The s 124 Notice under the Building Act 2004 had no impact on EQC and IAG’s liability or obligations.

The court concluded that the damage to the Goodiers' property was not "natural disaster damage" as defined under the EQC Act. Therefore, the Goodiers were not entitled to further compensation or general damages from EQC or IAG.

Orders