Grace v Orion New Zealand Limited

[2020] NZHC 2041

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000454

[2020] NZHC 2041

BETWEEN

C GRACE AND OTHERS

Plaintiffs

AND

ORION NEW ZEALAND LIMITED

First Defendant

LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP

Second Defendant

Hearing:

10 August 2020

Appearances:

C M Stevens and B R D Cuff, S K Battersby and C S M Henley for Plaintiffs

T C Weston QC and M J Dennett, R J H Scott and S M Crosbie for First Defendant

G N Gallaway, W J Hamilton and L A Merrick for Second Defendant

Ruling:

10 August 2020

ORAL RULING OF GENDALL J

Admissibility issues – Roger Beattie

GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 2041 [10 August 2020]

[1]    I will give my ruling now with respect to Mr Beattie’s brief of evidence, paragraphs 9, 21 and 26 in part objected to by Mr Weston for the first defendant.

[2]    Paragraph 9 – the bulk of this paragraph, in my view, is admissible. The words: “The wind was spreading the fire up the hill and along the road. What struck me was that there was no heat from the fire unless you were closer than two metres from the fire”, that is observation and matters of fact from Mr Beattie and is admissible.

[3]    Also, as to the words: “The wind was blowing the heat up the hill parallel to the ground, not vertically into the air”, in my view, that is observation again on matters of fact. It is admissible.

[4]    However, I turn to the following words, “The way the wind was blowing meant you could have sat at the top of the pole and not felt any heat at all”. Trying to envisage that situation is rather difficult. Notwithstanding that, in my view, it is inadmissible, and I will give further reasons for that later. [Considering that issue again, I am satisfied it is opinion evidence, from a non-expert, adds little here and is, therefore, inadmissible.]

[5]    Paragraph 21 – in my view, that entire paragraph is admissible. Again, in my view, it is observation evidence in the main. It talks principally of the speed at which Mr Beattie considered the pole was being replaced and, first, the fact that stays which were not in earlier poles were used but, secondly, that the same anchor, notwithstanding the fire, was being employed.

[6]    The sentence “The lines were visibly tighter afterwards” again, given the explanation from Mr Beattie as to his business experience regarding electric fencing, lines and the like, in my view, is admissible. The last portion of this is generally accepted by Mr Weston, in any event.

[7]    Further, the sentence, “They also put in a new pole stay across the road to stay the line going up the hill. This pole had no stay beforehand,” is unobjectionable.

[8]    The last objection is to paragraph 26 of Mr Beattie’s brief. It talks of a barbeque which the Beattie family commendably organised for the residents of the locality, given the post-fire trauma and circumstances experienced by them all. Notwithstanding that, however, for present  purposes parts of paragraph 26 which  Mr Weston says are offending, in my view, are inadmissible. They are hearsay. They add little to matters before me and certainly expert evidence as to the possible cause of the Early Valley Road fire will be a matter of importance before me. That portion of paragraph 26 to which Mr Weston objects is inadmissible.

...................................................

Gendall J

Solicitors:

DLA Piper New Zealand, Auckland Kennedys, Auckland

Chapman Tripp, Christchurch

Copy to

Craig Stevens Barrister, Wellington

Thomas Weston QC, Barrister, Tai Tapu