Grace v Orion New Zealand Limited
[2020] NZHC 2029
•10 August 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000454
[2020] NZHC 2029
BETWEEN C GRACE AND OTHERS
Plaintiffs
AND
ORION NEW ZEALAND LIMITED
First Defendant
LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP
Second Defendant
Hearing: 7 August 2020 Counsel:
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
Reasons:
10 August 2020
REASONS FOR RULING OF GENDALL J
Admissibility of Evidence – Kieran Grace
GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 2029 [10 August 2020]
[1] On 10 August 2020, Mr Hamilton, counsel for the second defendant, raised an objection to certain portions of the brief of evidence of Mr Kieran Grace.
[2] The objection related to all of paragraphs 25 and 27 of his brief together with the use of the word “commercial” in paragraph 30 of Mr Grace’s brief.
[3] Paragraphs 25 and 27, and paragraph 30 of Mr Grace’s brief of evidence read as follows:
25. Having witnessed the progression of the Marleys Hill fire on the afternoon of Wednesday 15th February 2017, and the email I subsequently received from the Adventure Park communications director confirming the chairlift was in operation during this period, I believe the chairs on the chairlift caught fire and started new fires below the chairlift line while it was left running. This conclusion is noted in the Marleys Hill Fire Investigation Report and the Port Hills Fires Operational Review released in November 2017.
…
27.I believe the careless operation of the chairlift by Adventure Park staff during the Marleys Hill fire started new fires that spread to our property destroying my home. This negligence has caused myself and my family, especially my mother, so much grief.
…
30. The fires have left me with an ongoing sense of disbelief and frustration. Disbelief at the commercial decision to run the chairlift with chairs fitted by the Adventure Park three days into an emergency, and frustration at the treatment I have received from tire [sic] agencies involved following the fires. My family lost everything that pre- existed the fires and we are still trying to recover from this awful event.
[4] So far as paragraphs 25 and 27 are concerned, Mr Hamilton indicates that his objection is that these contain inadmissible opinion evidence. As Mr Grace is the son of one of the plaintiffs and is not an expert in these matters, then in terms of s 23 of the Evidence Act, this opinion evidence is inadmissible.
[5]Section 23 of the Evidence Act sets out the opinion rule and states:
A statement of an opinion is not admissible in a proceeding except as provided by s 24 or s 25.
[6] I accept that s 25 has no application here as it relates to admissibility of evidence by an expert. Mr Grace, in these circumstances, is not regarded as an expert.
[7]Section 24 of the Evidence Act, however, states:
24 General admissibility of opinions
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact- finder to understand, what the witness saw, heard, or otherwise perceived.
[8] I emphasise at the outset that the matter before me is a civil proceeding and not a criminal trial. It involves a major fire on the Port Hills adjacent to Christchurch which covered some 1600ha approximately and damaged or destroyed a number of homes on the hills. As a result, a number of families, not to mention the overall community, has been significantly affected by these events. There is, therefore, considerable emotion from some related to these events and this has become apparent as a number of homeowners have endeavoured to provide evidence to date.
[9] With these matters in mind, I am of the view that a reasonably generous and permissible view of the evidence to be provided to me in this matter is required. In this case, Mr Grace was an eye witness of a fire threatening areas around the home of he, his brother and his mother where he had lived for some 20 years. This fire continued for some days and during this time, on Wednesday 15 February 2017, he became considerably concerned as what was said to be a “contained fire” on the Summit Road or Marleys Hill spread rapidly and approached his home.
[10] Here, I accept that comments which Mr Grace makes in paragraphs 25 and 27 in his evidence, to a point, are conclusionary and provide, to some extent, an opinion advanced by him. Notwithstanding this, perhaps only by a reasonably fine margin, I find that this opinion evidence, in terms of s 24, is reasonably considered as “necessary to enable Mr Grace to communicate or the Court to understand what Mr Grace saw, heard or otherwise perceived”.
[11] I accept that there is reasonable contrary argument to this conclusion but, in all the circumstances here, I am satisfied for these paragraphs 25 and 27 to remain as admissible evidence. The weight to be given to them, however, is another matter.
[12] So far as paragraph 30 is concerned, this talks about a “commercial” decision taken by the Adventure Park to continue running the chairlift.
[13] Mr Hamilton objects to this on the basis that he says the evidence to be provided for the Adventure Park is that the decision taken to continue running the chairlift was made for safety reasons and had nothing to do with commerce or commercial decisions on the part of the Park. Though this may be the case, once again, I am of the view that under all the circumstances here this paragraph 30 is admissible in its unchanged form. There does seem to be uncontested evidence that the Court will receive that the Adventure Park kept the lift running throughout the fires and Ms Newman in any email, which is before the Court, after the fire indicated that the Adventure Park kept the chairlift running to limit damage to the haul rope.
[14] Again, the probative value, if any, of this evidence advanced by Mr Grace is a matter for the Court, given that it is simply his opinion that it was a commercial decision taken by the Park to continue the lift running.
[15] The weight to be attributed to this evidence, again, is another matter. In all the circumstances here, however, I find that this paragraph 30 is admissible in its entirety.
[16] Decisions to this effect were provided today, 10 August 2020. The above sets out my reasons for those decisions.
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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
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