Jarden v Earthquake Commission - [2015] NZHC 204

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-1332 [2015] NZHC 204

BETWEEN
D J AND J JARDEN

Plaintiffs

AND

THE EARTHQUAKE COMMISSION First Defendant

LUMLEY GENERAL INSURANCE (NZ) LIMITED

Second Defendant

Hearing: 18 February 2015

Counsel:

G D R Shand with A J D Ferguson for Plaintiffs
J Knight with N Bruce-Smith for First Defendant
A C Challis with K Rowe for Second Defendant

Judgment:

18 February 2015

JUDGMENT OF THE HON JUSTICE KÓS (Pre-trial applications)

[1] This judgment deals with three pre-trial issues. The case is rostered for trial before me starting next Monday, 22 February 2015. The three pre-trial issues concern the admissibility of evidence of two plaintiffs’ witnesses, an application that I recuse myself and an application by the defendants for further particular discovery.

[2] This morning a memorandum was filed indicating that the plaintiffs and EQC
have now settled. Leave to discontinue has been sought. I will deal with that in due course after hearing from counsel for Lumley.

JARDEN v THE EARTHQUAKE COMMISSION & ANOR [2015] NZHC 204 [18 February 2015]

Admissibility issues

[3] On 20 January 2015 the defendants gave notice under r 9.11(2) that there was an admissibility issue concerning two witness statements exchanged by the plaintiffs. Those are the statements of John Johnstone and Adrian Cowie.

John Johnstone

[4] Three objections are taken to Mr Johnstone’s evidence.

(a) First, that he is not an “expert” for the purposes of ss 4, 23 and 25 of

the Evidence Act 2006.

(b)That if Mr Johnstone is an expert, the Court is unlikely to obtain “substantial help” from his opinions in ascertaining facts of consequence to the determination of the proceeding. That is an objection based on s 25(1) of the Evidence Act 2006.

(c) That Mr Johnstone’s witness statement does not comply with the Code of Conduct set out sch 4 of the High Court Rules: fails to state his qualifications or experience, that the issues he is addressing are within his area of expertise, the facts and assumptions his opinions are based on, and details regarding material relied on to inform his opinion. The statement was thereby non-compliant with r 9.43, and by reason of that provision and s 26 of the Evidence Act 2006 cannot be led.

[5] I will deal at once with the third objection. Mr Johnstone has prepared a supplementary witness statement. In it he sets out his qualifications and experience, states that the issues addressed in his statement are within his areas of expertise and sets out a series of factual observations on which his opinions are based. It does not, however, meet cl 3(f) of the Code which requires the witness to “specify any literature or other material used or relied on in support of the opinions expressed”. Mr Johnstone merely says at [2] of his statement that he has “read documents about

the house”. That is not compliant. However, if that omission is corrected, the third objection will not stand.

[6] I turn now…

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 Jarden v Earthquake Commission

Details

AGLC: Jarden v Earthquake Commission [2015] NZHC 204
Case: [2015] NZHC 204
Decision Date: 18 February 2015

CaseChat Overview and Summary

The case of Jarden v Earthquake Commission and Lumley General Insurance (NZ) Limited was heard in the High Court of New Zealand. The plaintiffs, D J and J Jarden, sought damages from the Earthquake Commission and Lumley General Insurance in relation to damage to their residential building caused by earthquakes in 2010 and 2011. The court was required to address several pre-trial issues, including the admissibility of evidence from two expert witnesses, an application for the judge to recuse themselves, and an application for further discovery. The admissibility of the evidence from John Johnstone and Adrian Cowie, two expert witnesses for the plaintiffs, was challenged on the grounds that they did not meet the criteria for expert evidence under the Evidence Act 2006 and the High Court Rules. The court found that while Johnstone's expertise was limited to loss adjustment and claims investigation, he could testify regarding observable physical defects in the house. However, his conclusions regarding the specific damage to the house were deemed inadmissible. Cowie, a professional surveyor, was found to have expertise in earthquake damage evaluation, though certain sections of his evidence regarding insurance policy interpretation were excluded. The application for the judge to recuse themselves was dismissed, as the plaintiffs failed to provide sufficient grounds for concern over impartiality. Finally, the court addressed the defendants' application for further discovery, directing the plaintiffs' counsel to provide more detail on the documents in question and setting a timeline for further submissions and a potential review by an Associate Judge.

The court's reasoning and outcome were that certain aspects of the expert witnesses' evidence were inadmissible, while other parts were allowed to proceed to trial. The application for recusal was dismissed, and the court provided directions for further discovery, setting a timeline for additional submissions and a potential review by an Associate Judge. The case highlights the importance of expert evidence meeting specific criteria and the court's role in ensuring that evidence is both relevant and admissible.

Orders