Kristin School Charitable Trust v Norcross

[2013] NZHC 2038

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-859 [2013] NZHC 2038

BETWEEN  KRISTIN SCHOOL CHARITABLE TRUST

Plaintiff

ANDBLAKE CAMERON NORCROSS First Defendant

LEVI JORDAN WILSON Second Defendant

JAMES EVAN RICH Third Defendant

Hearing:                   26 July 2013

Appearances:           Ms Lucas for Plaintiff

Mr Foley for First Defendant
No appearance for Second Defendant
Mr S Wimsett for Third Defendant

Judgment:                13 August 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

13.08.13 at 10 a.m, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

KRISTIN SCHOOL CHARITABLE TRUST v NORCROSS [2013] NZHC 2038 [13 August 2013]

[1]      The plaintiff has brought a summary judgment application against the three defendants seeking damages of approximately $243,000, arising out of what the plaintiff alleges was the part the defendants played in the destruction by fire of classroom buildings and various items of personal property on Sunday 11 October

2009.    The first  and  third defendants  have taken  steps  to  oppose the summary judgment application but the second defendant has not.

[2]      The background is as follows.  The three defendants had been pupils of the school where the fire damage occurred.   The plaintiff in its statement of claim alleges that the defendants came on to the property approximately 2.30 a.m. on the night in question.  I will refer in a little more detail subsequently to what part each defendant is alleged to have played in the events of the evening.

[3]      Detective Reid who attended the scene prepared a report which the plaintiff produced in evidence.  The report is not easy to follow but it appears to suggest that the origin of the fire was in two or more wheelie bins which were located outside the building.   His view was apparently the same as that of a fire safety officer, Gary Beer whom he meet at the scene and whose view it was that the wheelie bins that had been located near the building had been set fire to and that the bins had melted which, Mr Beer considered, provided inflammatory material that was equivalent to

10 litres of petrol in the case of each bin.   The burning melted plastic, Mr Beer considered, flowed under the wall and onto the ground assisting in the spread of the fire.

[4]      The first and third defendants were disposed to argue that the cause of the fire was unclear but in my view, having regard to the standard of proof required in civil proceedings and the verification of the statement of the claim which has been filed, it is reasonably clear that combustible material inside the wheelie bins was set fire to, the wheelie bins caught fire and that started the fire of the buildings.

[5]      The three defendants were interviewed by the Police.  The broad account that emerges  is  that  one  of  the  defendants,  or  one  of  the  other  two  persons  who apparently came with them to the school grounds that night, had discovered a soft toy lying on the ground in the vicinity of the school.  The toy was set fire to.  The

burning toy was placed in one of the wheelie bins which caused other flammable material which was probably paper to catch fire which resulted in the bin burning.

[6]      The essential issue that arises is whether the plaintiff has been able to prove sufficient facts to establish a cause of action against either or both of the first and third defendants.

[7]      The position of the second defendant who did not take any steps to defend the proceedings is different and I will consider it separately after I have dealt with the case against the first and third defendants.

The position of the first and third defendants

[8]      The first and third defendants denied that they had set fire to the buildings or contributed to other parties’ actions in setting fire to them in the affidavits that they filed.  In his evidence with the Police, Mr Norcross who was 17 years old at the time, did not say anything which amounted to evidence that he contributed to the cause of the fire.  He said he did not see the burning toy being placed in the wheelie bin.  He did not see anyone lighting the rubbish bins on fire he said.  He did admit that he heard someone say “there is a rubbish bin on fire”.  He said that someone mentioned something about starting a fire along the lines of “let’s burn down the school” as a joke and he said it may have been him who said that.

[9]      Mr Wilson, the second defendant, gave a statement that broadly exculpated himself but implicated one of the other defendants.  I was not prepared to accept that the out of Court hearsay statement which Mr Wilson made in his Police interview about the other defendant starting the fire should be or was admissible evidence which the plaintiff could rely upon.  He admitted that he had put part of the toy in the bin and that it was alight.

[10]     Mr Rich in his Police interview implicated another one of the defendants as the person who threw the lighted bear into the wheelie bin.  He said that there was smoke coming from the bin, and he looked inside it but saw that the fires had died down.   He said that he was in the school grounds between midnight and 2 a.m. arriving home at approximately 2 a.m.

[11]     To summarise to this point, neither of the defendants admitted to the Police that they had caused the fire.   Neither admitted to being part of any agreement to take concerted action to set the fire.  Both the first and third defendant have given affidavits affirmatively denying that they set fire to the buildings.

[12]     However, the case for the plaintiff also included evidence that the three defendants had been admitted to the Police diversion scheme.  In the case of the first and second defendants, they were granted diversion under the Police adult diversion scheme.  There is a separate Youth Court scheme and the defendants in that Court can enter into a “Youth Aid section contract with young person and family” in order to obtain diversion.  The third defendant took advantage of that scheme.  There is further discussion below in this judgment about what the effect of entering into those arrangements is but it is first necessary to say something about what is known about the circumstances of the diversions.   At least in the case of the first and second defendant, it is established that charges were brought against them which were later withdrawn as a result of their completing the requirements of the diversion scheme. The form of agreement was approximately the same in each case of the first and second defendants and contained the following statement:

As a voluntary alternative to prosecution, I, above have agreed to be dealt with  under the  POLICE  ADULT  DIVERSION SCHEME.    I know that discussions related to this offence are conducted on a “without prejudice” basis, which means that if diversion does not go ahead then nothing I have said during diversion discussions can be used at any further Court appearances.

I admit responsibility for the offence(s) of INT DAMAGE.

[13]     Further down the form there are set out the conditions of diversion agreed to, which include payments in each case of the first and second defendants of $833 reparation, a letter of apology and 100 hours community service with the Salvation Army.  Additionally each defendant agreed to make a donation to Victim Support of

$400.  Then  at the bottom of the form it was stated:

By providing this information, to the satisfaction of the diversion officer, and a copy of this diversion agreement I know that I do not need to attend Court that day and that the charge(s) will be withdrawn by the Court.

Below appeared the signatures of the defendants.

[14]     In the case of the third defendant, Mr Rich, there was rather less content concerning the nature of the diversion he was being offered by the Youth Aid section of the Police.   In signing the form he agreed  to similar conditions including a payment to charity etc.  Towards the lower end of the form appears the words:

It is a condition of this contract that I do not re-offend.

[15]     It is also significant that counsel who acted for the third defendant in relation to the Youth Court proceedings, Mr Bonnar, sent an email to the detective in charge of the case discussing the Youth Court contract.   As might be expected from an experienced criminal lawyer, Mr Bonnar was concerned to spell out the implications of his client signing the contract.  His email said in part:

I record your advice that if James is essentially prepared to accept responsibility for his part in the events leading to the fire, he would not be charged but the matter would be referred to the Youth Aid section and he would be subject to an informal diversion process, with outcomes along the lines of the diversion plans which were offered to the boys who have been charged.  However, if he was to deny any involvement or liability, he would be charged and the matter put before the Youth Court to resolve the factual dispute between the boys.

As discussed, I was concerned that this put James in a difficult dilemma, as his instructions to me are that he told you the truth about his involvement or lack of involvement in the matter.

I have taken further instructions and James is still adamant that what he told you in interview was the truth and that Levi’s version of his involvement is not true.

However, he does feel a degree of guilt by association on a moral level, even if (as I have advised him) he is legally not guilty.  He also wants to get ahead and  put  the  whole  episode  behind  him  as  quickly  as  possible,  and  is conscious of the delays and costs which would be involved in going through a formal Court process in the Youth Court.  Accordingly, I am instructed that he would be prepared to accept responsibility for playing a part in the events which lead to the fire and to have the matter dealt with informally by the Youth Aid officers.

Summary of the case against the first and third defendants

[16]     The plaintiff submitted that its case was supported by the fact that that each of the defendants accepted criminal responsibility for committing intentional damage

as a condition of receiving diversion.   The plaintiff seeks to rely upon those admissions as assisting it to prove its case against the defendants.

[17]     Apart from annexing the documents relating to the diversions, no further information was provided by the plaintiff.  It was suggested by Mr Wimsett for the third  defendant  that  it  was  not  established  that  the  intentional  damage  actually related to the setting fire to the school classrooms.  There had been other apparently minor acts of vandalism committed on the night in question including damaging a picnic table.  He also made reference to the quantum of the compensation payments that the defendants were expected to make as suggesting that the intentional damage may have been in regard to those minor acts of vandalism rather than the classroom fires.

[18]     On the other hand, the plaintiff has filed an affidavit verifying the statement of claim asserting that the defendants were being proceeded against for negligence and trespass in regard to the damage to the classrooms.  In that context, it would not be reasonable to read the verifying affidavit which has been filed in support of the application as referring to diversion other than in relation to that head of damage.

[19]     Of  more  significance,  though,  is  the  other  considerations  about  which Mr Wimsett had addressed me and which applied to all of the three defendants. There is one unique feature of the document that the third defendant signed in order to obtain the diversion and that is that his diversion agreement does not seem to make reference to any particular criminal offence.   However, given that identical apologies, reparation etc were required in his case as well it can be fairly inferred that it related to the same matters as the adult diversion which was granted to the first and second defendants.

[20]     Mr Wimsett submitted to me that an agreement to accept diversion does not necessarily amount to proof in civil proceedings that the defendant has admitted that he actually carried out the acts which were the subject of the charge and so entitling another  party  to  obtain  a  civil  remedy  based  upon  the  admission  or  implied admission in the diversion process.   Mr Wimsett submitted that the agreement to undergo  diversion  is  usually preceded  by the  defendant  giving  consideration  to

matters such as what the legal costs will be if he/she has to defend the proceeding. There is also the fact that the defendant can get the matter over and done with and does not have the continuing stress of the proceeding hanging over his or her head. There is also the matter of litigation risk and while the defendant may not agree that he has committed the offence, the possibility that a Judge or jury might erroneously conclude that he did may be a risk that the defendant is not prepared to run.  The result is that to manage the risks inherent in the situation and to be sure of escaping without a conviction, a defendant may agree to accept responsibility for the purposes of diversion.

[21]     The points that Mr Wimsett made were similar to those that Mr Bonnar raised when he sent the email he did to the Police in December 2009.

[22]     Counsel advise me that there was no legislative framework regulating the diversion process at the time when these three defendants were granted diversion. There is thus no statutory prescription of the effect of accepting a diversion or its evidential value in other proceedings.  When viewed on such a basis the only value that the acceptance of diversion can have to a party in subsequent civil proceedings is that it amounts to an admission that the defendant committed the criminal offence in question.

[23]      Two points can be made.  The first is that notwithstanding that they agreed to diversion, the first and third defendants maintain their innocence.   Therefore, having implicitly admitted that they carried out the acts which lead to the destruction of the school when they signed the forms for the purposes of the diversion, they have subsequently expressed explicit denials that they had done so in the affidavits which they filed in these proceedings.   However there are reasons why a Court could conclude that the implied admission in the diversion proceedings was actuated by considerations other than making a candid and complete admission of guilt and was instead made for the collateral purpose of obtaining diversion.  For those reasons, I do not consider that in the context of the summary judgment application it can be assumed that it is not fairly arguable that the defendants did not personally carry out the acts which lead to the destruction by fire of the two school classrooms.

[24]     I observe that the position in a case of this kind is different from that where there has been a conviction in a criminal proceeding which will bind a party in a subsequent civil case as a result of the enactment of s 47 of the Evidence Act 2006.

[25]     However,  having  regard  to  all  these  factors  including  the  age  of  the defendants at the time when they entered into the diversion it is my view that it would not be just to deprive them of the possibility of having their account of matters accepted at trial on the point of whether their personal actions caused the fire on the night in question.  That at least is true of the first and third defendants who have filed notices of opposition denying their involvement.   The position of the second defendant I deal with next.

Position of the second defendant

[26]     The second defendant has not denied the allegations in the statement of claim which were the basis of the application for summary judgment.   The statement of claim has been verified on oath by the plaintiff.   It is alleged in the statement of claim that he picked up part of the burning teddy bear, threw it into a plastic wheelie bin positioned against the exterior of classroom JS20 which lead to the recycling bin catching fire and spreading from the recycling bin to the classrooms causing the damage complained of.

[27]     The same difficulties that stand in the path of the plaintiff with regard to the case against the first and third defendants are not present in relation to the second defendant.  There is sufficient evidence for the purposes of summary judgment that the second defendant was responsible for the initiation of the fire which damaged the classrooms.

Claim in trespass

[28]     The claim that the plaintiff brings is based upon trespass.  While the second defendant took no part in the hearing, the submission was made by the first and third

defendants that the plaintiff had not ruled out an arguable defence to the effect that the defendants were not trespassers on the school property.   I consider that it is desirable that  that  aspect of the matter  be  considered  in  relation  to  the second defendant.

[29]     In my view the plaintiff succeeds on this point.   In the case of Howden v Ministry of Transport,1  the Court was concerned with the entitlement of a Police Officer to come onto private property without first obtaining the consent of the property occupier in the course of carrying out his duties to enforce drink driving laws.  The case is authority for the view that a person may have a lawful justification for being on property if the occupier consents to their presence on the land.  Nor is a

person a trespasser if he or she is on the land with the permission, express or implied of the person in possession of the land.  In Howden, there was said to be an implied licence for persons to enter onto private residential property when it is reasonable for a lawful business to be conducted.2     Counsel for the first and third  defendants submitted that because the defendants were pupils at the school they had an entitlement to be on the property.  I do not accept the fact that the defendants were

pupils at the school can give rise to an arguable defence that when the defendants were present at the school in the early hours of the Sunday morning when the fire occurred that they were there pursuant to an implied licence.  The fact that they may have been enrolled as pupils at school does not entitle them to be there in the middle of the night.  It is not suggested that there was any express licence or actual consent. The point in my view is obvious and does not require further elaboration.

[30]     I further accept that while the tort of trespass is one that involves deliberate action, the necessary mental element required is no more than a conscious intrusion on to the property and the intention to trespass will be present even where there is an honest and reasonable belief that the defendant had a lawful right to enter.3

[31]     The   plaintiff   says   that   “damages   for   trespass   are   recoverable   for consequential loss, subject to a test of remoteness”.   Ms Lucas referred me to the

1 Howden v Ministry of Transport [1987] 2 NZLR 747 (CA).

2 At 754.

3 Shattock v Devlin [1990] 2 NZLR 88 (HC).

case of Mayfair Limited v Pears.4   That authority was also referred to by Mr Wimsett for the third defendant.  In that case, the respondent had intentionally parked his car unlawfully in the appellant’s parking building in circumstances which amounted to a trespass.  After the respondent had left his car, it inexplicably caught fire and caused damage to the appellant’s building.  The Court held that it would be unjust to impose liability.  Three different judgments were given by the Court of Appeal and it is not necessary to refer to all of them because they reached the same result.  The following passage from the judgment of Somers J is applicable in the circumstance of this case:5

But whether such a nexus provides a generally sufficient and satisfactory test of remoteness need not be decided in this case.  The rules about remoteness of damage are intended to limit the amounts recoverable by the plaintiff to those that are not only connected to the Act but which are reasonable having regard to its nature and the interests of the parties and society.   Here the injury to the plaintiff’s premises was without intent or negligence, was not foreseeable, and could not reasonably be described as a direct or immediate result of the trespass.  At most the tort provided the occasion – it was a sine qua non..  I think it would not be reasonable to require the defendant to meet the loss in these circumstances.

[32]     But in this case the causative link between the first and third defendants and the commission of damage by another person (assuming they have an  arguable defence that they did not carry out the act themselves) is not even satisfied on the “but for” standard.   It is therefore not simply an issue of limiting the extent of recovery for damage which the defendant caused by his actions.  In this case the first and third defendants trespassed on the land but, at least at the summary judgment stage, on the basis of the evidence given, it must be assumed that the fire was set by some person other than the first or third defendant.  Therefore it is impossible to say that any trespass which the first and third defendants committed caused the loss by fire which the plaintiff suffered.

[33]     Another possibility that was canvassed in submissions is whether the first and third defendants were joint tortfeasors with the person who actually set fire to the building.  There is some evidence that the first defendant might have said something

about  “let’s set  the school  on  fire” although  that  was  said  to  have been  stated

4 May Fair Limited v Pears [1987] NZLR 459 (CA).

5 At p 466.

jokingly.   Just what effect the action of the first defendant might have had on the person who set fire to the building as a result of this utterance, if any, cannot be satisfactorily determined in the context of a the summary judgment application.  It may have been the case that the utterance was so clearly facetious that it would be unreasonable to come to the view that it provided a genuine encouragement to the person who set the fire to do so.

[34]     Apart  from  that,  there  is  however  no  evidence  that  the  defendants  had discussed or agreed to take any of the steps which were part of the sequence of events that lead to the classrooms being burnt down.

[35]     To summarise, the fact that the first and third defendants were trespassers together with the second defendant does not make them liable for the consequences of the actions of the second defendant.  Cases such as Mayfair are concerned with the degree of remoteness of damage which is recoverable against a party whose actions have been proved to be the cause of the loss.

Negligence

[36]     The plaintiff also claimed in negligence.  The negligence was alleged to have consisted of failing to stop the fire when it was put out or call the emergency services.  Ms Lucas was not able to point to any authority which established that a defendant in the position of these men would have been under such a duty.  I do not accept that the plaintiff has a viable cause of action in negligence on the basis of the evidence that has been offered in support of the summary judgment application.

Result

[37]     The result is that the application for summary judgment against the first and third  defendants  is  dismissed.    In  the  case  of  the  second  defendant  summary judgment is granted.   There will be judgment against the second defendant in the sum of $243,888.89.  The plaintiff is entitled to costs on a 2B basis together with disbursements as fixed by the Registrar.

[38]     The plaintiff seeks interest pursuant to the Judicature Act 1908.  The problem with that claim is that while it is clear that the plaintiff actually carried out the repairs at the latest by the time it issued its proceedings, it is not clear on what date that expenditure was actually incurred.   In the absence of evidence on the point, I cannot discern any satisfactory basis upon which the period for which interest should run is to be regarded as commencing.   I decline to make any order in regard to interest.

[39]     The parties are to confer and are to file a consent memorandum/a for my attention concerning the steps that are to be taken from this point to ready this matter

for trial.  Such memoranda are to be filed and served by 23 August 2013.

J.P. Doogue

Associate Judge