Kristinsson v Southern Response Earthquake Services Limited
[2017] NZHC 456
•16 March 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000318 [2017] NZHC 456
BETWEEN HUGO KRISTINSSON
Plaintiff
AND
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED First Defendant
AND
EARTHQUAKE COMMISSION Second Defendant
Hearing: 8 March 2017 Appearances:
ACC Hooker and M Hills for Plaintiff
RD Cuff for First Defendant
N J Bruce-Smith for Second DefendantJudgment:
16 March 2017
RULING OF ASSOCIATE JUDGE OSBORNE
(In Relation To Expertsʼ Conference)
[1] An issue has arisen as to which experts should be involved in a joint review and joint reporting process which the Court directed take place in relation to this case in the Earthquake List.
The directions previously made
[2] The Court in November 2016 made directions by consent that:
(a) The defendants were to advise the plaintiff if they agreed or disagreed
with the [plaintiff’s] engineers’ reports by 25 November 2016.
KRISTINSSON v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED [2017] NZHC 456 [16
March 2017]
(b)If the defendants disagreed with the plaintiff’s reports they would provide their own expert report(s) identifying the natural disaster damage and appropriate repair methodology by 16 December 2016.
(c) The parties’ experts were to carry out a joint review at the site to identify areas of agreement and disagreement as to the natural disaster damage to the residential building and the appropriate repair strategy by 22 December 2016.
(d)Following the joint review, the parties’ experts were to file a joint report or, if that was not feasible, separate reports identifying the earthquake damage to the residential building and the appropriate repair strategy for the earthquake damage, including identifying (if possible) the areas of agreement and disagreement by 27 February
2017.
[3] In requesting those directions, counsel had identified the respective positions of the parties by reference to expert evidence each had obtained.
Plaintiff’s evidence
[4] The plaintiff ’s evidence was summarised in the following paragraphs of the
joint memorandum:
20.Structura has identified prominent damage, settlement/tilt of the garage and house, frame racking, lateral spread/liquefaction up to
1.5 metre indicating that it is flood prone.
21.In order to repair the house, new foundations are recommended as the repair methodologies have potential for future damage due to residual tension caused by lateral stretch.
22.Structura recommends that the exterior cladding of the house be removed, and the house be lifted to another site, ground floor structural framing may require structural repair or to be discarded due to the lateral stretch; new foundation be constructed; return the house to site; remove internal linings, bring house to level, plumb, square, fix to foundation and reline internally; house be positioned so first floor is level; install new brick veneer; make good architectural features; relevel the garage using low mobility grout;
repair slab; achieve original full bond or alternatively rebuild the garage in similar construction.
23.Topgrafo reports that the superstructure has racked and is on a lean as a result of 1.3 metres of lateral spread and the damage is not minimal; to return the house and garage to an ‘as new’ state which is not flood prone the buildings would need to be lifted to at least RL
12.30m of the Christchurch City Datum. A reinstatement strategy would need to consider returning both floors to a level state; any
repair/replacement strategy to consider the removal of damage
caused to the superstructure caused by racking, twisting and warping.
Defendant’s approach to evidence
[5] Southern Response’s position was that it had engaged the services of structural and geotechnical engineering experts, a number of whom had visited the property. Southern Response recorded that it maintains that the house is repairable.
[6] EQC recorded that it was only at the time of being served with the proceeding (and initial disclosure) that EQC obtained the Structura engineering and the Topografo survey reports on which the plaintiff relies. EQC recorded a need to consider the reports provided.
[7] It was against that background of reports obtained to date that the consent directions were made as to the conferral of experts.
The site inspection
[8] I am informed by counsel that a conference (with joint site inspection) of experts took place on 24 January 2017. For the plaintiffs, personnel attended from the providers of the plaintiff’s reports (Mr Rakovic of Structura and Mr Cowie of Topografo). One expert (a structural engineer) attended on behalf of the defendants.
[9] Counsel for the defendants had previously signalled to counsel for the plaintiff an objection to the involvement of Mr Cowie in the engineers’ joint expert reporting process. Counsel for the plaintiff insisted upon Mr Cowie’s attendance. The defendants’ solicitors had the defendants’ expert continue with the conferral process in the interests of moving the conferral process forward.
The joint reporting process
[10] However, the defendants do not want Mr Cowie taking part in the joint reporting process.
The observations of counsel
[11] The defendants’ position was identified in the memorandum of counsel for
Southern Response and EQC in the following terms:
While the defendants accept that Mr Cowie is qualified to give surveying evidence, he has no expertise regarding the assessment of earthquake damage to residential buildings and advising on the appropriate repair strategy. In C & S Kelly Properties Ltd v EQC [2015] NZHC 1690, Mr Cowie (at paragraph 164):
… accepted he did not have structural or geotechnical engineering qualifications, and clearly did not meet the requirements of expertise in terms of engineering matters.
As such, Mr Cowie is not able to confer with the parties’ respective structural engineers on the damage to the building or how that damage should be repaired (just as the engineers are not qualified to confer with Mr Cowie on surveying matters). It follows, in the defendants’ submissions, that Mr Cowie’s involvement in the completion of the Joint Expert Report would not assist the parties (or the Court) in identifying the extent to which there is agreement and disagreement on what the structural earthquake damage to the house is and how it ought to be repaired. Rather his involvement would only add to the time and cost required to complete the Joint Report.
[12] Thus, the defendants’ position is substantially influenced by the proposition that Mr Cowie is entitled to claim expertise in relation to matters of surveying, but that his areas of expertise do not include matters to be assessed by the structural engineers such as natural disaster damage. The defendants’ counsel refer to help the Auckland engineers might receive from “surveying data”, for which they can refer to reports already provided.
[13] For the plaintiff, Mr Hooker rejects the defendants’ attempt to restrict
Mr Cowie to providing evidence in relation to such matters as “surveying data”.
[14] Mr Hooker puts it thus:
14.To attempt to limit the role of a surveyor to providing data for engineers is incorrect. A surveyor is an expert who can give helpful opinion evidence on identification of damage and remediation strategies.
15.Dislevelment and land subsidence are matters that are relevant to identification of earthquake damage. Whether the property is out of level, either horizontal or vertical are all within Mr Cowie’s expertise, and are imperative to assessing the cause and extent of the damage, and for expert engineers to consider in their assessments.
[15] Mr Hooker refers to the recent decision in Young v Tower Insurance Limited1 in which this Court relied on evidence of the surveyors (Mr Cowie being the plaintiff’s surveyor) to identify earthquake damage.2
[16] Mr Hooker referred also to the Court of Appeal judgment in Jarden v Lumley Insurance Limited3 in which that Court described Mr Cowie as “an engineering surveyor”.4
[17] Mr Hooker observed that the approach put forward by the defendants involves an assumption that there will be a series of layers of discrete expert evidence in which one layer builds on the layers of other reports. Mr Hooker submitted that when the Court and parties come to an issue such as identification of earthquake damage it is not the case that the evidence on such an issue must be given by one particular engineering (or other) discipline.
[18] Mr Hooker submits it is appropriate that Mr Cowie be involved in the experts’ conferral in relation to identifying earthquake damage and repair strategy – he submits that a genuine and constructive collaboration between Mr Cowie and the
other experts is the course which will be most efficient.
1 Young v Tower Insurance Limited [2016] NZHC 2956
2 At [50] – [51].
3 Jarden v Lumley Insurance [2016] NZCA 193.
4 At [54].
Discussion
The general approach to expert conferral in the Earthquake List
[19] The Court recognises that there may be from time to time witnesses whose areas of expertise span more than one particular discipline. There may be evidence in relation to subject matter which calls for the expertise of more than one discipline.
[20] Generally, however, the case management of litigation in the earthquake list will be assisted by the expert evidence building in layers. Thus in a more complicated case the layers may consist of geotechnical engineering, surveying, structural engineering and quantity surveying evidence. Ultimately the order in which expert evidence and matters relating to expert evidence as directed are matters of case management. In that regard the Court will have a focus in ensuring that reporting, conferral and the like occur in the most efficient manner. There is a parallel situation, when the expert witnesses need to be called at trial, at which time (under High Court Rules r 9.46) the Court directs the “sequence … best suited to the circumstances of the proceeding”.
[21] There is a further matter which informs directions in relation to expert conferral under the High Court Earthquake List. It lies in the fact that the meeting of experts is privileged (in the nature of a “without prejudice” privilege). The benefits intended to be conferred by that cloak of privilege and freedom to discuss would potentially be impeded if experts of like disciplines were required to discuss their positions at the initial conferral stage in front of experts of other disciplines.
The particular role of Mr Cowie
[22] It is clear that Mr Cowie is entitled to claim expertise as a surveyor. In C & S Kelly Properties5 to which counsel for Southern Response and EQC have referred, Mander J noted the acceptance by those two defendants of Mr Cowie’s expertise as a surveyor. It is clear from the paragraph counsel have quoted (paragraph [164]) that Mander J took into account the (undisputed) evidence of Mr Cowie “in relation to measurements and levels”.
[23] In C & S Kelly Properties, the plaintiffs for engineering evidence relied upon that of Mr Rakovic (again retained in this case). In that case, therefore, Mr Cowie’s acceptance that he “did not meet the requirements of expertise in terms of engineering matters” meant that the plaintiff’s case, to the extent it relied on expert conclusions as to the reasons for the dislevelment identified by Mr Cowie, drew on other experts (including the defendant’s expert engineers and Mr Rakovic for the plaintiff).
[24] The layered approach to the evidence is reflected in the paragraph which
introduces the discussion by Mander J of the topic “settlement of the land”:6
Mr Adrian Cowie, a professional surveyor, gave evidence of various measurements he obtained as a result of his survey of the house and the land. Mr Cowie’s survey work was accepted as accurate by the parties, and the views and opinions of the various experts drew upon his measurements.
[25] As I observed, Mr Hooker for the plaintiff also draws support for a wider scope of expertise on the part of Mr Cowie from the Court of Appeal’s description of Mr Cowie (in Jarden)7 as an “engineering surveyor”.
[26] In Jarden, the Court’s choice and understanding of the term “engineering surveyor” does not appear to be explained elsewhere in the judgment. In the same paragraph as the term appears (paragraph [54]), the identified evidence of Mr Cowie is of the same surveying nature as that dealt with by Mander J in C & S Kelly Properties. This is reflected in these sentences:
Mr Cowie, an engineering surveyor called by the Jardens, had undertaken measurements of the walls of the house, using a vertical laser plumb. His measurements were not disputed by Lumley.
[27] Later passages in the judgment of the Court of Appeal in Jarden indicate that there was then a similar layering of evidence, with other experts of relevant expertise, Mr Cook and Mr Davey for Lumley and Mr Scarry for the Jardens,
building on the evidence of the survey evidence.
6 At [164].
Conclusion
[28] Mr Cowie’s fundamental area of expertise is in surveying.
[29] The appropriate layering of expert evidence means that in a case management context it is appropriate that those whose fundamental area of expertise is in engineering should be the experts to confer in relation to causes of natural disaster damage and remedy.
[30] That approach does not require Mr Cowie, if he is able to qualify himself in some adjunct areas beyond what might strictly be called “surveying”, from including in his report/s any opinions which he is qualified to give. With his report available to the expert engineers, they will be able to take it into account (and indeed obtain further information from Mr Cowie if appropriate) but the conference will remain their conference and the joint report will be their report in the light of their conferral.
Directions
[31] I amend the direction contained at paragraph [51](v) of counsels’ memorandum dated 3 November 2016 (and the Minute issued in relation to it) to read:
Following the joint review of 23 January 2017, the parties’ experts who attended the inspection with the exception of Mr Cowie shall file a joint report (or, if this is not feasible, separate reports) identifying the earthquake damage to the residential building and the appropriate repair strategy for the earthquake damage, including identifying (if possible) the areas of agreement and disagreement by 27 March 2017.
Next case management conference
[32] I adjourn the proceeding to a further case management conference on a date to be allocated by the Judicial Support Adviser after 10 April 2017
[33] Counsel are directed to file by 3 April 2017 preferably a joint memorandum dealing with the readiness of this proceeding for hearing. The agenda for the conference (r 7.4(2)) will be all Schedule 5 matters including:
· progress achieved by the experts;
·a list of the issues which remain between the parties in the light of that progress;
· any steps necessary for the disposal of interlocutory applications;
·the suitability of the case for Judicial Settlement Conference or alternative dispute resolution;
· the estimated duration of the hearing;
· timetable directions for trial;
·the names and number of witnesses (and which are factual and expert);
· any further directions required in relation to experts; and
·confirmation that a back-up fixture will be accepted (or if not, why not), subject to prior notification.
Associate Judge Osborne
Solicitors:
Shine Lawyers NZ Ltd, Christchurch
DLA Piper New Zealand, Wellington
Chapman Tripp, Wellington
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