Marlborough Lines Limited v New Zealand Fire Service Commission
[2017] NZHC 2127
•1 September 2017
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CIV 2017-406-010 [2017] NZHC 2127
UNDER Section 43 of the Forest and Rural Fires
Act 1977
BETWEEN
MARLBOROUGH LINES LIMITED Appellant
AND
NEW ZEALAND FIRE SERVICE COMMISSION
First Respondent
AND
MARLBOROUGH KAIKOURA RURAL FIRE COMMITTEE (KNOWN AS THE MARLBOROUGH KAIKOURA RURAL FIRE AUTHORITY)
Second Respondent
Hearing: 14 August 2017 Appearances:
J L Forrest for Appellant
B A Scott and R D Hutchison for RespondentsJudgment:
1 September 2017
JUDGMENT OF CHURCHMAN J
CONTENTS
Introduction .................................................................................................................................. [1] The facts ...................................................................................................................................... [12] Summary judgment application ................................................................................................ [21] The appeal ................................................................................................................................... [24] Appellant’s submissions.......................................................................................................... [26] Respondent’s submissions ...................................................................................................... [44] The relevant statute .................................................................................................................... [55] Analysis ....................................................................................................................................... [73] Summary judgment principles .................................................................................................. [93] Factual findings ........................................................................................................................ [102] Non-natural user........................................................................................................................[112] Law and economics................................................................................................................... [126]
Disposition ................................................................................................................................. [133]
MARLBOROUGH LINES LIMITED v NEW ZEALAND FIRE SERVICE COMMISSION [2017] NZHC 2127 [1 September 2017]
Introduction
[1] This is an appeal against a decision of Judge Zohrab in the District Court at
Blenheim on 27 March 2017 refusing summary judgment.
[2] The case raises issues as to liability of a lines company for damage caused by fire when one of its power lines was severed as a result of a third party negligently felling a tree.
[3] All communities in New Zealand whether urban or rural have an expectation that electricity will be supplied to them. That expectation has resulted in legislation establishing entities charged with the supply of electricity to consumers.1
[4] Electricity is commonly reticulated either by overhead transmission lines or underground cables. Whether the transmission of electricity is by way of lines,2 or underground cables,3 there is the potential for electrical currents to escape and to damage property, often by starting a fire.
[5] The escape of electrical currents and consequent damage can occur without the entities supplying electricity having done anything that would fall within the traditional actionable civil wrongs such as negligence, nuisance, or a cause of action based on Rylands v Fletcher.4
[6] Forces of nature or the actions of third parties can often be the proximate cause of electricity escaping and this gives rise to the difficult issue of the extent to which the entity reticulating the electricity should be liable, in those circumstances, to a person whose property has been damaged by an ensuing fire.
[7] In rural areas of New Zealand, particularly in summer, fires can cause widespread damage. Sparse population densities, large distances and difficult
topography can make fighting rural fires a challenging and costly exercise.
1 That legislation has included the Electricity Act 1968, the Electricity Act 1992, the Electricity
Industry Act 2010 and various related regulations.
2 Quebec Railway, Light, Heat and Power Company v Vandry [1920] AC 622 (PC).
3 Midwood & Co v Manchester Corporation [1905] 2 KB 597 (CA).
4 Rylands v Fletcher [1868] LR 3 HL 330.
[8] Issues relating to the equitable sharing of cost and risk of fires in rural areas give rise to significant questions of policy. They involve weighing competing social values and a consideration of where the economic cost of damage caused by fires is best met.
[9] In New Zealand the solution to the question of how such loss should be equitably apportioned was, at the time material to this case, found in s 43 of the Forest and Rural Fires Act 1977 (the Act).
[10] Section 43 does not limit liability to situations where traditional causes of actions such as negligence, nuisance or Rylands v Fletcher are made out. Instead, it imposes strict liability.5
[11] This case raises the issue of what has to be pleaded and proved in order to establish that strict liability. It also involves a consideration of the context and purpose of s 43.
The facts
[12] The facts pleaded in the statement of claim in the District Court and admitted in the statement of defence include:
(a) That the New Zealand Fire Service Commission (the first respondent) was constituted under s 4 of the Fire Service Act 1975 (FSA) and is the National Rural Fire Authority in terms of s 14A of the FSA, and performs, pursuant to s 14A(2)(b) of the FSA, the functions conferred on it by the FSA and the Act.
(b)That the Marlborough Kaikoura Rural Fire Committee (known as the Marlborough Kaikoura Rural Fire Authority) (the second respondent or the Fire Authority) was a body corporate constituted under s 8 of the Act and, pursuant to s 2 of the Act, was the administering fire authority for the area where the fire occurred.
(c) The appellant was an incorporated company carrying on business as an electricity lines company and was the owner of a two-line 11kV electricity power line and associated infrastructure (power lines) that ran from a single pole transformer number AA1188 across the property located at Tumbledown Bay Road, Port Underwood (the property).
[13] It was agreed that on or about 21 December 2013, a person carrying out work on the property felled a tree which then fell across the power lines. The tree and power lines were both located on the property.
[14] The appellant further added that the person who felled the tree was Peter Collins and that he was not a qualified arborist and had no connection to the appellant, and that the tree was felled negligently or recklessly.
[15] The respondents appear to take no issue with these additional factual allegations.
[16] The issue of whether or not the sequence of events that occurred in this case was “extraordinary” is of critical legal significance. If the events can be categorised as “extraordinary” then, in accordance with the leading decision in Tucker v New Zealand Fire Service Commission, no liability will attach to the appellant.6
[17] The parties agreed that as a result of the tree falling across the power lines, vegetation in the vicinity ignited causing the fire; that the fire spread over approximately six hectares of vegetation damaging property; that the Fire Authority extinguished the fire; and that as a result of extinguishing the fire, the Fire Authority incurred costs amounting to $107,089.07. The appellant accepted this, other than in relation to a GST component.
[18] The respondents alleged that the appellant, by operating the power lines produced a situation in which a fire could occur.7
6 Tucker v New Zealand Fire Service Commission [2003] NZAC 270 (HC).
7 Statement of claim, 27 April 2016 at [10].
[19] The appellant specifically admitted this but pleaded further that:
(a) The fire was caused by the negligent or reckless act of a third party
who felled a tree which fell onto the power lines … [and]
(b) The [appellant] was not responsible for causing the fire.
[20] The appellant denied the respondents’ pleading that the agreed sequence of events was an “ordinary and not extraordinary occurrence” and alleged instead that it was “extraordinary”.
Summary judgment application
[21] The appellant applied for summary judgment against the respondents pursuant to r 12.2 of the District Court Rules 2014. The grounds upon which the application was made were as follows:8
(a) The claim alleges that the appellant is liable under s 43 of the Forest and Rural Fires Act in respect of a fire caused when a person with no specialist training felled a tree onto power lines owned by the appellant.
(b)The person who felled the tree was an occupier of the land and had no connection to the appellant. He acted contrary to the appellant’s advice regarding the felling of trees in the vicinity of power lines.
(c) The person who felled the tree and/or the landowner are responsible for the cause of the fire.
(d)The appellant complied with the relevant legal and statutory duties and took a number of steps (detailed in affidavit evidence) to preclude the possibility of vegetation causing a risk of fire.
(e) The negligent or reckless felling of the tree onto the power lines by an unqualified person is an extraordinary circumstance.
(f) The appellant is not a party who is responsible for causing the fire and is not liable under s 43 of the Act.
[22] The respondents opposed the application for summary judgment. The grounds were:9
(a) The appellant’s application for summary judgment does not establish that the cause of action pleaded in the statement of claim cannot succeed.
(b)Section 43 of the Act imposes strict liability for the costs of fire control on persons that cause fires irrespective of whether the person causing the fire is otherwise civilly responsible for those costs.
(c) The respondents’ statement of claim alleges that the appellant caused the fire, within the meaning of s 43, by operating the power lines in circumstances where it was not an extraordinary occurrence for a fire to result from the lines being damaged by a tree falling on them (whether the result of the tree being felled or any other cause).
(d)The affidavit evidence filed in support of this notice of opposition alleges inter alia that:
(i) power lines are a well-known cause of rural fires;
(ii)there are a number of contemporary examples of fires being caused by trees breaking power lines in rural locations, including where the trees have been felled and have fallen onto lines;
(iii)the risk of fires being caused by trees breaking power lines, including as a result of being felled, is a hazard that is
specifically known to the appellant, Marlborough Lines
Limited;
(iv)there are steps that the appellant could have taken to reduce or eliminate the risk of the power lines causing fires in this manner, which the appellant chose not to take; [and]
(v)from a law and economics perspective the appellant can be said to have caused the fire in these circumstances, and it is appropriate from that perspective for the appellant, as the entity creating the situation in which the fire occurred, to bear the cost of that fire.
[23] Judge Zohrab refused the appellant’s summary judgment application. The
reasons for him doing so are encapsulated at the end of his decision:10
Standing back and looking at the matter, and taking a common sense assessment, as I must, it is fairly arguable, in my view, that given that these were ordinary events, and given that Marlborough Lines failed to identify and take any steps to deal with the risk presented by the tree, that both the landowner and Marlborough Lines caused the fire, and as such the applicant, Marlborough Lines, has failed to satisfy me on the balance of probabilities that the [respondents’] course of action cannot succeed.
The appeal
[24] The notice of appeal lodged by the appellant challenged two findings made by the District Court that:
(a) The fire in question was ‘caused’ by the Appellant for the purposes of s 43 of the Forest and Rural Fires Act 1977 (the Act); and consequently,
(b) The Appellant was not entitled to Summary Judgment by Defendant.
[25] The appellant relied on six grounds in relation to its challenge to the District
Court’s findings namely:
(a) The common sense approach to causation under the Act required a finding which was consistent with the District Court’s statement that the direct cause of the fire was the landowner felling the tree.
(b) There is no allegation (or suggestion) of negligence or breach of any duty in the pleadings.
(c) There is no evidence of fault in relation to the Appellant’s maintenance of the power lines and the Growth Limit Zone provided by the Electricity (Hazards from Trees Regulations) or its efforts to identify and deal with hazards posed to the lines.
(d) The District Court finding that there were omissions by the Appellant which could be categorised as a fundamental failure (by failing to identify the tree as “a potential hazard” in failing to take further action) is not based on evidence and is speculative.
(e) The District Court’s suggestions as to how the Appellant might anticipate the risk of negligent felling and take steps to deal with it are unrealistic and impractical given the size of the region and the type of risk involved.
(f) This fire was caused in circumstances which are properly characterised as unusual or extraordinary in terms of the test for causation outlined in Tucker v New Zealand Fire Services Commission.
Appellant’s submissions
[26] Ms Forrest, for the appellant, described the claim in the District Court by the respondents as being “novel”. She acknowledged that s 43 was a strict liability provision and no intent, negligence or want of care is required to be proved. She noted that there was no allegation that Marlborough Lines was negligent, remiss or otherwise deficient in the way that it operated and maintained the power lines.
[27] If there was no allegation of negligence or tortious liability, Ms Forrest submitted that liability would depend on the facts being decided under the categorisation in Tucker of events being either a “normal fact of life” or “in the general run of things a matter of ordinary occurrence” on the one hand and “unusual” or “extraordinary” on the other hand.11
[28] In support of the proposition that the combination of events that led to the fire in this case was an extraordinary event rather than something which was common
place or ordinary Ms Forrest referred to the various factual allegations of the appellant: careless actions of the tree feller, and the fact that the tree was relatively young, healthy and imposed no inherent risk. It was also submitted that the power lines were appropriately maintained and the specific risks of tree felling had been communicated to residents repeatedly. Further, that Marlborough Lines does not have the ability (or duty) to guard against the intervention of others such as the resident (who felled the tree carelessly).
[29] In support of this, Ms Forrest pointed to the fact that the Electricity (Hazards from Trees) Regulations 2003 set a growth limit zone around power lines and provided that if a tree was encroaching on the growth limit zone, the lines company must issue a cut or trim notice to the owner of the tree.12 On receipt of such a notice a tree owner must cut or trim the tree so that it is no longer encroaching on the growth limit zone.13 On the facts, the tree which was the cause of the fire was outside the noted zone provided in the regulations, therefore Ms Forrest submitted the appellant had no statutory ability (or statutory duty) to require the particular tree to be cut or trimmed.
[30] Ms Forrest referred to the regular preventive measures taken to reduce the risk of fire including regular inspection patrols, and maintenance of the lines and the appellant’s close liaison with the Fire Authority. Included in the preventive measures was modification by the appellant of the circuit breaker in high risk areas so as to the disable the re-close function on the power lines. Emphasis was placed on the fact that the appellant communicated regularly with landowners about the need for them to be vigilant regarding trees close to the lines, and the need for them to engage arborists if they intend to fell or trim trees.
[31] Against this factual background, counsel for the appellant’s submissions focused on the fact that the District Court’s findings were based on the benefit of hindsight and the recommendations by the Judge as to further steps the appellant could and ought to have taken regarding the fire risk were made without independent verified evidence or reference to the statutory context.
[32] One of the leading cases on causation and strict liability is the judgment of the House of Lords in Environment Agency v Empress Car Co (Abertillery) Ltd.14
Counsel suggested that a key part of the reasoning in the House of Lords in that case “… was effectively a finding that the defendant was either negligent or remiss in its approach that the protection required for the storage of the diesel.”
[33] Although expressly acknowledging that negligence or other breach of legal duty was not a prerequisite to liability Ms Forrest advanced the proposition that the test which had been applied in both the Tucker and Empress decisions “continues to involve the concept of responsibility for the cause of the fire”. She said that in the Empress decision:
Liability was founded on the basis that the defendant did not adequately protect against that intervention/harm/interference.
[34] The appellant’s submissions focused on the fact that in Tucker, William Young J thought that s 43 of Act:
… was aimed at the situation where a farmer (or someone else) who deliberately lights a fire in a rural area, and was intended to impose an absolute obligation to make sure the fire does not get out of control.
[35] After discussing the decision in the case of New Zealand Fire Service v Attfield,15 Ms Forrest submitted that, in relation to “the causation required to satisfy s 43” the case law indicates:
Causation in such cases will be difficult to impose in relation to a fire started accidentally in the absence of negligence or breach of other legal obligations.
[36] The appellant’s submissions sought to distinguish between three types of causation; deliberate actions, negligent actions, and accidental/unrelated actions. The appellant’s submission was that this fire involves the third type of action and that “common sense” dictates such actions do not fall within the liability regime.
[37] In support of this, the appellant also sought to distinguish the present facts from the decision in Attfield on the basis that there was no allegation of negligence.
The respondents’ statement of claim “… does not specify any fault or failing by Marlborough Lines”, merely pleading that the appellant “produced a situation in which a fire could occur … by operating the power lines”.
[38] During the course of argument there was a discussion about whether the wording in [10] of the statement of claim was sufficient to convey to the appellant exactly what it was that was relied on by the respondents as providing the basis for the appellant’s liability.
[39] Reference by analogy was made to prosecutions under the Health and Safety in Employment Act 1992 (now the Health and Safety at Work Act 2015). Subsequent to the hearing Ms Forrest provided the Court with a copy of the decision of Faire J in the case of Worksafe New Zealand Limited v Talley’s Group Limited.16
[40] In that case the informant filed a charge pursuant to ss 6 and 50(1)(a) of the Health and Safety in Employment Act 1992 which simply alleged that on a particular date the defendant had “failed to take all practicable steps to ensure the safety of its employee …”.17 The charging document was accompanied by a summary of facts which made allegations as to four particular steps which it was said that the defendant had failed to take.18 Over a year later a new summary of facts was filed which extended the number of alleged failures from four to 15.19
[41] The Court held that what had apparently been Worksafe’s prior practice of including only a general allegation of failure to take all reasonable steps in the charging document and supplementing that with details of the alleged failure set out in an attached summary was not an acceptable practice and the details of the allegations should have been included in the charging document.20
[42] However, because there was no prejudice to the defendant given that the summary of facts that had accompanied the charging document provided details of
16 Worksafe New Zealand Limited v Talley’s Group Limited [2017] NZHC 1103.
17 At [7].
18 At [13].
19 At [20].
the four allegations relied upon, the Court permitted Worksafe to proceed in respect of those four matters although not the balance of the 15 added later.21
[43] Ms Forrest suggested that the procedure adopted in relation to criminal prosecutions for strict liability offences was relevant to the detail required in the pleadings in a civil claim such as this.
Respondent’s submissions
[44] Mr Scott for the respondents argued that:
In order to establish causation for the purposes of s 43 it is sufficient for [the respondents] to show that [the appellant] produced a situation from which the fire resulted, where the concatenation of events leading to the fire is a matter of ordinary occurrence, as opposed to extraordinary.
[45] Mr Scott then attempted to persuade the Court that on the facts the sequence of events that occurred in this case did not fit within the term “extraordinary” as that term had been used in Tucker and Empress.
[46] He started by saying:
There is ample evidence, and no real dispute from [the appellant], that it is not extraordinary for fires to be caused by trees damaging power lines, including because of trees being felled onto the lines.
[47] In response to the appellant’s counsel’s arguments that it took all reasonable steps to limit the risk of the lines causing a fire as a result of tree damage and therefore the fire resulted from “an extraordinary set of events”, Mr Scott said that establishing that the appellant caused the fire was not dependent on identifying negligence or other fault on its part. He said there was nothing extraordinary about the events leading to the escape of electricity which caused the fire. He said that this amounted to causation for the purposes of s 43.
[48] Alternatively, he submitted that the question of whether the appellant did take all reasonable steps to limit the risk of fire resulting from tree damage was an issue which should be determined at trial with the benefit of discovery and full evidence.
In response to the appellant’s description of the respondents’ claim as “novel” he
said that this was a further factor why the claim should be permitted to go to trial.22
[49] On the topic of causation under s 43 counsel referred to some comments from
William Young J in Tucker where he had said:23
the combination of words still suggests that the legislature was looking at causation in fact rather than responsibility in law.
[50] The respondent submitted that counsel for the appellant had misdescribed the Attfield case in referring to the claim as being one “in negligence” and referred to paragraphs [11] and [21] of Attfield which indicated that there was a single cause of action based on the statutory right to recover under s 43 with three alternative particulars of causation pleaded, one of which was negligence.
[51] Counsel for the respondents considered a number of cases in both New Zealand and overseas where power line companies had been held responsible for fires caused by the power lines and suggested that, on the facts “the electricity lines scenario is far removed from the truck driver travelling down the road in Tucker itself”. This submission regarding causation led to some discussion of the principle of a “non–natural user” which I will address later in this judgment.
[52] Mr Scott referred extensively to the speech of Lord Hoffman in Empress and the test he developed for establishing whether or not actions fell within the ambit of a statute which imposed strict liability but not absolute liability. He made the point that foreseeability was not a criterion for liability.
[53] Mr Scott accepted that the appellant would not be responsible for all fires associated with power lines and gave, as an example of the sort of incident where liability would not attach, the terrorist attack example given by Lord Hoffman in Empress.
[54] Finally, Mr Scott urged upon the Court the application of a “law and economics” approach in ascertaining where exactly the duty of care in this case in
22 Referring to New Zealand Fire Service v Attfield, above n 15, at [39].
23 Tucker, above n 6, at [42(2)].
respect of s 43 should fall, supported by an economist’s affidavit evidence supplied
during the District Court hearing.
The relevant statute
[55] The statutory context of a claim under s 43 of the Act was comprehensively analysed by William Young J in Tucker.24
[56] I will not repeat that analysis but adopt it and I will emphasise some particular aspects of it.
[57] The relevant part of s 43 provides that the costs of suppression of a fire may be recovered in the following circumstances:
(1) Where any property has wholly or partially been destroyed or damaged by or safeguarded from an outbreak or threat of outbreak of fire, and responsibility for the outbreak is acknowledged by, or is established by action or otherwise as caused by, any person …
[58] This wording is difficult to understand. I agree with William Young J that:25
There can be no doubt that the hand of whoever drafted s 43 faltered badly. It is extremely difficult to say with any confidence just what the section was intended to mean.
[59] William Young J decided that the words in the second half of s 43(1) only made sense if the words “the outbreak” were added so that the latter part of s 43(1) read:
… and responsibility for the outbreak is acknowledged by or [the outbreak]
is established by action or otherwise as caused by any person.
[60] Section 43 imposes strict liability and the legislation does not require the establishment of negligence, nuisance or any other sort of fault. William Young J held:26
Despite many doubts, I have in the end reached the view that s 43 is intended to apply so as to impose liability on a person who causes the outbreak of a
24 Tucker, at [4]–[43].
fire irrespective of whether that person is otherwise civilly responsible for the fire and its consequences.
[61] The District Court Judge at first instance in Tucker had acknowledged that the offence was one of strict liability but had suggested that liability might be mitigated if the defendant could prove the cause was beyond his or her control.
[62] This reasoning was not accepted by William Young J:27
I cannot read s 43 as imposing a reverse onus. In the context of the section as a whole, I think that the concept of reverse onus adds unnecessary complexity.
[63] Section 43(1) of the Act is not the only provision in that Act potentially relevant to the issue of liability for creating a fire.
[64] Section 53(1) of the Act states:
The costs incurred by a Fire Authority or apportioned to a Fire Authority under this Act in relation to the control, restriction, suppression, or extinction of any fire shall be deemed to be loss suffered as a result of the fire, and, if the circumstances relating to the origin of the fire or the spread thereof are such that any person who suffers loss as a result of the fire has a right of action for damages in respect of that loss against any other person, then the Fire Authority or any owner or other landholder on whom any portion of those costs are levied pursuant to this Act shall have a right of action for damages against that other person for the amount of the costs or the portion thereof levied as aforesaid.
[65] The overlapping nature of ss 43(1) and 53 in the Act was recognised by
William Young J in Tucker:28
A further problem is that it is very difficult to understand the relationship between ss 43 and 53. If s 43 confers a right of recovery based on strict/absolute liability imposed on a person who caused the fire, then there is either no or at most, comparatively little, scope for s 53. On the other hand, s 43 applies only in cases where there is, aliunde, a civil liability in relation to the fire, then there is comparatively little ground covered by s 43 which would not also be covered by s 53.
[66] Section 46B of the FSA, which relates to grants and expenditure from the Rural Fire Fighting Fund is also potentially relevant. Section 46B(1)(b) provides that the first respondent:
… shall expend money from the Rural Fire Fighting Fund to meet the cost of legal proceedings taken by the Commission or any Fire Authority against any person whom the Commission believes was responsible, by reason of arson or negligence or failure to observe permit conditions, for causing the lighting of any fire (being a fire in respect of which a grant has been paid under paragraph (a)) or for permitting or causing any such fire to become out of control. (emphasis added)
[67] Section 46B (set out above) of the FSA further muddies the waters in respect of the legislative intention as to the nature of liability for causing a fire. It seems to restrict the spending of money from the Rural Fire Fighting Fund to reimbursing the cost of legal proceedings against people the first respondent believes were responsible for causing the fire “by reason of arson or negligence or failure to observe permit conditions”. This particular wording seems to anticipate that cost recovery proceedings will only be bought against a person whose deliberate action (arson) or negligence (including failure to observe permit conditions) in the lighting of a fire or permitting it to become out of control has resulted in loss.
[68] In circumstances where s 43 of the Act anticipates liability without deliberate or negligent action, it is difficult to see why the ability to spend funds from the Rural Fire Fighting Fund on legal proceedings should be limited in this way. This ambiguity adds to the confusion about Parliament’s intention in relation to s 43.
[69] There is little in the broader purpose of the Act that assists in identifying the Parliamentary intention behind s 43. The long title describes the purpose of the Act as being to:
… consolidate and amend the law relating to the safeguarding of life and property by the prevention, detection, control, restriction, suppression and extinction of fire in forest and rural areas and other areas of vegetation.
[70] There is no written evidence of the legislative intent statutory purpose behind the imposition of levies and other cost recovery mechanisms. In Parliament in 1977 there was no discussion around the principles of strict liability in relation to the Bill.
The only comment by Parliament was by the Honourable Venn S Young in introducing the Bill for its first reading. He said:29
Under clause 43, which is new, a fire authority should try and recover its fire fighting costs from the person responsible for a fire before it imposes a levy.
[71] The 1977 Act was repealed on 1 July 2017 and the provision for recovery of costs from a responsible party has not been carried through into the new Fire and Emergency New Zealand Act 2017. In the first reading of the Fire and Emergency New Zealand 2017 Bill the Honourable Peter Dunne stated:30
The Bill removes cost recovery for rural fires and establishes an infringement notice scheme that will be designed to address low level offending. These updated offences and penalties provisions will be supported by a comprehensive compliance and enforcement strategy that will help the new organisation and the public to encourage compliance and will make clear the penalties for unsafe behaviour. (emphasis added).
[72] Parliament, in the first reading of the 2017 Bill, acknowledged the recovery regime as it existed in the 1977 Act was difficult to ascertain and manage across urban and rural fire services.31
Analysis
[73] The New Zealand cases which have interpreted s 43 have clearly held that liability under the section is not dependent upon negligence or any other recognised form of civil liability.32
[74] The cases have also established that in terms of “causation” there is a
difference between the concepts of legal accountability and being physically responsible for the escape of a fire.33
29 (17 June 1977) 411 NZPD 777–778.
30 (5 July 2016) 715 NZPD 12447.
31 (5 July 2016) 715 NZPD 12453–12454.
32 Tucker, above n 6; Attfield, above n 15.
33 Tucker at [42(2)].
[75] As the appellant acknowledged, there can be two or more causes of an event which leads to a fire in a rural area.34 The real question for this case is how to identify what was the cause of the fire for the purpose of liability under s 43.
[76] The Court in Tucker acknowledged that “issues of causation cause exquisite difficulty for the Court”.35 The Court also acknowledged that there were marginal cases which did not fall within the various rules of thumb that had been developed and William Young J concluded “in the end, Judges are often driven to take refuge in unarticulated considerations of ‘common sense’”.
[77] In trying to identify a “common sense” approach to causation in the context of s 43 liability, William Young J in Tucker drew heavily on the reasoning in the Empress case.36
[78] Unlike Tucker, Empress dealt directly with the situation involving the deliberate act of an unrelated third party. The context was not one of civil liability but of the criminal offence of causing any poisonous, noxious or polluting matter to enter any controlled waters.37 The Empress Car Company had maintained an oil tank on its premises. A tap on the tank was turned on.38
[79] Although there was a bund surrounding the tank to contain spillage, the company had overridden the protection afforded by the bund by fixing an extension pipe to the outlet of the tank so as to connect it to a drum located outside the bund. There was no lock on the outlet from the tank.
[80] In an attempt to apply the concept of “common sense” in a principled way,
Lord Hoffman articulated a distinction between the ordinary and extraordinary: 39
34 See for example Empress, above n 14, at 36A.
35 Tucker at [44].
36 Tucker at [47]–[61].
37 Tucker at [48] citing Empress, above n 14, at 25H. As discussed below at [120] the actions of third parties have been treated differently in the context of criminal strict liability as compared with civil strict liability.
38 Empress at 36E. Lord Clyde thought that this had “probably” been done by a member of
Empress’ staff but said that it could also have been an intruder.
39 Empress at 36B.
If the defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things, a matter of ordinary occurrence, it will not negative the causal effect of the defendant’s acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, or be open to the justices to hold that the defendant did not cause the pollution.
[81] The Court also added:40
The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in the area.
[82] Lord Clyde used a slightly different formulation of words in addressing the same question when he said:41
In deciding whether some particular factor has played so important a part that any activity by the defendant should be seen as entirely superseded as a causative element, it is not a consideration of the foreseeability, or reasonable foreseeability, of the extraneous factor which seems to me to be appropriate, but rather its unnatural, extraordinary or unusual character.
[83] In adopting the language used in Empress, William Young J in Tucker said that the issue of causation:42
falls to be considered within the legal frame or context provided by the Forest and Rural Fires Act. … The paradigm cases which the legislature would have had in mind when s 43 was enacted involved deliberately lit fires
… I recognise that this does not mean that the scope of s 43 is necessarily restricted to deliberately lit fires. It is, however, I think a relevant
consideration in determining where to draw the causation line.
[84] William Young J did not think that s 43 was confined to cases of farmers deliberately lighting burnoff fires although he appeared to indicate that some form of deliberate action in lighting the fire is required. An example of what, other than a fire deliberately lit by a farmer, might ground liability under s 43 he gave was that of
a rural picnicker who lit a fire which got out of control.43
40 At 36C.
41 At 36G.
42 Tucker, above n 6, at [55].
[85] William Young J analysed the situation where a fire was not been deliberately lit by the person said to have caused it. He clearly saw the scope for liability in this situation as being more circumscribed than the case relating to a farmer (or picnicker) deliberately lighting a fire which then gets out of control. He held:44
It follows from what I have already said that negligence or other breach of legal duty is not a pre-requisite to liability under s 43(1). On the other hand, it stands to reason that a plaintiff in a claim based on s 43(1) will be reasonably well placed to prove causation where the outbreak of fire arose in circumstances where the person who caused the outbreak was negligent or otherwise in breach of a legal obligation. So a farmer who mows a paddock known to be stony and whose mower strikes a stone which in turn produces a fire will probably be held (indeed without difficulty) to have caused that fire. Such a farmer could fairly be regarded as being “responsible for” the fire. Further, imposing liability under s 43 on such a person also seems to me to be consistent with the underlying policy of the legislation.
[86] William Young J also phrases this differently a little later in his decision when he concludes by saying:45
On the approach which I have adopted s 43(1) is likely to apply so as to impose liability upon any person who deliberately starts a fire or who causes a fire through negligence or other breach of illegal obligation. In cases where a person causes fire accidentally but without negligence (or other breach of legal obligation) causation is likely to be difficult to establish. This seems to me to be consistent with likely intentions of Parliament when s 43 was enacted.
[87] Having identified a different approach to the situation where a fire had been deliberately lit by the person said to have caused it on the one hand and, on the other hand, a fire which started accidentally without negligence or other breach of obligation on the other, William Young J applied the ordinary/extraordinary test articulated in Empress. He has expanded upon that test by introducing the concept of a sequence of events being “unusual”. “Unusual” is a less rigorous standard than
“extraordinary”. He said:46
The concatenation of events which flowed from that and produced the fire would appear to me to have been unusual in the sense that a person who drives a properly maintained and inspected truck and trailer unit would not normally expect thereby to start a roadside fire. This concatenation of events must be categorised (given the speech of Lord Hoffman) as being either:
44 At [59].
45 At [66].
1 a “normal fact of life” or “in the general run of things a matter of ordinary occurrence”; on the one hand or
2 “extraordinary” on the other.
He chose to categorise the circumstances of the Tucker fire as “extraordinary”.
[88] The District Court Judge below in Tucker had come to the opposite conclusion on the same facts. William Young J explained how this had occurred by saying:47
I see s 43 therefore as having a narrower purpose than the learned District Court Judge did. This in turn has coloured my approach to the causation issue. I note as well that Parliament, in s 46B(1)(b) of the Fire Service Act plainly had in mind proceedings under ss 43 and 53 of the Forest and Rural Fires Act. That section rather suggests a later view on the part of the legislation that those sections impose responsibility on anyone who is:
[R]esponsible by reason of arson or negligence or failure to observe permit conditions for causing the lighting of any fire … or for permitting or causing any such fire to become out of control.
[89] I agree with the “narrower purpose” of s 43 identified by William Young J and with the differentiated approach this resulted in when considering circumstances where a fire was not deliberately lit by the person said to have caused it. I also agree that, in those circumstances, in the absence of an allegation of negligence or other breach of legal obligation, it would be difficult to impose liability.
[90] It is in this context that the “unarticulated” concept of “common sense” needs to be applied and the analysis of what might be a “normal fact of life” or “in the general run of things a matter of ordinary occurrence” on the one hand or “unusual” or “extraordinary”, on the other hand, needs to be analysed. The need to apply the “ordinary/extraordinary” analysis within the context of the “narrow purpose” of s 43 identified by William Young J seems to have been overlooked by the learned Judge
below and in the submissions of counsel for the respondents on appeal.48
47 At [62].
48 I acknowledge that, at [36] and [89] of New Zealand Fire Service Commission v Marlborough Lines Ltd, above n 10, the Judge referred to the point made by the appellant that William Young J had identified the purpose of s 43 as relating to the consequences of deliberately lit fires, but nowhere in the judgment does he seem to have considered how a finding of liability in a fact situation not involving a deliberately lit fire is consistent with the narrow legislative purpose of s 43 specifically identified by William Young J.
[91] It will not be enough for the respondents to point to particular components of the sequence of events which led to the fire in the present case and say that they are not, in themselves, “unusual” or “extraordinary”. If that had been the case, then the act of driving a properly maintained and inspected truck and trailer unit down a highway could not be said to be “unusual” or “extraordinary” in itself and Tucker would have been decided differently. It is clearly the whole combination of events that needs to be considered. In the present case this includes things like the allegation by the appellant that the actual tree feller acted contrary to the appellant’s advice regarding the felling of trees in the vicinity of power lines.
[92] It is not possible to apply the ordinary/extraordinary analysis set out by William Young J without also having regard to his identification that s 43 had its focus on deliberately lit fires. The case of Attfield is clearly distinguishable. Unlike Attfield, the respondents have chosen not to allege negligence or other fault on the part of the appellant. Given that there is also no allegation that this fire was deliberately started by the defendant, and the narrow purpose of s 43, the scope for a finding of liability must be very limited.
Summary judgment principles
[93] I now turn to whether this case was suitable for summary judgment in the District Court. In support of the strike out application the appellant emphasised that the statement of claim was lacking in particulars.
[94] In oral argument Ms Forrest referred by analogy to the necessity for an informant under the (now) Health and Safety at Work legislation to particularise the steps which it alleges that a defendant could and should have taken as part of the charging document and implied that the statement of claim here was deficient
because it failed to do that.49
[95] The respondents’ reply to this was to say that “liability is imposed under
section 43 irrespective of whether the person causing the fire is otherwise civilly
responsible for those costs or at fault”. In oral argument counsel for the respondents
49 Worksafe v Talley’s above n 16.
indicated that if the appellant had not been satisfied with the detail given in the pleadings the proper course was not to apply to strike out but to apply for further particulars. The relevant paragraphs in the statement of claim provided:50
10. The [appellant], by operating the Power Lines, produced the situation in which a fire could occur.
11. The sequence of events that resulted in the Power Lines causing the Fire (as pleaded in paragraphs 4 and 5 above) was an ordinary and not extraordinary occurrence.
12. The Commission and the Fire Authority are entitled to recover the fire costs from the [appellant] pursuant to section 43 of the Forest and Rural Fires Act as a party who caused or was responsible for the fire.
[96] There is no doubt that these pleadings are sparse even to the point of being cryptic.
[97] A similar pleading style had been adopted by the plaintiffs in Attfield. The
Judge in that case had said:51
The form of pleading is unusual and that form of pleading is largely the reason why the second defendant has applied to strike the pleadings out.
[98] It is perhaps unsurprising that the same “unusual” form of pleading in the present case has also generated an application to strike out. The cause of action pleaded in the statement of claim can only be understood if the reader is familiar with the concepts of ordinary and extraordinary used to interpret the concept of causation in Tucker.
[99] However, it is clear that the appellant understood that context, as, in a similarly briefly worded statement of defence, the appellant said:52
It denies paragraph 11 and further says that the [appellant] is not responsible for causing the fire and the sequence of events that caused the fire were an extraordinary occurrence which the [appellant] is not liable for under the Forest and Rural Fires Act.
50 Statement of claim, 27 April 2016 at [10]–[12].
51 Attfield, above n 15, at [5].
52 Statement of defence, 17 June 2016, at [11].
[100] As discussed above, in the context of a fire which was not deliberately lit by the appellant, the scope for any liability, where negligence or other fault is not alleged, is very narrow. However I cannot conclude that it is non-existent and that the respondents’ cause of action cannot possibly succeed.
[101] If the appellant wishes to obtain details of the particular acts or omissions which the respondents rely on as establishing liability, then a formal request for such particulars should be made. I note that in Attfield, although the breach of the obligation in s 43 was pleaded as founding the cause of action, alternative theories of causation were pleaded. In relation to the allegation of negligence, particular details were specified. There would seem to be no reason in the present case why such particulars should not be provided.
Factual findings
[102] In the hearing the disputed factual claims were argued by both parties. The appellant criticised some factual findings made by the District Court Judge. These particularly relate to the possible additional steps which the respondents argued and the District Court Judge agreed were available to the appellant, Marlborough Lines. At [96] the District Court Judge said:
The [respondents] suggest that there are several steps that Marlborough Lines could have taken to avoid, or limit the risks. More particularly, they suggest that they could have moved the lines away from wooded areas, or undergrounded the lines. My instinctive reaction to such a suggestion, is that it would place too higher operational, or financial burden on Marlborough Lines.
[103] The reason that the Judge had to make an “instinctive” decision on this is because this was a summary judgment application and it was conducted on affidavit evidence only, without cross-examination.
[104] At [97] the District Court Judge said:
The [respondents] do, however, raise other steps, which arguably are not as onerous. In particular, they suggest that Marlborough Lines could have:
(a) maintained clearances between vegetation and lines equipment; and
(b) utilised fault protection mechanisms to cut power to the line and prevent relivening where there is an increased risk of fire.
[105] In this appeal, the appellant has criticised these findings as made with the benefit of hindsight. The respondents’ reply was that the findings were valid but alternatively to suggest that such factual disputes should be determined at trial with the benefit of full discovery and full evidence. The respondent said there were material facts which needed to be ascertained by the Court and which could not confidently be concluded from affidavits.
[106] It is understandable that the Court below would have commented on the factual allegations, particularly those raised by the respondents as founding liability even in the absence of negligence or other fault.
[107] However, it was always going to be impossible for the Court, on a summary judgment application, to fully analyse the competing factual contentions. In the absence of comprehensive evidence, the Court cannot be criticised for making the factual findings it did.
[108] The appellant emphasised, both in the District Court and on appeal, the contents of the Electricity (Hazards from Trees) Regulations, pointing out that the tree in question was beyond the distance where those Regulations conferred any legal authority on a lines company such as the appellant to compel an owner to trim or fell.
[109] The fact that Parliament has chosen to limit the ability of lines companies to compel a property owner to trim or remove trees is likely to be relevant when assessing the scope of the lines company’s obligations in the context of s 43.
[110] As I understand it, the appellant was authorised by statute to supply electricity. The appellant may be able to argue that, just as is the case in relation to a claim of nuisance, that their statutory authorisation is relevant to the scope of
liability. The learned authors of The Law of Torts in New Zealand, in the context of a discussion about nuisance said:53
Where Parliament has authorised the defendant to undertake a particular activity that authorisation will normally carry with it an immunity from liability for any nuisance created as an inevitable consequence of carrying out that activity. In such circumstances it is presumed, in the absence of express provision to the contrary, that Parliament intends private property rights of individual citizens to be subordinated to the wider public interest.
[111] This Court on appeal is in no better position than the District Court was, on a summary judgment application, to come to a concluded view as to the reasonableness of the appellant’s risk assessment in relation to the tree and the consequent impact on liability.
Non-natural user
[112] There was some debate during the appeal as to whether the reticulation of electricity through power lines was a non-natural use of land. Given that the issue of whether there has been a non-natural use of the land is a feature of a claim in nuisance and no such claim has been advanced here it is difficult to see its relevance but because it is referred to in both the decision under appeal and counsel’s submissions I will make some comments on it. The District Court referred to the decision in New Zealand Timberlands Ltd v Tasman Electric Power Board as an instance where the Court had found that the carrying of electricity through power
lines was a non-natural use of land.54
[113] The respondents, in their written submissions, also thought that there was some relevance in whether or not the conveyance of electricity was a “non-natural” use for the purposes of a Rylands v Fletcher claim.
[114] Whether the District Court decision in New Zealand Timberlands Ltd, decided some 30 years ago, is strong authority for the proposition that reticulation of
electricity today is a non-natural use is to be doubted:55
53 Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Thomson Reuters, Wellington,
2013) at 548.
54 New Zealand Fire Service Commission v Marlborough Lines Ltd, above n 10, at [76(c)].
55 New Zealand Timberlands Ltd v Tasman Electric Power Board DC Nelson 1/89, 30 July 1991 at
12.
There have been cases where electricity supply carried in bulk has been held to be a non-natural user [sic]. I am satisfied that is the position in this case but having considered the submissions of counsel and the provisions of s 53(1) of the Electricity Act 1968 I am not satisfied that a claim under the principles in Rylands v Fletcher (supra) can be sustained in this case.
[115] Section 53(1) of the Electricity Act 1968 provided immunity from liability for an electrical supply authority for loss resulting from the reticulation of electricity other than where negligence had been established. In declining to find liability under the rule in Rylands v Fletcher, the Court seemed to have been influenced by the fact that the Electricity Authority was acting under statutory authorisation. The
Court referred to The Law of Tort in Local Government where it stated:56
…where a local authority has committed an act under a mandatory statutory obligation then, whether or not there is a retention of nuisance liability clause, there is no liability in nuisance of what has been done was expressly required by the Act to be done or was reasonably incidental thereto and was done without negligence.
[116] It cannot safely be assumed that the concept of “non-natural user” is the same some 30 years after Timberlands.
[117] In Easton Agriculture Ltd v Manawatu–Wanganui Regional Council,57 Kós J discussed changes to the application of the law in Rylands v Fletchers58 and, after recounting the Court’s retreat from Rylands v Fletcher, he suggested that the time may have come to reconsider whether that rule should apply to “commonplace
utilities” at all.
[118] In the present case the concept of non-natural user is unlikely to assist the Court in identifying the scope of liability under s 43. That is so for a number of reasons: firstly, there is no pleading that liability under the rule in Rylands v Fletcher (or negligence or nuisance) arises. Secondly, the courts’ views in relation to Rylands v Fletcher as a cause of action, and in particular, the utility of the concept of “non-
natural user” have changed significantly as society has evolved.59
56 M Cairns The Law of Tort in Local Government (2nd ed, Shaw & Sons, London, 1969) at 47.
57 Easton Agriculture Ltd v Manawatu–Wanganui Regional Council HC Palmerston North, CIV-2008-454-031, 7 September 2011.
58 At [110].
59 See the discussion of the development of the rule in Rylands v Fletcher in Transco plc v
Stockport Metropolitan Borough Council [2003] UKHL 61; [2004] 2 AC 1.
[119] For over a hundred years, the courts have limited the application of the rule in Rylands v Fletcher in circumstances where the thing which escaped was something beneficial to the community. Lord Moulton in the Privy Council case of Rickards v Lothian said:60
It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community. (emphasis added)
[120] In civil cases of strict liability (as opposed to criminal cases like Empress), the courts have been reluctant to impose liability where the actions of third parties are involved. In Transco the reluctance to extend civil strict liability to the acts of third parties was specifically contrasted with the criminal situation:61
By contrast, acts of third parties and natural events are not defences to the strict criminal liability imposed by s 85(1) of the Water Resources Act 1991 for polluting controlled waterways unless they are really exceptional events: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.
[121] A number of the speeches in the House of Lords in Transco recognised that what is, from time to time, classified as a non-natural user of land is reflective of the norms and expectations of the day. Lord Hoffmann said:62
It remains, however, if not to rationalise the law of England, at least to introduce greater certainty into the concept of natural user which is in issue in this case. In order to do so, I think it must be frankly acknowledged that little assistance can be obtained from the kinds of the user which Lord Cairns must be assumed to have regarded as “non-natural” in Rylands v Fletcher itself. They are, as Lord Goff of Chievely said in the Cambridge Water [1994] 2 AC 264, 308, “redolent of a different age.”
[122] In his speech, Lord Walker also acknowledged the change in perception of
what might amount to a “non-natural” user of land. He said:63
Since the middle of the 19th century many activities which were once regarded as unusually dangerous (such as running railways, which no longer use steam locomotives fuelled by coal manually shovelled into the fire box) have become common place. Other activities unknown in the 19th century (including all those connected with the internal combustion engine) have
60 Rickards v Lothian [1913] AC 263 at 280.
61 Transco, above n 59, at [32].
62 At [44].
63 At [107].
come on the scene, being regarded first as dangerous innovations (see
Musgrove v Pandelis [1919] 2 KB 43) but now as basic necessities.
[123] In Australia, the courts no longer recognise the rule in Rylands v Fletcher as a separate ground for liability at all. In the case of Burnie Port Authority v General Jones Pty Ltd, Mason CJ said:64
… the rule in Rylands v Fletcher, with all its difficulties, uncertainties, qualifications and exceptions, should now be seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence.
[124] One of the reasons articulated by the majority of the High Court of Australia in rejecting the rule in Rylands v Fletcher was the difficulty of applying it to terms which were not defined. The majority said:65
The result is that the practical application of the rule in a case involving damage caused by the escape of a substance is likely to degenerate into an essentially unprincipled and ad hoc subjective determination of whether the particular facts of the case falls within undefined notions of what is “special” or “not ordinary”.
[125] The statements in these various cases provide the background to the observations of Kós J in Easton where, in relation to the rule in Rylands v Fletcher he said:66
It may well be time, however, to reconsider whether the rule should apply to commonplace utilities, such as water or sewerage. Particularly where their presence is obvious to adjacent landowners. It may be that Courts will eventually conclude that liability for the failure of such systems is dependent in all cases on proof of negligence.
Law and economics
[126] Counsel for the respondent in a final submission urged that I take a “law and economics” approach in answering the question of whether or not it could be said that the appellant had “caused” the fire for the purposes of s 43.
[127] The respondent had, in the District Court, filed an affidavit of an economist,
John Yeabsley. The District Court said that it had had no regard to Mr Yeabsley’s
64 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 at [43].
65 At [23].
66 Easton, above n 57 at [116].
evidence. I share the Judge’s significant reservations as to the objectionable nature of the evidence on the grounds that it purports to address the very question of law that the Court is required to decide.
[128] However, at a more fundamental level, even with a law and economics approach, the starting point is the purpose of the statute being interpreted. It is not an analysis that can be undertaken in a vacuum anymore than ‘common sense’ can be applied in a vacuum.
[129] This was recognised by the Supreme Court in the decision of Body Corporate No. 207624 v North Shore City Council [Spencer on Byron].67 After discussing issues of policy and the question of identifying whether a defendant was “someone most appropriately placed to take care in the avoidance of damage to the plaintiff”68
William Young J went on to state:69
Sometimes the policy considerations that arise are very legal in nature – so much so that perhaps they could be described as high level principles – and are often associated with the consistency or otherwise of the proposed duty of care with other aspects of the legal system. So, for example, where the proposed duty relates to the dissemination of reputational information, the Court will have to decide whether recognition of the duty would unacceptably cut across the law of defamation. In a statutory context the Court may well have to determine whether the imposition of a duty is inconsistent with the overall statutory scheme. (emphasis added)
[130] The Supreme Court also expressed the view that the courts are not often well placed to make policy decisions.
[131] William Young J said:70
The Courts are also required to address policy arguments of a different character. These relate to the broad, although usually unarticulated, question whether, from the viewpoint of society as a whole, a rule (which I will call Rule A) that there is a duty of care is better than a rule (Rule B) that there is no such duty (or vice versa). This is more awkward. The Court will be required to balance incommensurables, for instance, the personal predicament and needs of the plaintiff (which are likely to favour the
67 Body Corporate No. 207624 v North Shore City Council [Spencer on Bryon] [2013] 2 NZLR at
[297].
68 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd
[1992] 2 NZLR 282 (CA) at [231].
69 At [234] (citations omitted).
70 At [235] (citations omitted).
adoption of Rule A) as against the broader systemic and financial considerations (which may support Rule B). This tends to involve value judgments of a kind which Judges prefer to (although cannot always) avoid. As well, and perhaps more importantly, Judges are not well placed to assess competing policy argument.
[132] Therefore, even if Mr Yeabsley’s evidence could be redrafted so as to be admissible, in the absence of acknowledging and considering the statutory context, in particular what William Young J in Tucker identified as the narrow purpose of s 43, it is unlikely to be of assistance to the Court.
Disposition
[133] The answer to the two findings of the District Court that were challenged on this appeal are:
(a) The Judge was not wrong to reject the appellant’s claim that it could not have “caused” the fire for the purposes of liability under s 43 of the Forest and Rural Fires Act 1977. It is clear that any scope for liability, in a situation where negligence or any other form of fault is not pleaded and in a case that does not relate to a situation where the fire was deliberately lit, will be very limited. However, it cannot be said that there is absolutely no prospect of a finding of liability.
(b)In terms of the principles relating to an application for summary judgment by a defendant, as set out in the case of Westpac Banking Corporation v MM Kembla New Zealand Ltd,71 it cannot be said that the respondents’ claim is untenable. A judgment as to liability can only be properly arrived at after a full hearing of the evidence and cross examination.
[134] The pleadings for the respondents are unusually drafted and I anticipate the appellant applying for further particulars.
[135] When this matter is finally determined it will be important for the parties to
understand that inviting the Court to decide the matter on the basis of “unarticulated”
71 [2001] 2 NZLR 298 (CA) at [58]–[64].
concepts such as “common sense” or what might be “ordinary” or “extraordinary”
will be unhelpful unless regard is had to the context and purpose of the Act.
[136] Costs in relation to this appeal are reserved. My initial view is that, although the appeal has been unsuccessful, just as in the Attfield case, the nature of the pleadings has been a significant contributor to the fact that the appeal was brought.
[137] I invite counsel to attempt to resolve questions of costs between themselves but if they are unable to the respondents are to file submissions within 14 days with the appellant to have seven days to reply.
Churchman J
Solicitors:
Darroch Forrest, Lawyers, Wellington for Appellant
Chapman Tripp, Wellington for Respondents
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