The respondent, Susan Barron, has made a claim in the High Court for damages in excess of $1 million against a number of parties, including the appellants, Graham Stephens and Mary Stephens. Mrs Barron’s husband was initially also a plaintiff but he is now bankrupt, and the Official Assignee has discontinued the action from his point of view.
Mrs Barron had contracted a company associated with the Stephens, Auckland Carpet Steam ‘N’ Dry Cleaning Limited (ACSD), to undertake carpet cleaning and prophylactic insect spraying in the house she owned with her husband. An employee of ACSD, Mr Hutton, undertook the spraying, but, it is alleged, used the wrong spray substance. The allegation is that the substance used was highly toxic and had a catastrophic effect on the home, causing extensive damage and making it an unhealthy environment for its occupants. ACSD has now been liquidated.
A number of defendants, including Mr and Mrs Stephens, applied in the High Court for summary judgment or for orders striking out the claims against them. Some of the other defendants were partially successful in the High Court. However, Associate Judge Doogue refused to grant summary judgment to the Stephens.[1] They appeal against this decision. They argue that there is a complete answer to all of Mrs Barron’s pleaded claims against them. None of the other defendants is involved in the present appeal. Mr Hutton is the first defendant but has taken no steps in the proceeding and ACSD has not been sued, due to its liquidation. The other defendants are the insurers of both Mr and Mrs Stephens and Mrs Barron, and parties involved in conducting tests aimed at establishing what substance was sprayed in the home by Mr Hutton.
Issues
[1]Barron v Hutton [2012] NZHC 2183. Although the judgment says the Judge also refused to strike out the claim, counsel were agreed that this was an error: only summary judgment had been sought.
The application for summary judgment by Mr and Mrs Stephens was made after the filing of the statement of defence. Leave to file the application was therefore required under r 12.4(3) of the High Court Rules. An application for leave was made but, having found the application for summary judgment itself failed, the Associate Judge did not consider the leave application. Mr and Mrs Stephens did not appeal against the failure to grant leave, but after hearing argument, we gave…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Stephens v Barron [2014] NZCA 82
Case
[2014] NZCA 82
Decision Date
CaseChat Overview and Summary
Graeme Trevor Stephens and Mary Stephens (appellants) appealed against a decision of the High Court which refused their application for summary judgment in relation to a claim brought by Susan Patricia Barron (respondent). The respondent had brought a claim against the appellants for damages in excess of $1 million, relating to an insect spraying operation carried out by an employee of Auckland Carpet Steam 'N' Dry Cleaning Limited (ACSD), a company associated with the appellants. The appellants argued that the respondent could not establish a duty of care and that there was insufficient evidence to prove that the spray caused the damage. The Court of Appeal was required to determine whether the appellants had established that the claim could not succeed on any view of the evidence, and whether there was no genuine issue for determination. The Court found that the issues of foreseeability, proximity and policy considerations raised by the appellants were factual issues that needed to be determined at trial. The Court also found that the inability of the respondent to prove what substance was sprayed in her home was not fatal to her claim. The appeal was dismissed, with the appellants ordered to pay the respondent’s costs of the appeal.