Work v IAG New Zealand Limited
[2025] NZCA 323
•18 July 2025 at 11:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA27/2024 |
| BETWEEN | PETER ALLAN WORK AND ROBYN MARGARET WORK |
| AND | IAG NEW ZEALAND LIMITED |
| Hearing: | 8 May 2025 |
Court: | Katz, Hinton and Whata JJ |
Counsel: | G J Jones, J Heatlie, J M Wood and R M Allison for Appellants |
Judgment: | 18 July 2025 at 11:00 am |
JUDGMENT OF THE COURT
AThe application to adduce further evidence is declined.
BThe appellants must pay the respondent costs for a standard application on a band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
This is an application for leave to adduce further evidence on appeal.[1] The appellants, Mr and Mrs Work, were unsuccessful in the High Court, after bringing a claim against IAG New Zealand Ltd (IAG) for insurance cover after a house fire.[2] The proposed evidence relates to the cause of the fire and whether Mr Work was responsible for it.
[1]Court of Appeal (Civil) Rules 2005, r 45.
[2]Work v IAG New Zealand Ltd [2023] NZHC 3428 [judgment under appeal].
For the evidence to be admissible, it must be fresh, credible and cogent.[3]
The key facts
[3]Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193, cited with approval in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].
Mr and Mrs Work owned a vacant rental house in Wellington (the Property). Late in the evening of 22 November 2013, the Property was damaged by fire. The fire started in a converted bedroom on the ground floor. In the room was a standing lamp, a computer, a web camera, a desk lamp, a printer and some boxes full of papers. On the night of the fire, Mr Work (a mechanical engineer) was in Whanganui, where he lived. That evening Mr Work gained remote access to the computer at the Property and, at 10.48 pm, he sent a print command to it. Because of an electrical mechanism created by Mr Work, this caused the standing lamp to energise. Within 12 minutes, the Property was on fire. Mr and Mrs Work claimed indemnity insurance. IAG rejected their claim.
Mr Work’s mechanism
Mr Work’s mechanism for energising the desk lamp was a key feature of the High Court case and of the application before us. We adopt the description of this mechanism given by Isac J as follows:[4]
[52] The elaborate mechanism used by Mr Work to energise the standing lamp while he was in Whanganui on the night of the fire is not in dispute.
[53] Having previously had the electricity supply to the house disconnected (given it was vacant), he reconnected power to only two circuits leading to the converted garage. He had set up a desktop computer in the alcove under the stairs which he connected to a printer and webcam. The webcam was pointed toward the desk lamp sitting on the bread cutter.
[54] The Wellington PC was remotely accessible to Mr Work using a software application called LogMeIn. The application allows users to access a computer (the host computer) and perform all the same functions as they could when sitting in front of it from another remote computer. This includes operating and controlling devices connected to the host computer such as web cameras and printers.
[55] Evidence from a forensic computer examiner, Mr Jorgensen, indicates that Mr Work’s pattern of use of LogMeIn was very casual. The free software version was installed on the Wellington PC on 28 August 2009 and used on a routine basis until the end of that year. After 2009, use stopped completely until the updated version—requiring a paid subscription—was installed on the Wellington computer on 3 November 2013, less than three weeks before the fire.
[56] In the manual feed tray of the printer, Mr Work had inserted a piece of paper to which he had attached a folded strip of Sellotape approximately 50–75mm long. The strip extended into a homemade powerboard made by Mr Work, which was plugged into a wall socket, and into which the standing lamp’s cable was plugged. The powerboard had been constructed from electrical parts Mr Work had at home including the electric cord taken from a steam mop. It was encased in a wooden box the lid of which Mr Work had unscrewed, enabling him to gain access to the electrical switches inside. With one of the switches in the “on” position, Mr Work was able to insert the Sellotape strip between the two electrical connectors inside the switch, breaking the electrical circuit.
[57] Then at 10:48 pm on the night of the fire, Mr Work used his laptop from Whanganui to remotely log in to the Wellington PC and executed a print command. This much is clear from the LogMeIn file entries recovered from the Wellington PC drive after the fire. The print command caused the paper in the printer tray to feed through the printer, pulling the Sellotape strip out from between the contacts of the switch within the homemade powerboard, completing the circuit and enlivening the standing lamp.
The High Court judgment
[4]Judgment under appeal, above n 2 (footnote omitted).
The key issues at trial were:[5]
(a)Did Mr and Mrs Work act dishonestly when making their claim?
(b)Was the fire deliberately lit and if so, was Mr Work responsible for the fire?
(c)Did IAG act in good faith toward Mr and Mrs Work during its investigation?
(d)If IAG breached the contract of insurance, what was the appropriate measure of damages Mr and Mrs Work were entitled to recover?
[5]At [3].
The Judge found in the affirmative on the first three issues.[6] A finding was not necessary on the last.[7]
[6]At [154], [302] and [354].
[7]At [355].
The application for leave to adduce further evidence relates to the second issue. In the High Court, that issue was addressed in three subparts:
(a)What started the fire?
(b)Was there an innocent scientific explanation?
(c)Did Mr Work deliberately start the fire?
On the first sub-issue, three alternative causes of the fire were advanced:[8]
(a)the actions of an intruder or arsonist other than Mr Work;
(b)accidental electrical ignition caused as an unintended by-product of Mr Work’s mechanism; or
(c)a fire which Mr Work deliberately caused by use of the mechanism.
[8]At [172].
The Judge found:[9]
[206] … the fire was not caused by the deliberate or accidental actions of a third party or former tenant. I reject the plaintiffs’ evidence that items located in the house were introduced or left by an intruder. I find they were responsible for leaving those items as they were found. As such, there is no credible evidence to support the theory that an intruder entered the home. I am also well satisfied that neither [of the Works’ former tenants] are responsible for or in any way connected to the blaze. Neither had a plausible motive for doing so. It is clear that the cause of the fire was Mr Work’s mechanism. This conclusion is inevitable because the proposition that the fire was unrelated is reliant on a highly improbable sequence of coincidences in which an unknown intruder was required to:
(a)set the fire in the very short window between Mr Work sending the print command at 10.48 pm and before the fire was observed by witnesses at approximately 11.00 pm;
(b)set the fire not only in the same room but in the same location as Mr Work’s mechanism;
(c)avoid being seen entering or leaving the property, including (as I have found) by Mr Work on the webcam; and
(d)gain entry to a secure property without breaking in, and left the house in a secure state.
[9]Footnote omitted.
Having found that Mr Work had caused the fire, the Judge turned to examine whether there was an innocent scientific explanation for it. This required, among other things, examination of expert evidence on the origin and cause of the fire. The evidence for IAG was provided by three experts: Mr Russell Joseph, a fire investigator; Mr David Ramsay, an electrical engineer; and Mr Simon Cox, a metallurgist. For Mr and Mrs Work, the expert evidence was provided by Mr Marnix Kelderman, a fire investigator and Dr Jonathan Smith, a materials scientist with a background in fire investigations.
The evidence sought to be adduced on appeal concerns what is called “arcing”. As the Judge explained:[10]
[209] Examination of the standing lamp revealed that the fine strands of copper conductors forming the electrical cord had been separated by an arc event caused by a short circuit. As Mr Ramsay explained, when two conductors which have a voltage difference between them make contact, a large current flows through the point of contact causing melting of the metal—in this case copper—around that point. Magnetic forces tend to push the two conductors apart, and the liquid bridge between them is broken. Electric breakdown across the gap created is then visible in the form of an arc. After such an event the conductors exhibit damage which what is commonly known as an “arc bead”. In the present case, arc beads were identified at the ends of the severed conductors in the lamp cable, which occurred because the live and neutral conductors (the only conductors in the cable) had made contact.
[210] Evidence of arcing in electrical circuits is common following fires. It can either occur prior to ignition, in which case it is the cause of a fire, or it can be the result of fire impingement on the cord insulation, which as it melts creates a short circuit between conductors. In the latter case the arc is referred to as a “victim” of the fire.
[10]Footnote omitted.
The Judge explained the respective theories of the experts in the following terms:[11]
[211] Mr Ramsay’s evidence is that there is a well-documented phenomenon known as arc tracking through carbonised insulation, which occurs when cable insulation is damaged due to long term effects such as compression or dampness entering a cable due to damaged insulation. Over time this damage results in carbonisation of the insulation, with “arc tracking” across the carbonised path between the conductors. Eventually arc tracking may result in ignition of the insulation. However, this is a very different process from arcing due to fire impingement on insulation causing contact between conductors. Mr Ramsay concluded there was no observable evidence to indicate arc tracking in the present case. Further, the location of the arcing was not consistent with the insulation damage needed to precipitate arc tracking.
[212] Two black masses comprising what was left of the standing lamp’s light fittings and sockets were also recovered after the fire and subject to examination by the experts. There is no physical evidence arising from these remnants to suggest the fittings or sockets failed. In addition, the printer recovered from the fire debris contained unburnt paper inside its paper tray which, together with other preserved internal parts, suggests it too was not the source of ignition.
[213] Despite this absence of physical evidence, both Mr Kelderman and Dr Smith for the plaintiffs posited a series of possible accidental causes of the fire connected to Mr Work’s mechanism which, in their opinion, could not be excluded. These were the potential for an arc event on the cable of the standing lamp caused by damaged insulation, the failure of an overheated bulb and fitting in the standing lamp, and the ignition of remnants of Sellotape said to have been found after the fire on a drive roller within the printer.
[11]Footnote omitted.
These innocent explanations were rejected by the Judge. He found:
[217] Dr Smith’s (and Mr Kelderman’s) speculation on potential causes do not in my view create a serious doubt that the fire was the result of an innocent, accidental electrical cause related to Mr Work’s mechanism. There is no evidence the fire was caused by the ignition of charred Sellotape within the printer, or an overheated exploding light fitting. In keeping with the scientific approach required by NFPA-921, I consider that these causes are based on an absence of evidence and ought to be rejected as invalid hypotheses incapable of verification. As far as the evidence of an arc event on the standing lamp’s conductors is concerned, I find it is far more likely that this was the result of fire impingement on the insulation from an established fire, as opposed to a credible means of ignition.
[218] I found the evidence and opinions of Messrs Ramsay, Joseph and Cox preferable. As they noted, the height of the lamp above any combustible material meant that hot shards of glass would have cooled too much to act as a source of ignition before coming into contact with combustible material on the floor. Further, the absence of any evidence that the bulb or light socket failed excludes it as a credible cause. Mr Ramsay, an experienced electrical engineer familiar with fire investigation, rejected the contention absolutely.
And further:
[221] Turning to the arc event on the standing lamp’s cord, it is clear it must have been extraordinarily brief because it failed to trip a circuit breaker that formed part of the circuit carrying electricity to the lamp. While molten copper has a temperature of at least 1083°C, if the arcing occurs very quickly it is unlikely to eject sufficient molten copper needed to ignite a combustible item such as paper. Mr Cox helpfully summarised why he and Mr Ramsay considered arcing on the standing lamp conductors is unlikely to have been the cause of the fire in this way:
[W]e know that the circuit breaker did not trip when that short circuit occurred because the power supply to the [powerboard] remained energised. From that we can say it therefore follows that there would not have been enough energy dissipated during that short circuit for a combustible material to have been ignited.
[222] I accept this view.
[223] The matters raised by Mr and Mrs Work and their experts do not create in my mind any meaningful doubt that the fire was the result of an accidental electrical cause. I dismiss them as highly improbable.
With no innocent scientific explanation of the fire, the final issue to be resolved was whether Mr Work deliberately started the fire. Mr Work claimed that he set up the device as a prank and the accidental electrical ignition was the unfortunate unintended by product of this prank. The Judge rejected this explanation. The key features of the evidence that led him to conclude that Mr Work deliberately set fire to the Property are helpfully summarised as follows:[12]
(a)He had a clear and strong motive to do so. His family was under significant financial pressure, he was unable to sell the property or remediate it in order to do so, and he had insufficient income to continue meeting household expenses.
(b)Using the mechanism provided Mr Work with a powerful alibi, as long as it was not discovered by Police and IAG investigators. This explains why he used the mechanism in the first place. It also explains why Mr Work subsequently and deliberately withheld the existence of the mechanism from both Police and IAG. I consider the reason he did this was that he knew the mechanism itself was a strong indicator that he was responsible for the arson.
(c)Once it became apparent that the game was up on the mechanism, Mr Work needed to come up with an innocent explanation for it. He was, after all, a suspect in an ongoing Police investigation, quite apart from any hope of recovery of insurance moneys. Mr Work came up with the “prank” for the first time on 6 May 2014. Regrettably in proffering this false explanation he co-opted the rest of his family as witnesses to corroborate his account.
(d)Mr Work’s explanation for the prank is unbelievable and I reject it as a fabrication. This leaves a powerful, if not unavoidable, inference that the true purpose for the mechanism was to set fire to the house.
(e)The undisputed set-up of the room is highly suspicious, and consistent with Mr Work’s arson. He had the lamp in a bizarre location surrounded by boxes of combustible papers, and the computer set-up was clearly unusable for any legitimate purpose. In contrast to the rest of the house, the room appears to have been packed with combustible material placed in contact with or adjacent to the various electrical devices forming the mechanism.
(f)The printer which was essential to starting the fire was clearly in the alcove before the fire began. Even on Mr Kelderman’s measurements this means the lamp was too far away from the power source to have been in an upright position. The clear inference, consistent with the metallurgical evidence, is that the lamp stand was unscrewed by Mr Work before the fire and placed on a bed of combustible material with its top facing directly toward the alcove. The only plausible reason for this configuration is arson. Regardless, even if the lamp was upright, I am satisfied Mr Work deliberately started the fire.
The application
[12]At [301].
Mr and Mrs Work seek leave to adduce evidence of Mr Jordan Kane Statham, a registered electrical inspector, together with further evidence of Dr Smith. The proposed evidence is directed to the ability for an arc to cause the fire as a result of the dissipation of energy and the production of molten metal or a heated wire. The key finding this evidence seeks to challenge is recorded at [221] of the High Court judgment, noted above at [14] — namely that because the circuit breaker did not trip, the arc event was so short that there was insufficient energy and time to ignite the nearby combustible materials.
The proposed evidence
The proposed briefs from Mr Statham and Dr Smith together promote the following thesis:
(a)An alternative explanation for the evidence of arcing was not considered, namely that the circuit breaker failed to operate correctly, allowing the cable to remain energised while in a fault state.
(b)It is therefore not possible to rule out the occurrence of an arc event caused by electrical malfunction, leading to a highly energised cable or molten copper being ejected.
In Mr Statham’s evidence, he outlines three possible electrical malfunction scenarios that may have caused the fire:
(a)an arc fault causing a blow out, also known as an “arc flash”, with sufficient force to melt the copper which would then either be ejected or fall to the ground;
(b)an arc fault causing “contact point welding”, creating a high resistance weld between the conductors so they heat like an element through continued energisation of the cable; or
(c)“arc tracking”, whereby the electrical cable insulation degrades as a result of continuous electrical discharge, forming a conductive carbon path that can lead to insulation failure or short circuiting.
Given the age, make and potential condition of the circuit breaker in question, Mr Statham states it is highly likely that the circuit breaker failed to operate correctly, allowing the cable to remain energised in a fault state. Furthermore, manufacturing data shows that there can be a delay of up to 20 seconds between an arcing event and a circuit breaker tripping.
In his proposed further evidence, Dr Smith argues that ejected molten copper particles as a result of electrical arcing could well exceed the temperatures necessary to start a fire:
(a)Based on an assumed 2 mm arc bead, the energy required to heat and melt this amount of copper to 2000°C is 2.712 kW applied for at least 0.4 seconds.
(b)After falling 400 mm, the copper droplets would be approximately 600°C upon impact.
(c)The combustion of paper occurs at around 230–260°C. It is therefore plausible that molten copper droplets could have ignited the combustible materials below the lamp.
In a contact point welding scenario, the ignition risk occurs where the cable exterior splits, exposing highly heated copper wire to the combustible material. In the event the arcing caused the cable to sever, the exposed copper wire could have dropped to the floor in a highly heated state.
Based on this evidence, the Works submit that the Judge was plainly wrong to assume that there was insufficient time for there to be sufficiently hot molten particles to ignite the combustible material.[13]
Evidence in response
[13]At [221].
Detailed evidence was also filed by IAG in response, in the form of affidavits from Mr Ramsay and Mr Cox. The evidence of Mr Statham is criticised for being speculative as to the timing of arcing, which he hypothesises occurred before the fire. If the lamp cable had arced at the moment Mr Work activated the printing mechanism, the lamp would not have illuminated. Mr Work acknowledged the lamp was illuminated by the mechanism, suggesting it remained energised and any arcing must have occurred after the fire started.
Mr Ramsay identifies a number of inaccuracies in Mr Statham’s evidence, including: his description of elements of the switchboard and its connection to the homemade switchbox; and his use of “arc flash” and “contact point welding” terminology. He also disagrees with Mr Statham’s view that the circuit breaker was likely to fail, stating this theory is highly speculative given subsequent testing showed that it operates correctly. Further, his reliance on manufacturing data appears to have no basis. He also says Mr Statham ignores the evidence which suggests it is highly unlikely that arc tracking would lead to ignition in the short time period between Mr Work activating the mechanism and the discovery of the fire.
Dr Smith is criticised for basing his proposed further evidence on an assessment on the size of the arc bead, when it is molten copper droplets (which would be significantly smaller) that fall to the ground, not the arc bead which is attached to the cable. Moreover, Mr Ramsay’s testing shows that the volume of the hypothetical molten copper droplet used in Dr Smith’s calculation, based incorrectly on the size of the arc bead, is 46 times that of the droplet created by Mr Ramsay’s experiment.
Mr Cox submits there is no physical evidence to support the theories suggested by Mr Statham and Dr Smith:
(a)In the event that “contact point welding” occurred, evidence that cable segments welded together would remain. No such evidence existed.
(b)If “arc tracking” had occurred, one would expect localised arc erosion and alteration of the microstructure below the surface of the conductors. No evidence of that nature was observed.
Mr Cox is highly critical of Dr Smith’s calculations regarding the possibility of ignition by molten copper droplets. He states that, using photos taken of arc beads at the Property, the arc bead on the lamp cord was approximately 1 mm in diameter. Dr Smith estimated it was 2 mm in diameter and therefore, his calculations significantly overstated the energy generated by an arc. He says it is also unclear why Dr Smith used 2000°C as the key temperature at which molten copper would be expelled, when copper melts at 1083°C. This lower temperature, alongside the smaller size of possible molten copper droplets, means the energy required to melt the copper wire and create copper droplets would be well below the value proposed by Dr Smith.
The temperature of a molten copper droplet upon impact is also highly dependent on the exact size of the droplet, and the height from which it falls. There is no evidence that shows the size of the molten copper droplets that might have reached the combustible material on the floor.
For the copper droplets to ignite the paper, they would also need to be significantly hotter than the paper’s surface ignition temperature. The requisite temperature is more than double that which Dr Smith refers to, and the copper would have to sustain that temperature for sufficient time required to ignite the paper. By the time the copper was in contact with the paper for enough time, it would have dropped below a temperature required to cause ignition.
Mr Cox notes there is no supportive evidence for Mr Statham’s hypothesis that the circuit breaker failed to operate, allowing the cable to remain energised. Had the power drawn by the arc been sufficient to melt the copper, the circuit breaker would have tripped. This was not the case.
The appellants provided sub-rejoinder evidence by Mr Statham and Dr Smith responding to and rejecting these criticisms.
Alleged grounds for admissibility
With the benefit of oral argument, we understand the key propositions for the Works are as follows. First, it is necessary to examine the application in light of the proper “footprint” for the resolution of the Works’ claim, that IAG carried the burden of showing that Mr Work was the arsonist or committed wilful misconduct and there is no other credible explanation for the fire. It was not enough to show that arson was a reasonable possibility, and a strong suspicion was not sufficient. This demanded precise pleading and corresponding evidence of the manner in which the fraud is alleged to have occurred, and as to why there were no plausible alternative explanations. Conversely, the Works only needed to show that there was a non‑fanciful alternative cause of the fire.
Second, instead of approaching the matter within this footprint, IAG was allowed by the Judge to advance a defence at trial that was not clearly pleaded. The process of adding to IAG’s evidence in this way was adopted wholesale throughout IAG’s case, reflected in more than several hours of additional viva voce evidence.
Third, the deciding factor as to the lack of viability of one alternative innocent cause of the fire (by electrical arc) was one four-line answer provided by Mr Cox in response to a question proposed by IAG’s lead counsel during the course of leading viva voce evidence. The proposed evidence responds to this evidence and the finding of the judgment based on it.[14]
[14]At [221].
Fourth, the proposed evidence will lead to a reversal of the conclusion of the High Court as to the potential for an arc to cause the fire because it shows that, contrary to Mr Cox’s evidence, it is not possible to determine whether an arc bead is a “victim” or a “cause” bead.
Fifth, this key aspect of the electrical arcing theory, namely the duration of the arc and the likely heat of the molten materials, was not squarely or directly raised by IAG’s experts in their evidence as exchanged. Rather they only addressed the issue of arc in a superficial way, with Mr Ramsay focusing on arc tracking instead of electrical arcing.[15] Furthermore, Dr Smith was never challenged specifically on Mr Cox’s evidence about there being sufficient energy, time and/or heated copper wire during the arc to cause a fire.
[15]See above at [14].
Sixth, the proposed evidence is the first realistic opportunity to show the manner in which the molten copper wire may have dissipated its energy or molten metal in a way that clearly creates the possibility of a fire commencing.
Seventh, contrary to the approach taken by the Judge, it was sufficient for the Works to show the existence of a non-fanciful alternative accidental cause. In this regard, Mr Statham’s evidence refers to two possibilities — splattering of molten copper droplets landing on combustible materials or separation of the lamp cord exposing highly heated copper to combustible materials.
Eighth, in terms of the threshold for leave to adduce fresh evidence:
(a)The Works could not have, with reasonable diligence, identified the need for the evidence specifically relating to the duration of the arcing or the temperature of the molten material given it was only addressed in viva voce evidence-in-chief.
(b)The evidence is fresh in the sense that its true significance was only made evident by the Judge’s reasoning in dismissing alternative explanations for the fire — had this reasoning been made clear in the evidence, the Works’ experts would have responded to it. Notably, their experts were not cross-examined on this specific subject matter.
(c)The evidence sought to be adduced is credible and compelling evidence of suitably qualified experts — it clearly shows that arcing is a non‑fanciful alternative explanation for the fire. This is said to have been amplified by the extent of the criticism in reply and the evident weakness of that criticism (as the rejoinder evidence clearly shows).
(d)In terms of the issue of efficiency of trial process, the Works could not put their best case forward because the key IAG expert evidence relied upon by the Judge, came out in a haphazard way.
(e)As to the practicality of this Court attempting to compare additional evidence with the evidence given at trial, in reality the Court will need to grapple with that evidence and the broader factual matrix for the other grounds of the appeal, and the proposed evidence could be considered at the end of the hearing.
Assessment
Largely for the reasons set out in the submissions for IAG, the application cannot meet the threshold requirements of freshness or cogency. There is nothing exceptional about this case that would warrant the admission of further evidence in the absence of those factors.
Freshness
Dealing first with freshness, the issue of electrical arcing was squarely and overtly before the High Court at trial. As Mr Stevens points out, there were multiple references in the expert briefs of evidence, evidence-in-chief and reply, as well as cross-examination relating specifically to the issue of arcing. For example:
(a)Mr Ramsay’s brief of evidence stated:
[41] As there is no mechanism of which I am aware that would result in sudden catastrophic damage to a cable which was in an unoccupied area, I cannot comprehend any means by which the arcing could have occurred pre-fire and provided the ignition source.
[42] I therefore believe that the arcing occurred as a result of the insulation being burned during the fire and the conductors making contact with each other.
(b)A similar point was raised in Mr Cox’s brief of evidence:
[67] In my view, these microstructures were indicative of heat of fire (HOF) melting of a lower melting point material rather than electrical arcing. …
…
[74] … I observed no evidence of primary arcing on the cable which I would have expected if an electrical fault associated with the cable had been the cause of the fire.
(c)In his brief in response, Dr Smith explicitly stated he considered electrical arcing of the lamp cable as an alternate cause of the fire.
(d)Again, in response to this evidence from Dr Smith, Mr Ramsay said:
[58] The presence of two separate arcing events on a cable is evidence of nothing more than the fact that the first event did not trip the device which protected the cable and that the point at which the second arc occurred was subsequently attacked by fire.
(e)And, in his reply to Dr Smith, Mr Cox said:
[111] In general, damage to a two-core flex of the type used to supply the lamp (Exhibit 4) can result in a parallel arc between the conductors if they come into contact and form a short circuit, or a series (inline) arc if the active (phase) conductor is broken and the fracture surfaces are separated by an air gap in the order of 0.007 mm or less. In the first instance, a circuit breaker protecting the circuit concerned will generally respond to the fault current in less than 10 milli seconds from which it follows that the maximum energy discharged by the arc will be less than 1 J. While this might be sufficient to ignite flammable gases and vapours (if present at a temperature above their flash point and within their flammable limits), it would not be sufficient to ignite common combustible solids which have minimum ignition energies that are typically 1-2 orders of magnitude higher.
(f)Mr Cox was also cross-examined by Mr Jones on this point at trial:[16]
Q.I think the question I was asking you was about the operation of the circuit breaker rather than whether we would get to that point. So can you just answer that question. If we did have a short circuit in the wiring of the bulb in the housing area do you say inevitably that the short circuit would not operate to deaden the cable, if I can use that expression?
A.Okay, it would not operate inevitably. It would only operate if the short circuit persisted for sufficient time to cause it to operate.
[16]Emphasis added.
Given all of the above, there was clearly a reasonable opportunity for the Works to address all aspects of the arcing claim, including the material they now seek leave to adduce. We do not see anything in the fact that Mr Cox referred to the short period of the arc in viva voce evidence-in-chief (rather than in his brief of evidence as exchanged). Importantly, IAG’s evidence was heard first. The experts and counsel for the Works would have had the benefit of hearing IAG’s evidence before the Works’ experts were called to give evidence. Accordingly, there can be no suggestion of any real prejudice to the Works.
Finally, in this regard, Mr Jones put much emphasis on the proper “footprint” for analysis of the Works’ position, including the burden carried by IAG to prove both the fraud and the absence of a non-fanciful alternative explanation. Whether that is the right footprint is a matter for the substantive appeal, so we make no comment on it. But assuming Mr Jones is correct, for the reasons already expressed, he and the experts giving evidence for the Works had ample opportunity to contradict Mr Cox’s evidence with the evidence they now propose to adduce. That opportunity was not taken.
We therefore find the proposed evidence is not fresh. The Works could, with reasonable diligence, have identified the need for it, if in fact there was a need, and called that evidence at the hearing.
Credibility
We proceed on the basis that the evidence is credible, notwithstanding the criticisms by IAG that the authors are not suitably qualified and the evidence is insufficiently founded.
Cogency
The determinative factor in our assessment is that the evidence is not fresh. For completeness, however, we note that there appears to be considerable force in the submission made by counsel for IAG that the evidence is of limited cogency. The cogency of any expert opinion relies on the facts upon which it is premised. The theory promoted by the Works’ experts is largely premised on the assumption that the circuit breaker was defective on the night. Obviously, at this preliminary stage, we have not yet undertaken a full analysis of the relevant evidence. Based on our review to date, however, there does not appear to be a clear evidential basis for that assumption. We note Mr Ramsay’s assessment (in his evidence in reply) that such an assumption is highly speculative.
If the proposed new evidence had the potential to be determinative of the appeal, that may strengthen the case for its admission (albeit, in our view, would still not overcome the lack of freshness). However, the proposed new evidence falls well short of having a potentially decisive or determinative effect on the appeal, on a standalone basis. In the High Court, the Works were found to have been dishonest to IAG, the effect of which was that IAG was entitled to decline their claim.[17] As Mr Stevens noted, that crucial finding must first be overturned for the appeal to succeed. There are also other fundamental findings made by the Judge that would need to be overcome before the new evidence could potentially impact the outcome of the appeal. These include that there could be no innocent scientific explanation for Mr Work’s mechanism and “the inevitable inference is that its purpose was to start the fire”.[18]
Exceptional circumstances
[17]Judgment under appeal, above n 2, at [154].
[18]At [300].
Finally, we see nothing exceptional about this case that might demand admission of the proposed evidence. There is no procedural or substantive unfairness and nothing unusual about this case that might justify the added burden of further evidence to an already lengthy and costly process. We are fortified by the fact that the Works’ notice of appeal does not refer to the Judge’s finding on electrical arcing and the present issue was only raised shortly before the substantive appeal was due to be heard. Given the fine-grained nature of the notice of appeal, raising over 30 points, it can hardly be said that the arc issue is of obvious importance. As with the vast majority of cases that come to this Court, the merits must stand or fall on the evidence given at trial.
Result
The application to adduce further evidence is declined.
The appellants must pay the respondent costs for a standard application on a band A basis together with usual disbursements. We certify for second counsel.
Solicitors:
Court One, Auckland for Appellants
Wotton Kearney, Wellington for Respondent
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