Young v Tower Insurance Limited
[2016] NZHC 2029
•30 August 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-000222 [2016] NZHC 2029
BETWEEN GREGORY PETER YOUNG AS
TRUSTEE OF MCARA YOUNG TRUST
& MALLEY & CO TRUSTEES LIMITED AS TRUSTEE OF MCARA YOUNG TRUST
Plaintiffs
AND
TOWER INSURANCE LIMITED Defendant
Hearing: 29 August 2016 (Day 1) Appearances:
P F Whiteside QC and H T Shaw for Plaintiffs
M C Harris and ATB Joseph for DefedantJudgment:
30 August 2016
JUDGMENT OF GENDALL J
[1] Day one of the 10 day trial scheduled for this proceeding took place yesterday, 29 August 2016. At that time I heard submissions from counsel with respect to an application brought by the defendant challenging the admissibility of parts of the reply brief of evidence of the first-named plaintiff, Gregory Peter Young (Mr Young). This reply brief comprised something in excess of 60 pages.
[2] The objection by the defendant to aspects of this brief and its challenge to the admissibility of parts of the brief was substantial.
[3] First, the defendant objected to what it describes as an attempt by Mr Young who is an architect to qualify himself as an expert in this proceeding. On this aspect, Mr Whiteside QC counsel for the plaintiffs properly accepted that the plaintiffs here could not engage one of their own, in this case Mr Young, as an expert witness, such
that he would be able to give expert opinion evidence which was admissible under
YOUNG v TOWER INSURANCE LIMITED [2016] NZHC 2029 [30 August 2016]
s 25 Evidence Act 2006. Further, Mr Whiteside QC indicated that the plaintiffs do not make any application under s 26(2) of the Evidence Act 2006 to allow Mr Young here to give expert evidence pursuant to the Code of Conduct for Expert Witnesses in High Court civil proceedings.
[4] In this case obviously Mr Young is one of the plaintiff parties and is a clear advocate for the parties. Here, I accept that Mr Young is unable to give expert opinion evidence as an expert in terms of s 25(1) Evidence Act 2006. He would be quite unable to assist the Court with the impartiality expected of experts.
[5] Counsel for the defendant contends that Mr Young’s reply brief is also objectionable because certain parts of it contain inadmissible hearsay, argument, material in the nature of submissions and unsupported conclusory statements. These parts of the brief, it is said, are objectionable on their own terms but also emphasize the fact that they are inappropriate here.
[6] Having now had an opportunity to consider the defendant’s complaints relating to all aspects of Mr Young’s reply brief I accept that in some cases the challenged material is objectionable and it must be ruled as inadmissible. I will deal with these aspects in a schedule following.
[7] Before doing so, however, it is useful to note additional arguments advanced before me by Mr Whiteside QC on behalf of the plaintiffs with respect to this brief put forward for Mr Young.
[8] First, Mr Whiteside QC noted that Mr Young without question has considerable professional expertise as an architect and that here no-one knows the house in question better than Mr Young because he designed it, was involved in its construction and has lived in it ever since, including after the September 2010 and February 2011 earthquakes. To this extent, Mr Whiteside QC contends that Mr Young in his evidence is clearly able to address the extent of damage to the plaintiff’s home and what is required to repair it, such that the Court can be considerably assisted by this.
[9] Secondly, Mr Whiteside QC endeavoured to argue that Mr Young here is entitled to give opinion evidence under s 24 Evidence Act 2006 as here in many instances his evidence which might be seen as opinion evidence can be accepted when Mr Young’s perceptions and statements of fact are conclusions in themselves or where, as Mr Whiteside QC contends, there is a mixture of inference and fact that cannot be separated.
[10] On all of this there can be no doubt that Mr Young is entitled to give evidence as to what he has seen by way of damage to his family home and his professional expertise, it is said, enables him under s 24 of the Evidence Act 2006 to express an opinion as to how and why that damage has occurred. This, it is said, obviously leads to Mr Young’s ability to state an opinion as to what is required to remedy that damage.
[11] To a limited extent, I accept some of the submissions advanced by Mr Whiteside QC in this area in situations where Mr Young’s perceptions and statements of fact are conclusions in themselves or where there is a mixture of inference and fact that simply cannot be separated – on this see Richard Mahoney and Others The Evidence Act 2006: Act & Analysis1.
[12] A caveat to these conclusions, however, will arise over a range of matters including what Mr Whiteside QC describes as “survey evidence” which Mr Young endeavours to advance and certain conclusory and opinion matters to which objection is taken.
[13] These will become apparent in the schedule attached whereby I outline my
decision and brief reasons on the defendant’s particular challenges.
[14] Before turning to this, however, I need to note that the plaintiffs here before me accepted certain of the challenges to the following paragraphs of Mr Young’s reply brief and agreed that they were to be removed. An order to this effect is now
made. The paragraphs in question are:
1 Richard Mahoney and Others The Evidence Act 2006: Act & Analysis (3rd ed, Brookers, Wellington, 2014) at [EV24.02]
14, 21 (last sentence); 22 (first sentence); 24 (first sentence); 34, 39 (b) – (g), (m), and the second sentence in (h); as well as all the words in that subclause from the first mention of “connecting”; 46, 50.68; 51.16 (last four words); 51.39; 51.133;
51.136; 51.138; 51.143 (second sentence); 51.150; 51.158; 53.2 (second sentence);
63.14; 63.78 (last sentence); 63.84; 63.92 (second clause); 63.93; 63.97 (second sentence); 63.99 (last sentence); 63.105 (last clause); 65.51; 65.73; and the references to warranties in 68.12.
[15] There are also, as I understand it, some amendments proposed by the plaintiffs which have been agreed to by the defendant, these being to paras 51(144) and 51(193).
[16] Turning now to the outstanding objections from the defendant to many of the paragraphs of Mr Young’s reply brief I now set out in the schedule my decision on these objections. In cases where the objection is upheld, that part of the evidence is to be removed as inadmissible and an order to this effect is now made. In cases where the objection is rejected, that part of Mr Young’s brief is to remain.
...................................................
Gendall J
Addendum
[17] This is an addendum to my judgment dated today, 30 August 2016, regarding admissibility issues. Regrettably, in my haste to have this judgment and the schedule completed I omitted from the schedule one item. This related to paragraph 51(135) (highlighted) of Mr Young’s reply brief of evidence.
[18] This was objected to by the defendant upon the basis that it is said it is argumentative and it is inadmissible opinion purporting to be of an expert nature. My decision with respect to that matter is as follows:
Again, the comment in sentence 1 of this particular paragraph is of little help, it is unsubstantiated and is inadmissible and I so rule. Sentence 2, however,
is a statement of fact up to the word “longer” in the sentence but the rest of this sentence is speculation and is to be deleted. Subject to that, sentence 2 up to the word “longer” is admissible and is to remain.
...................................................
Gendall J
SCHEDULE
Paragraphs of Mr Young’s Reply Brief
| Para No. | Objection by Defendant | Why Admissible/ or Whether Objection Accepted |
| 2-7 | Plaintiff trying to qualify himself as an expert | Admissible – entitled to give evidence of expertise and experience |
| 11-13 | Submission, argumentative | Admissible – statements of fact generally |
| 15-17 | Submissions, argumentative, material not in reply Paragraph 16 also contains inadmissible hearsay (highlighted) | Objection accepted – 15 and 17 are inadmissible opinion evidence 16 is in evidence - admissible survey evidence |
| 20 | Argumentative, Material not in reply | Admissible – accepted now by defendant as admissible |
| 21 | Submission, Argumentative | Objection accepted. Not generally helpful. Inadmissible opinion evidence |
| 22 | Submission, Argumentative | (a) Agreed, first sentence removed (b) Defendant accepts remainder inadmissible |
| 23 | Argumentative, submission (“trying to avoid repairing the damage”); inadmissible expert opinion | Admissible – Mr Young is entitled to clarify why he does not accept Mr Sinclair’s statements – his response is factual. But words in lines 1-2 after “claim” are argumentative and to be deleted. |
| 24– second sentence | Submission, Material not in reply | Admissible – factual statement within Mr Young’s |
| 26-27 | Inadmissible hearsay, Irrelevant | Objection dismissed – admissible hearsay under s 18 Evidence Act 2006, I accept would be undue expense and delay if required to call these extra witnesses |
| 28-32 | Inadmissible opinion purporting to be of an expert nature. Argumentative, submission | Admissible as essentially factual statements |
| 36-27 | Inadmissible expert opinion | Admissible – as essentially factual statements |
| 38 | Inadmissible hearsay | Objection accepted – inadmissible hearsay |
| 39(a)-(h) (excluding second sentence and last 4 lines of para i, j and l | Inadmissible opinion purporting to be of an expert nature | Admissible – facts within Mr Young’s knowledge of |
| 39(k) (first highlight) | Inadmissible hearsay | Admissible – essentially factual statement |
| 45 (highlighted) | Argumentative, Submission, inadmissible opinion | A generally minor matter but objection upheld - last two lines of 45 to be deleted. |
| 50(9) and (10) | Argumentative, Speculative | Again, generally minor matters. But argumentative and not useful. Objection upheld. Last two lines of 50(9) and first three lines of 50(10) to be deleted |
| 50(45) | Argumentative, Submission | Admissible – As again, generally an inconsequential matter |
| 50(61) | Argumentative, Speculative | Once again, generally a relative minor issue. But second sentence of 50(61) is speculative, is not useful here and is to be deleted |
| 50(71) | Argumentative, Submission | First sentence is factual and is admissible. Remainder of 50(71) is speculation generally, is unhelpful here, and is to be deleted. |
| 51(4), (16) (highlighted) | Whole section – inadmissible expert opinion apart from 50(38) and (65) and (121) first sentence. Submission | Although much of this material is addressed by experts, generally it contains statements of fact and is admissible. Objection overruled. |
| 51(39) | Repetitive, Argumentative, Submission | Last sentence by agreement has been deleted. Remainder is repetitive, pure opinion and is unhelpful here. It is inadmissible and is to be deleted. |
| 51(59) | Inadmissible opinion purporting to be of an expert nature. Speculative | Admissible, as generally statements of fact |
| 51(65) | Inadmissible opinion purporting to be of an expert nature | Again, admissible as a pure statement from Mr Young of fact |
| 51(87)-(89) | Inadmissible opinion, Repetitive, Submission | Again, generally statements of fact from Mr Young’s perspective as home occupier and otherwise – admissible |
| 51(102) (highlighted) | Inadmissible hearsay | Again, generally statements of fact and admissible |
| 51(123)(b) | Submission, Repetitive | Again, generally a factual statement by Mr Young as home occupier – admissible |
| 51(129) | Inadmissible opinion purporting to be of an expert nature | Again, the comment in sentence 1 is of little help, unsubstantiated and is inadmissible. Sentence 2 is a statement of fact up to the word “longer”, but the reset of this sentence is speculation and is to be deleted. |
| 51(142)-(143) | Inadmissible opinion purporting to be of an expert nature | (142) is inadmissible opinion and is to be deleted as is the first sentence of (143) |
| 51(144) | Submission | Generally inconsequential as agreed to be modified it is admissible |
| 51(145) | Argumentative, Submission, Inadmissible opinion | Again, generally inconsequential but the statement in the second sentence is generally known widely and commonly. – paragraph is admissible |
| 51(147) | Inadmissible opinion purporting to be of an expert nature | Again, generally factual statements and admissible |
| 51(156) | Submission | Again, largely a statement of fact and admissible |
| 51(159) | Submission, Inadmissible opinion, Not substantially helpful | Again generally a factual statement from Mr Young as home occupier with intimate knowledge of the house and its history. |
| 51(163) | Argumentative, Inadmissible hearsay and Speculative | Generally factual statements in part and admissible opinion evidence (although some might be slightly doubtful). Possibly offending issues here are minor. Objection dismissed. Paragraph is admissible |
| 51(170) | Repetitive, Argumentative, Submission, Inadmissible opinion | Inadmissible – this is submission and no doubt will be addressed by other expert evidence |
| 51(190) | Argumentative | Sentence 1 is argumentative, adds little and is to be deleted. Sentence 2 is broadly factual and is to remain |
| 51(192) | Inadmissible hearsay | This purports to reply to and contradict Mr Sinclair’s evidence. It relates to examinable witnesses and is admissible. |
| 51(193) | Inadmissible opinion purporting to be of an expert nature | This relates generally to Mr Young’s factual knowledge as home occupier and is admissible with the modification proposed by Mr Whiteside QC. |
| 51(231) | Submission | Inadmissible – this adds little here and in sentence 2 is generally submission only |
| 51(233) | Argumentative | Sentence 1 is a factual response to Mr Sinclair’s evidence and is admissible. Sentence 2 adds nothing, is speculative and is to be deleted. |
| 51(242) | Inadmissible hearsay, Argumentative | Last sentence is speculative, unhelpful and inadmissible. Remainder is a legitimate response and is admissible. |
| 52 | Whole section – Inadmissible expert opinion save for 52(5.3) | This section again is generally factual from Mr Young’s own knowledge as occupier of house. It is admissible expect for the sentence beginning “Nick Harwood was…” |
| 52(8) (highlighted) | Inadmissible hearsay | Again, generally factual and admissible |
| 53 | Whole section – inadmissible expert opinion | Again, this whole section is generally factual and is admissible |
| 53(16) (highlighted) | Submission, Inadmissible opinion | See 53 above – admissible |
| 53(19) | Submission, Inadmissible opinion | See 53 above – generally factual and admissible |
| Second paragraph 53 | Submission, Inadmissible opinion | Again, generally factual statements and admissible |
| 54 | Inadmissible opinion | Again, generally factual criticisms and admissible |
| 55 | Inadmissible opinion | Again, generally factual criticisms and admissible |
| 56 | Whole section – inadmissible expert opinion | Again, generally factual criticisms and admissible |
| 63(14) | Submission | Agreed to be deleted |
| 63(37) | Inadmissible hearsay | Given Russell Gray’s report and availability, this is |
| 63(53) | Argumentative, Speculation | This is speculative and is inadmissible |
| 63(72) | Inadmissible hearsay | This is inadmissible hearsay and is to be deleted |
| 63(73) | Argumentative, Submission, Inadmissible hearsay | Some is factual and the balance, although possibly hearsay, is admissible here |
| 63(78) (highlighted) | Submission | Generally this is factual and with the last sentence deleted this is admissible |
| 63(83) | Submission | Generally this is factual from Mr Young’s own |
| 63(84) | Agreed to be deleted | |
| 63(92) | Inadmissible opinion | Factual up to the words “actually occur” and |
| 63(97) | Submission, Argumentative, Inadmissible opinion | Generally a minor matter dealt with by other expert evidence – is a submission and is to be deleted as inadmissible |
| 63(99) | Inadmissible hearsay | Last sentence agreed to be deleted - although colourful, balance is factual and admissible. |
| 63(103)- (121),(123), (126) & 64 | Submission, Opinion, Repetitive, Conclusory and Unfairly prejudicial | Save for the last clause in 105, these matters are generally factual and are admissible. |
| 65(19), (21), (25), (31), (37), (50) | Submission, Repetitive | Again, these matters are generally factual with some admissible opinion evidence and objection dismissed. These are admissible |
| 65(52) | Inadmissible opinion | Again, generally factual and admissible |
| 65(63) | Submission, Inadmissible opinion | Again, a mixture of facts and admissible opinion – |
| 65(65) | Inadmissible hearsay | Factual evidence with some admissible opinion. Mr Harwood is to give evidence. Para admissible |
| 65(70) & (73) | Argumentative | (73) is agreed to be deleted. (70) is a response to earlier evidence, including certain facts and admissible opinion – admissible |
| 65(76) | Inadmissible opinion | Again, generally factual and admissible |
| 65(101) & (103) | Argumentative | Again, generally factual and admissible |
| 67 | Argumentative | Again, factual in terms of Mr Young’s understanding |
| 68(5) | Argumentative, Submission, Speculative | Again, generally factual with admissible opinion and overall admissible |
| 68(12) | Repetitive | Although this may be repetitive it is factual and with deletion of references to the warranties is admissible |
| 68(17) | Inadmissible opinion, Repetitive, not substantially helpful | Again, this is generally factual with some admissible opinion comments. Para is admissible |
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