Grace v Orion New Zealand Ltd

• Jurisdiction: New Zealand
• Judge: Gendall J
• Judgment Date: 12 April 2021
• Neutral Citation: [2021] NZHC 705
• Date: 12 April 2021
• Docket Number: CIV-2017-409-000454
• Court: High Court

Between

Cecile Grace

First Plaintiff

Alexander Doug Pflaum

Second Plaintiff

Amrut Govind

Third Plaintiff

Brent Cameron and Annie Cameron

Fourth Plaintiffs

B Kwon

Fifth Plaintiff

Mark Balogh and Hls Trustees Limited as Trustees of The Balogh Family Trust

Sixth Plaintiffs

Cory Beynon

Seventh Plaintiff

Divine Cakes & Desserts Christchurch Limited

Eighth Plaintiff

Paul Joseph Dorrance and David Paul Amodeo as Trustees of The Dorrance Family Trust

Ninth Plaintiffs

Fabel Music Limited

Tenth Plaintiff

Graeme Mcvicar and Joy Mcvicar

Eleventh Plaintiffs

Gavin Brindley

Twelfth Plaintiff

Gregory Graham

Thirteenth Plaintiff

Helen Ward

Fourteenth Plaintiff

Ian Houghton

Fifteenth Plaintiff

James Frost

Seventeenth Plaintiff

Jung Kwon Jang

Eighteenth Plaintiff

Katharine Everton

Nineteenth Plaintiff

Kerry Francis Briggs

Twentieth Plaintiff

Dara Bigwood

Twenty-Second Plaintiff

David Bailey and Sharon Bailey

Twenty-Fifth Plaintiffs

Grant Sisson and Stephanie Sisson

Twenty-Sixth Plaintiffs

The Trustees of The Sisson Family Trust

Twenty-Sixth (a) Plaintiff

Kenneth Mckenzie and Denise Mckenzie

Twenty-Seventh Plaintiffs

Richard Wilhelm and Susan Wilhelm

Twenty-Eighth Plaintiffs

Robin Oakley and Shirleen Oakley

Thirtieth Plaintiffs

Simon Jerard and Samantha Jerard

Thirty-First Plaintiffs

Terrence Powers and Karen Powers

Thirty-Second Plaintiffs

Alan Beuzenberg and Debbie Beuzenberg

Thirty-Third Plaintiffs

Barry Prebble

Thirty-Fourth Plaintiff

Christopher Bayley and Janine Bayley

Thirty-Fifth Plaintiffs

Christopher Johnstone and Karen Johnstone

Thirty-Sixth Plaintiffs

The Trustees of The Tirohanga Family Trust

Thirty-Sixth (a) Plaintiffs

Grant Poultney and Susan Poultney

Thirty-Seventh Plaintiffs

Glen Menzies and Tracey Menzies

Thirty-Eighth Plaintiffs

Jerry O'Neill and Jill O'Neill

Thirty-Ninth Plaintiffs

Joshua Scott and Linda Jones

Fortieth Plaintiffs

Michael Milne and Sacha Milne

Forty-First Plaintiffs

Phillip Claude and Kathryn Ward

Forty-Second Plaintiffs

Paul Dorrance

Forty-Third Plaintiff

Peter Morgan and Mary Brennan

Forty-Fourth Plaintiffs

Warren Flanagan and Vilma Flanagan

Forty-Seventh Plaintiffs

Lorraine Elder and David Elder

Forty-Eighth Plaintiffs

Tracey Cook and Claude Cook

Forty-Ninth Plaintiffs

Joanne Kinley and Wayne Gibbon

Fiftieth Plaintiffs

Nick Thurley and Catherine Barendrecht

Fifty-First Plaintiffs

Norman Matthews

Fifty-Second Plaintiff

Rebecca Parish, Gerrard Double and Anderson Lloyd Trustee Company 2013 Limited as Trustees of The Parish and Double Family Trust

Fifty-Fourth Plaintiffs

Percy Bull

Fifty-Fifth Plaintiff

Peter Coughlan

Fifty-Sixth Plaintiff

Philip Johnston

Fifty-Seventh Plaintiff

Peer Pritchard and Sonya Anne Brooks as Trustees of The Pritchard Brooks Family Trust

Fifty-Eighth Plaintiffs

Robin Oakley and Shirleen Oakley

Fifty-Ninth Plaintiffs

Rebecca Parish

Sixtieth Plaintiff

Rob Van Weerd Construction Limited

Sixty-First Plaintiff

Ross Bonnington

Sixty-Second Plaintiff

Shona Moore

Sixty-Third Plaintiff

Steven Williams

Sixty-Fifth Plaintiff

Christopher Bayley, Janine Bayley and David Shackleton as Trustees of Te Waihora Trust

Sixty-Seventh Plaintiffs

Annie Cameron and Brent Cameron as Trustees of The Alban Family Trust

Sixty-Eighth Plaintiffs

Alan Beuzenberg and Debbie Beuzenberg as Trustees of The Beuzenberg Family Trust

Sixty-Ninth Plaintiffs

Monique Mentink and Landsborough Trustee Services No. 10 Limited as Trustees of The Monique Mentink Family Trust

Seventieth Plaintiffs

Miranda Angelique and Craig Newbury as Trustees of The Newbury Family Trust

Seventy-First Plaintiffs

Miranda Angelique and Craig Newbury

Seventy-First (a) Plaintiffs

Timothy Fournier and Kate Bracefield

Seventy-Second Plaintiffs

Trudy Anderson

Seventy-Third Plaintiff

Vikki Pflaum

Seventy-Fourth Plaintiff

Kerry Briggs and Lisa Briggs

Seventy-Fifth Plaintiffs

Suzanne Millar and Chris Millar

Seventy-Sixth Plaintiffs

Samantha Jerard, Simon Jerard and Mark Abott as Trustees of The Federal Trust

Seventy-Seventh Plaintiffs

Paul Stanton and Catherine Stanton

Seventy-Eighth Plaintiffs

Rachel Cullens

Seventy-Ninth Plaintiff

Mark and Karen Sinclair

Eightieth Plaintiffs

and

Orion New Zealand Limited

First Defendant

Leisure Investments NZ Limited Partnership

Second Defendant

Amrut Govind

Third Plaintiff

Brent Cameron and Annie Cameron

Fourth Plaintiffs

Divine Cakes & Desserts Christchurch Limited

Eighth Plaintiff

Gavin Brindley

Twelfth Plaintiff

Helen Ward

Fourteenth Plaintiff

Katharine Everton

Nineteenth Plaintiff

Kerry Francis Briggs

Twentieth Plaintiff

Grant Sisson and Stephanie Sisson

Twenty-Sixth Plaintiffs

The Trustees of The Sisson Family Trust

Twenty-Sixth (a) Plaintiff

Kenneth Mckenzie and Denise Mckenzie

Twenty-Seventh Plaintiffs

Robin Oakley and Shirleen Oakley

Thirtieth Plaintiffs

Simon Jerard and Samantha Jerard

Thirty-First Plaintiffs

Barry Prebble

Thirty-Fourth Plaintiff

Christopher Bayley and Janine Bayley

Thirty-Fifth Plaintiffs

Joshua Scott and Linda Jones

Fortieth Plaintiffs

Michael Milne and Sacha Milne

Forty-First Plaintiffs

Phillip Claude and Kathryn Ward

Forty-Second Plaintiffs

Lorraine Elder and David Elder

Forty-Eighth Plaintiffs

Rebecca Parish, Gerrard Double and Anderson Lloyd Trustee Company 2013 Limited as Trustees of The Parish and Double Family Trust

Fifty-Fourth Plaintiffs

Peter Coughlan

Fifty-Sixth Plaintiff

Robin Oakley and Shirleen Oakley

Fifty-Ninth Plaintiffs

Rebecca Parish

Sixtieth Plaintiff

Rob Van Weerd Construction Limited

Sixty-First Plaintiff

Christopher Bayley, Janine Bayley and David Shackleton as Trustees of Te Waihora Trust

Sixty-Seventh Plaintiffs

Annie Cameron and Brent Cameron as Trustees of The Alban Family Trust

Sixty-Eighth Plaintiffs

Trudy Anderson

Seventy-Third Plaintiff

Kerry Briggs and Lisa Briggs

Seventy-Fifth Plaintiffs

Samantha Jerard, Simon Jerard and Mark Abott as Trustees of The Federal Trust

Seventy-Seventh Plaintiffs

Paul Stanton and Catherine Stanton

Seventy-Eighth Plaintiffs

[2021] NZHC 705

Gendall J

CIV-2017-409-000454

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA

ŌTAUTAHI ROHE

Damages, Tort — claim for damages by 80 plaintiffs under the Forest and Rural Fires Act 1977, negligence and in nuisance for loss suffered as a result of two fires — the defendant operated an electricity network — the second defendant operated an Adventure Park — liability and causation under the Act — whether the second defendants acts or omissions had caused an outbreak of fire or a spread of fire — remoteness — whether the damage was foreseeable — reinstatement — betterment

Appearances:

C M Stevens, B R D Cuff, S K Battersby and C S M Henley for Plaintiffs

T C Weston QC, M Dennett, R J H Scott and S M Crosbie for First Defendant

G N Gallaway, W J Hamilton and L A Merrick for Second Defendant

JUDGMENT OF Gendall J

This judgment was delivered by me on 31 March 2021 at 3 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

Table of Contents

	Para No
Introduction	[1]
Background	[13]
Christchurch Adventure Park	[13]
Summit Road Fire and the Chairlift Fire	[19]
Timeline	[23]
Monday 13 February 2017	[24]
Tuesday 14 February 2017	[37]
Wednesday 15 February 2017	[59]
Adventure Park's Fire Safety Management Plan (FSM Plan)	[82]
Doppelmayr manual	[87]
Damage caused by the fires	[89]
Plaintiff's pleadings	[96]
Section 43 of the Forest and Rural Fires Act 1997 (FRF Act)	[100]
Liability under s 43	[100]
Causation under s 43	[115]
Was this an extraordinary event?	[121]
Was this an “outbreak” of fire or simply a “spread” of fire?	[131]
Conclusion on s 43 FRF Act	[147]
Negligence	[149]
Duty of care and the scope of that duty?	[154]
Breach of the duty of care?	[170]
– Flammability of Chairs?	[171]
– Requirements for a competent chairlift operator	[175]
Causation of loss by the breach and remoteness?	[182]
Conclusion on negligence	[189]
Nuisance	[190]
Adventure Park created or participated in the creation of a nuisance?	[198]
Adventure Park's land was used in a way that was unreasonable?	[202]
Damage suffered was foreseeable?	[209]
Conclusion on nuisance	[212]
Damages	[213]
Broadly “Non-contested” sums	[219]
“Contested” sums	[221]
Legal Framework	[223]
Reinstatement	[234]
Process for quantifying loss	[245]
Flanagans' quantum claim — 165 Early Valley Road	[255]
– Insured loss claim	[260]
– Uninsured loss claim	[278]
Cecile Grace's quantum claim — 349 Worsleys Road	[280]
– Insured loss claim	[281]
– Uninsured loss claim	[292]
Kwons' quantum claim — 339 Worsleys Road	[305]
– Insured loss claim	[309]
– Uninsured loss claim	[313]
Pflaums' quantum claim — 343 Worsleys Road	[332]
Repair cost claims	[370]
Betterment	[385]
Interest	[410]
Judgment	[419]
Costs	[421]

Introduction

1 Two major fires occurred in the Port Hills area of Christchurch in February 2017. The plaintiffs were owners and in most cases residents of property, or business owners, in the area at the time. They and their properties were significantly affected by the fires. In this proceeding, the plaintiffs sue the two defendants for the consequences of the fires.

2 The first defendant Orion New Zealand Limited (Orion) operates an electricity network infrastructure business and had electricity conductors and equipment in the general area where the first of the fires was said to begin. This was alongside a roadway in the lower Port Hills area known as Early Valley Road. The outbreak of this first fire (the EVR Fire) is said to have begun around...