BODY CORPORATE 328564 v VERO INSURANCE NEW ZEALAND LTD [2022] NZHC 2716

BODY CORPORATE 328564 v VERO INSURANCE NEW ZEALAND LTD [2022] NZHC 2716 [19 October2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2019-409-000100[2022] NZHC 2716BETWEEN BODY CORPORATE 328564PlaintiffAND VERO INSURANCE NEW ZEALANDLTDDefendantHearing: 26 April, 28 – 29 April, 2 – 6 May, 9 May and 24 – 25 May 2022,with supplementary submissions filed on 27 September 2022Appearances: S P Rennie, J E Bayley and S A Foss for PlaintiffP J L Hunt and L Hui for DefendantJudgment: 19 October 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 19 October 2022 at 4.30 pm pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:PART I – INTRODUCTORY MATTERSIntroduction [1]Scope of this judgment [7]The plaintiff's claim [8]Vero's defence [17]PRELIMINARY ISSUESDeclaratory relief [19]Amendment of the pleadings [24]Partial adjournment [25]Breach of policy issues [34]Site Visit [40]FACTUAL BACKGROUNDSite location [41]Apartment building overview [43]Other buildings on the site [54]Seismic force resisting systems [61]Elements of the buildings on siteApartment building [68]Pool house [79]Geotechnical characteristics of the site [80]PART II – THE LAWBurden of proof [84]What constitutes damage? [85]What does "when new" mean? [90]PART III – DAMAGE AND REMEDIATIONExpert reports and conferrals [100]Experts' evidence [117]Movement of the buildings during the CES [124]Epoxy [142]High-level literature review [143]The Hamburger ReportConclusions [144]Limitations [151]BMC ReportConclusions [153]Limitations [159]WSP ReportConclusions [164]Limitations [172]Major themes/considerations [173]The effects of epoxy injection on the residual stiffness of the structure [178]Whether the strength of a reinforced concrete element can be restored by epoxyinjection [189]The extent to which epoxy is fire resistant 44The scale of the proposed use of epoxy injection [202]Applicability of findings by the Court in other cases [206]Regulatory environment [214]Summary of the Court's approach to the use of epoxy injection [224]Damage to the apartment building elements [225]Agreed damage and remediation [226]Building elements in contention [229]BFSSDescription [230]Soil/Substrate [239]Pile heads [245]Plaintiff's position [246]Vero's position [247]Discussion [248]Basement slabPlaintiff's case [274]Vero's case [276]Cracking – general remarks [281]Corrosion of steel reinforcing – general remarks [289]Cracking to the concrete sections of the basement floor slabVolume and extent of the cracking [292]Contamination [298]Will the proposed method of remediation of the basement slab meet the "whennew" standard? [310]Aesthetics of the proposed repair to the basement slab [315]Accelerated corrosion in the steel reinforcing in the basement slab ground beams[318]Water ingress through the gap between the cold joints of the basement floor slab[324]Diamond dowels [337]Shear keys [343]Summary of damage to the BFSS above the substrate [345]Should the basement floor slab be demolished and replaced in order to meet thepolicy standard? [346]Basement superstructureBasement precast concrete walls [348]Cracking in the moment-resisting frames, namely columns and beams that supportthe basement superstructure [358]Plaintiff's case [360]Vero's case [364]Discussion [372]Unispan floor planks and structural topping [380]Ground-floor slab [393]Ground-floor beams [408]Apartment building superstructureConcrete slab on the first and second floors [420]First and second-floor north balconies [425]Third-floor balconies [430]Third-floor housing units [435]Internal suspended timber floors (third level) [440]Masonry block walls [450]Windows and joinery [451]Stairs and landings [452]Internal damage [457]Pool house and gym [459]Summary — apartment building superstructure [468]Summary of findingsPile heads [469]The basement slab [470]The basement superstructure [472]Unispan floor planks and structural topping [473]Ground-floor slab [474]Ground-floor beams [475]Apartment building superstructure [476]Relief sought [477]Orders [480]APPENDIX AGlossary of termsAPPENDIX B – Beca Crack MappingAPPENDIX C – The ExpertsPlaintiff's expertsVero's expertsPART I – INTRODUCTORY MATTERSIntroduction[1] These proceedings concern earthquake damage caused by the CanterburyEarthquake Sequence (CES) to the Madison Apartments and related buildings at aproperty situated at 400 Durham Street North, Christchurch (the buildings).[2] The buildings were constructed circa 2003 and consist of two significantstructures: an apartment building which comprises 40 residential units over fourstoreys with a basement car park (the apartment building) and a detached buildingcomprising a pool house and gym. Also on the site are various sheds and ancillarystructures.[3] The defendant, Vero Insurance New Zealand Ltd (Vero), insured the buildings.Vero accepts it has an obligation to fix the damage caused by the CES in terms of itsinsurance policy.[4] The issues in this proceeding are the extent of the damage to the buildings andwhat the necessary reinstatement scheme is to meet the "when new" standard requiredunder Vero's policy.[5] The plaintiff, Body Corporate 328564, contends the necessary reinstatementscheme requires significant partial demolition and reconstruction of the buildings.Vero contends the reinstatement scheme can largely, but not exclusively, be achievedby using the remediation method of epoxy injection.[6] The plaintiff also seeks the adjournment of part of the claim that relates to piledamage. (I note that pile damage was not pleaded in the statement of claim).Scope of this judgment[7] The findings in this judgment cannot, and will not, resolve all matters asbetween the parties. That is for four primary reasons:(a) the parties have signalled they do not at this stage seek rulings inrelation to some of the outstanding issues between them;(b) the parties have only belatedly (on 27 September 2022) completed thenecessary exercise of distilling the agreements that have been reachedby their experts into the form necessary for the making of declarations;(c) it is accepted that whilst the experts may have reached a preliminaryview of the efficacy of a particular remediation method further testingmay be needed to confirm that, and should the efficacy of a particularremediation method not be confirmed alternative remediation methodswill be necessary; and(d) the implications of such findings as can be made by the Court will needto be considered by the parties on a holistic basis (that is, on a whole ofbuilding basis) before any final and comprehensive method ofremediation can be established.The plaintiff's claim[8] The plaintiff made a claim under Vero's policy for damage to the buildingscaused by the CES, which was accepted by Vero.[9] The insurance policy contained a general indemnity clause for damage to theinsured property during the period of insurance. However, there was an exclusionclause which expressly excluded cover for damage caused by an earthquake. Coveris brought back in under the policy through an extension clause. This extension clauserelevantly provides:We [the insurer] will pay the cost of reinstatement in the event of any insuredproperty to which this extension applies suffering earthquake damage orvolcanic eruption or hydrothermal activity damage during the period ofinsurance.[10] "Reinstatement" is then defined for two different instances, where the propertyis destroyed and where the property is damaged. Both parties accept the relevantdefinition is the one pertaining to where the property is damaged. In such a case,"reinstatement" is defined as requiring the restoration of the damaged portion of theproperty to "a condition substantially the same as, but not better or more extensivethan, its condition when new." The interpretation of this definition is discussed inmore detail below at [90]–[99].[11] Under the policy Vero agreed to indemnify the plaintiff for such damage bypayment or, at Vero's option, by repair or replacement (Vero has not exercised theoption).[12] The plaintiff claims that, under the policy, Vero also promised to settle all validclaims fairly and promptly.[13] The statement of claim records that during 2017 the plaintiff instructed BecaLtd (Beca) to prepare a reinstatement methodology for the damage caused to thebuildings by the CES. Beca provided a written report dated 10 November 2017. Thestatement of claim also records that, during 2018, Vero instructed BatchelarMcDougall Consulting Structural and Civil Engineers Ltd (BMC) to provide themwith a Detailed Seismic Assessment, which BMC provided in a report dated 20 March2018.[14] The plaintiff and Vero agreed the experts should confer and agree or disagreeon the extent of the damage caused by the CES and on an appropriate reinstatementmethodology.[15] Beca and BMC completed a Joint Engineers Report (JER) on 5 September2018, in which the experts documented both their agreements and disagreements as tothe nature and extent of the damage and what they considered to be the competingmethodologies for repair in respect of each building element.[16] The plaintiff claims that to repair the damage to the "when new" standard inthe policy the repair must follow the Beca repair methodology set out in the JER. Theplaintiff says the BMC repair methodology in the JER does not repair the buildings tothe "when new" standard in the policy for the following reasons:(a) the repair is not based on a holistic understanding of how the buildingelements would perform over the whole life of the buildings and duringan earthquake;(b) it incorporates epoxy injection, which will not restore the strength,stiffness and ductility of the buildings; and(c) does not address the damage to the reinforcing steel caused byearthquakes, water ingress and corrosion.Vero's defence[17] Vero denies the nature and extent of the damage claimed by the plaintiff.[18] Further, it denies that the BMC methodology contained in the JER would notrestore the building to a "when new" standard.PRELIMINARY ISSUESDeclaratory relief[19] Both parties have approached this case on the basis that declaratory relief isrequired.[20] The plaintiff says it cannot make any commercial decision, much lesscommence any reinstatement, until it is definitively known what amounts will be paidunder the policy.[21] The JER records agreement between the parties' experts concerning theappropriate method of remediation of damage in relation to only some elements of thebuildings.[22] I am satisfied there is a genuine dispute between the parties concerning whatthe appropriate method of remediation should be for the remaining damaged elements(including significant structural elements). Declaratory relief is apposite in thesecircumstances.[23] After the hearing I requested the parties confer and file a memorandumrecording in declaratory form the agreements that have been reached between theexperts. The agreements are set out at [226]–[229] where I start to consider the extentof the damage caused to the buildings by the CES.Amendment of the pleadings[24] As I have already said above at [6], the plaintiff did not plead pile damage inits statement of claim. The experts have dedicated extensive time to this issue andundertaken much analysis by way of modelling. Pile damage was the subject ofsignificant evidence. I do not discern that Vero opposes an amendment to thepleadings to address this deficit. However, were it to, I consider it would be verydifficult in these circumstances for it to successfully claim it has suffered anyprejudice, particularly when that matter may be addressed by costs.Partial adjournment[25] In reliance on r 11.2(d) of the High Court Rules 2016 (the Rules), the plaintiffsought a partial adjournment before any final and comprehensive declaration ofreinstatement is made. This was for the purposes of further forensic testing and expertconferral being undertaken to establish the true extent of the damage to the piles(specifically, the pile heads) in the apartment building's foundation. Vero opposedsuch a course, saying the Court should deal with the case on the existing evidencetendered by the parties. It said the Court should find that the plaintiff has had everyopportunity to prove their case in respect of these elements and has failed to do so.[26] Rule 11.2 states:11.2 Types of judgmentA judgment may—(a) be interim; or(b) be final; or(c) deal with any question or issue; or(d) order any accounts, inquiries, acts, or steps that the courtconsiders necessary.[27] In interpreting the words "acts, or steps that the court considers necessary",regard should be had to r 1.2, which provides that the objective of the Rules is to securethe just, speedy, and inexpensive determination of any proceeding or interlocutoryapplication. This rule is the governing yardstick by which all the Rules are to beinterpreted — the subsequent Rules are subordinate to the need to promote theobjective of a just determination of any proceeding.1[28] A purposive construction of r 11.2(d) suggests the words "any acts, or stepsthat the court considers necessary" should be interpreted broadly to include theprovision of any further information the Court views as necessary to secure the just,speedy and inexpensive determination of the proceeding.[29] I have only been referred to one case where the Court, in direct reliance onr 11.2(d), ordered the parties to file further evidence after the conclusion of a hearingbecause it lacked sufficient information to make a ruling on the matter.2[30] Nevertheless, it is axiomatic that the Court has an inherent jurisdiction tocontrol its own procedure,3 subject of course to the express wording and applicationof the Rules.4 The powers conferred by the Rules are in addition to and not insubstitution of the powers arising out of the inherent jurisdiction of the Court.5[31] I note there are cases where, relying on the Court's inherent jurisdiction, leavewas reserved to the parties to file further evidence.6[32] In summary, I am satisfied the Court has the power to adopt the courseproposed by the plaintiff if it is just to do so.1 Body Corporate 366567 v Auckland Council [2017] NZHC 1520, (2017) 23 PRNZ 569 at [4],endorsing Andrew Beck (ed) McGechan on Procedure (online ed, Thomson Reuters) at[HR1.2.01]. See also Schmidt v Bank of New Zealand Ltd [1991] 2 NZLR 60 (HC) at 63.2 Morgan v Morgan HC Wellington CRI-2008-485-2494, 26 June 2009 at [27]-[28].3 Merisant Co Inc v Flujo Sanguineo Holdings Pty Ltd [2018] NZCA 390, (2018) 24 PRNZ 480 at[18].4 Jones v New Zealand Bloodstock Finance & Leasing Ltd [2021] NZHC 1228 at [69]-[70], citingRobert Jones Investments Ltd v Gardner (1994) 7 PRNZ 567 (HC) at 570; and Prestige MotorsLtd v My Trustee Company (Nikolas and Petra) Ltd [2021] NZHC 895 at [50].5 Stylo Medical Services Ltd v Hum Hospitality Ltd [2014] NZHC 2723 at [19].6 For example Myall v Tower Insurance Ltd [2017] NZHC 251 at [106]; Ginivan v SouthernResponse Earthquake Services Ltd [2018] NZHC 2403 at [40]-[42] and [45].[33] I shall deal with the issue of whether or not to grant the partial adjournmentsought at [246]–[273] below when I review the expert evidence in respect of therelevant building elements.Breach of policy issues[34] The plaintiff says Vero is, and remains, in breach of the policy because:(a) Vero has not indemnified the plaintiff in accordance with the policy;and(b) Vero has not settled the plaintiff's claim under the policy fairly orpromptly.[35] The plaintiff has received in excess of $5,000,000 from the EarthquakeCommission (EQC) apportioned across multiple events.[36] Vero has not made any indemnity payment to the plaintiff other than forEQC-exempt aspects of the cover (in the sum of $500,000) made on 7 October 2015.At trial, Vero denied this was strategic and asserted an indemnity payment had notbeen calculated because it had not been requested by the plaintiff. Vero agreed thatthe policy did not provide for the necessity of a request from the insured before suchpayment is made.[37] In correspondence exchanged during the trial, Vero has said that now a specificrequest has been made by the plaintiff this will be assessed and a payment offered.This process is ongoing and there is therefore no utility in dealing with the matters setout at [34] as part of this judgment.[38] In any event, the parties did not ask the Court to determine the alleged breachesof the policy in this judgment.[39] Leave is reserved to the plaintiff to apply further in respect of any entitlementunder the policy and/or for any breach of the policy.Site Visit[40] I attended the site on the first day of the hearing. The site visit was useful inconfirming the quality and accuracy of the extensive photographic evidence before theCourt.FACTUAL BACKGROUNDSite location[41] The site is located at 400 Durham Street North, Christchurch Central. The sitehas one street frontage (Durham Street North) to the west. All other boundaries arewith adjacent private sites.[42] The site is located approximately 135 m south of Bealey Avenue, whichbounds the north edge of the Christchurch central business district.Apartment building overview[43] The apartment building comprises 40 self-contained residential units acrossfour storeys.[44] The building incorporates a basement car park, which contains approximately80 car-parking spaces. The primary access to the basement car park is via a concreteramp from Durham Street.[45] Including the basement, the building is five storeys high and is approximately72 m long and 28 m wide, giving a footprint of approximately 2000 to 2,100 m2 atbasement level.[46] The building's upper floor plans are each approximately 1,000 m2, with theexception of the units on the third (top) floor. The overall floor area of the building isapproximately 5,650 m2. The ground-floor units incorporate external courtyard areaswhich extend over the footprint of the basement (the basement being wider than themain building above).[47] The building's structural system comprises masonry block walls and precastconcrete frames, supporting concrete floor spans cast over Unispan precast floor unitsat ground, first-floor and second-floor levels and lightweight timber flooring at thethird-floor level.[48] Additional masonry walls enclose three sides of the stairwells which accessthe upper-level units.[49] Interior and exterior walls within each unit are typically of standard timberframe and construction with GIB interior wall and ceiling linings, and HardieFlexexterior cladding with solid plaster overcoat. All construction above third-floor levelis so comprised. The roof of the building is clad in long-run steel sheeting.[50] The apartment building sits over a basement carpark formed with precastconcrete wall panels tied into an approximately 420 to 480 mm thick concretefoundation slab.[51] As the basement is wider than the rest of the above apartment building in thenorth-south direction, a podium slab is utilised at ground-floor level to span betweenthe edges of the apartment building and the basement walls. This podium slab includesa separate waterproofing membrane and architectural topping slab to providewaterproofing to the basement roof.[52] The basement access ramp, slab and walls are supported on concreteground/foundation beams which are, in turn, supported by cast-in-situ concrete piles.[53] These piles are typically founded approximately 11.5 m below ground level(8 m below the basement slab) and vary from 600 mm to 900 mm in diameter.Other buildings on the site[54] There is a detached pool house and gym structure located in the north-eastcorner of the site.[55] The roof of the pool house comprises glazing panels and lightweight insulatedpanels supported by steel roof beams.[56] The roof of the gym is profiled steel on timber roof framing.[57] The walls of the pool house, including the wall between the pool house and thegym, are predominately 190 mm thick reinforced masonry. The remaining walls ofthe gym are timber framed with GIB internal linings and HardieFlex exterior claddingwith plaster overcoat.[58] The floor slab of the gym is 150 mm thick mesh reinforced concrete.[59] The swimming pool is founded on driven steel piles.[60] There is also a small entrance structure on the north side of the site near theDurham Street boundary. The structure has masonry walls with a glazed roof andcontains the fire panel and tenancy intercom system.Seismic force resisting systems[61] In order to discuss the damage to the apartment building it is first necessary tounderstand some general structural elements empirical in buildings generally and howthese work during seismic activity. The figure below (provided by the NationalEarthquake Hazards Reduction Program in the United States) identifies structuralcomponents typically found in a building:[62] Building structures generally comprise a three-dimensional framework ofstructural elements configured to support gravity and lateral loads. The seismic forceresisting system is commonly conceived to broadly comprise:(a) vertical elements;(b) horizontal elements; and(c) the foundation.[63] The vertical elements in a building extend between the foundation and theelevated levels, providing a continuous load path to transmit gravity and seismic forcesfrom the upper levels to the foundation.[64] The term "continuous load path" is used as an abbreviation to describe thestructural condition whereby a building can only be designed to resist earthquakes ifit is considered as a whole; that is, decisions made about the design of one aspect of astructure impact upon the demands placed on other aspects. Thus, in checking theability of an existing building to resist earthquakes the checks must be madeholistically.[65] The vertical elements of the structure can comprise either walls, frames (eithermoment frames or braced frames) or both, as is the case in these buildings. Framesconsist of vertical members (described as columns) and horizontal members(described as beams). The junctions of the beams and the columns are referred to asbeam-column joints.[66] Horizontal diaphragms, typically concrete floors, span between these verticalelements by linking them together so the building behaves as a single body andtypically also act as floors.[67] The moment-resisting frame is the combination of structural componentswithin the building that transfer lateral loading (horizontal or sideways loads, such asthose generated by earthquake shaking) from the upper levels of the building into thebuilding foundations, thereby resisting lateral forces.Elements of the buildings on siteApartment building[68] The foundation system comprises a reinforced concrete foundation slab (420to 480 mm thick) in the basement spanning between deep reinforced concrete beams(typically 700 to 800 mm deep). There are concrete piles supporting the concretebeams or isolated slab thickenings.[69] The basement contains reinforced concrete columns and precast concretewalls.[70] The seismic load resisting system comprises:(a) the reinforced concrete columns and beams (along with stairwellmasonry walls) in the longitudinal (east-west) direction;(b) the reinforced masonry block walls in the transverse (north-south)direction; and(c) GIB-lined timber-framed walls to the top storey in both orthogonaldirections.[71] Loads generated by seismic actions on each of the floorplans are firsttransferred to the main lateral load resisting elements (namely, the moment-resistingframes) by diaphragm action of the floor structures.[72] In the longitudinal direction, the primary moment-resisting frames are theprecast concrete frames on Gridlines C and F of the building's design gridline layout.[73] At ground-floor level, lateral loads are transferred from the above systems tothe precast basement concrete walls through the ground-floor podium slab. Thesewalls then act to transfer lateral loads into the foundation and thence into the ground.Some additional lateral load resistance is provided by the precast concrete frames onGridlines C and F, which pass through the podium slab and are founded in thebasement slab level.[74] Transfer of lateral loads between the basement structure and the ground occursthrough:(a) passive pressure of the soil acting against the basement walls;(b) shear resistance of the piles;(c) passive pressure of the soil acting against the foundation beams (if thesoils below the foundation settle this mechanism may be reduced); and(d) shear friction between the underside of the basement slab and the soilbelow (if the soils below the foundation settle this mechanism may beeliminated).[75] The building incorporates six stair cores which provide access to the unitsabove the ground floor. The stair cores comprise precast concrete flights with steppedin-situ landings enclosed in reinforced blockwork walls.[76] There are also two staircases between the basement carpark and theground-floor external courtyards. These are also constructed of in-situ concrete andare reinforced with mesh in the bottom.[77] Balconies to the third storey consist of a concrete cantilever slab with mesh inthe top, supported on a reinforced concrete edge beam. Balconies to the first andsecond storeys consist of a metal deck concrete slab.[78] The basement access ramp is of reinforced concrete construction comprising a400 mm thick ramp slab, 600-by-800-mm-deep ground beams supported on600 mm-diameter bored piles and 200 mm thick precast concrete side panels. Theslab incorporates Diamond Dowel (diamond dowel) shear plates at key junctions.7The slab is constrained by being connected to the ramp side walls with starter bars(that is, connecting reinforcing bars) from the ramp walls. The ramp walls aretherefore integrally connected to the basement.Pool house[79] The single-storey pool house comprises concrete masonry block and timber.Geotechnical characteristics of the site[80] The soil profile consists of loose silty sand which becomes soft silt atapproximately 2.5 m depth. The sandier soils above 2.5 to 3 m depth have moderateliquefaction potential. At about 10.5 m depth, there is a dense sand and gravel layer.The sandier soils between 6 and 10 m depth have a moderate to high liquefactionsusceptibility.[81] The water table, which fluctuates with rainfall, has been measured at 0.7 mdepth (from surrounding ground level rather than basement floor level). The watertable is high for this area, where a depth of 1.2 to 1.5 m is more typical.7 Diamond Dowels are a trademarked construction joint.[82] There is some mounding (that is, a localised rise) of the water table to the eastside of the property (perhaps from a water source such as a spring or upwelling fromthe underlying artesian layer).[83] Given that the water table is considerably higher than the depth of the basementexcavation, sheet pile cutoff walls (that is, a type of retaining wall to keep groundwaterout of excavation areas) and a dewatering well were used when the basement wasoriginally constructed.PART II – THE LAWBurden of proof[84] The plaintiff acknowledges that as it is making claims under an insurancepolicy it has the burden of proving on the balance of probabilities every material factof its causes of action, that is every material fact relating to (a) the actual damagecaused to the buildings by the CES and (b) what is required to remedy the damage.8What constitutes damage?[85] Cover under the insurance policy is triggered by earthquake damage.[86] The case law indicates that damage requires "a physical alteration or change,not necessarily permanent or irreparable, which impairs the value or usefulness of thething said to be damaged".9 The impairment to the property must be material in thesense that it can be described as more than de minimis.10[87] For there to be cover, the damage must affect the use or amenity of thebuilding.118 As applied in recent earthquake cases — Body Corporate 335089 v Vero Insurance New ZealandLtd [2020] NZHC 2353 [Salisbury] at [55]; Jarden v Lumley General Insurance (NZ) Ltd [2015]NZHC 1427, (2015) 18 ANZ Insurance Cases 62-077 at [47]–[54]; He v Earthquake Commission[2017] NZHC 2136 at [55]; and O'Loughlin v Tower Insurance Ltd [2013] NZHC 670, [2013]3 NZLR 275 at [146]. See also David Kelly and Michael Ball Kelly & Ball: Principles ofInsurance Law (online ed, LexisNexis) at [8.0190.1] and [8.0190.5].9 Parkin v Vero Insurance New Zealand Ltd [2015] NZHC 1675 at [36], citing Ranicar v FrigmobilePty Ltd (1983) 2 ANZ Insurance Cases 60-525 (TASSC) at 60-525.10 Salisbury, above n 8, at [57].11 Bligh v Earthquake Commission [2018] NZHC 2102 at [26].[88] Moreover, "[p]re-existing damage is not a barrier to a claim for earthquakedamage".12[89] Where the element in question has a structural purpose, the damage has toaffect that structural purpose. For elements that have an aesthetic purpose, the damagemust affect that aesthetic purpose.13What does "when new" mean?[90] The insurance policy requires Vero to pay the cost of reinstatement of anyinsured property which suffers earthquake damage during the period of insurance."Reinstatement" is relevantly defined in the policy as: the restoration of the damaged portion of the property to a conditionsubstantially the same as, but not better or more extensive than, its conditionwhen new.[91] The standard of reinstatement contained in the policy is substantially similarto that contained in the applicable Vero policy considered in Parkin v Vero InsuranceNew Zealand Ltd.14[92] The "when new" standard was considered in Parkin, where the Court stated:[115] The fundamental obligation on Vero under the policy is to pay for thecost to rebuild, replace or repair the damage. The upper limit of the measureof indemnity is "when new"; Vero is not obliged to make good beyond thatstandard. On its face, this standard would appear absolute, however, thatinterpretation is tempered by the immediate context and the broader factualmatrix in which the insurance policy is required to be applied.[93] An identical definition of "reinstatement" was considered by this Court in Hev Earthquake Commission.15 The definition is also the same as one part of thedefinition of "replacement value" in the Earthquake Commission Act 1993.16 Similar12 He v Earthquake Commission, above n 8, at [67].13 Bligh v Earthquake Commission, above n 11, at [26].14 Parkin v Vero Insurance New Zealand Ltd, above n 9, at [105]. The policy in that case was thatthe insurer had to rebuild or repair the damaged portion of the home "to a standard or specificationno more extensive, nor better than its condition when new".15 He v Earthquake Commission, above n 8, at [42], affirmed in He v Earthquake Commission [2019]NZCA 373.16 Earthquake Commission Act 1993, s 2 definition of "replacement value", para (b).(but not identical) standards have been considered by this Court in a number of othercases.17[94] The distinction between "as new" and "when new" standards is important. Thedistinction was considered both in this Court and in the Court of Appeal in East vMedical Assurance Society of New Zealand Ltd.18 East establishes that "as new",when used in relation to the rebuilt or restored condition of a building, involves aquality standard, not a temporal standard. "When new", on the other hand, imports atemporal standard contemplating a restoration to the condition of the building whenbuilt (in this case in 2003).19[95] In Parkin, Mander J considered a similar "when new" policy to the presentpolicy.20 He reviewed authorities in relation to the standard, applying those to the factsin Parkin.[96] Subsequently, in Fitzgerald v IAG New Zealand Ltd, Gendall J extensivelyreferred to and applied Parkin (and other authorities) in interpreting the "when new"standard.21[97] The "when new" standard, based on the authorities, gives rise to a number ofconsiderations:(a) What is required in respect of each element differs in accordance withits purpose.(b) Where an item only has a functional purpose, the policy requires arepair that restores the component to how it functioned when new.17 Bligh v Earthquake Commission, above n 11, at [14]; Bruce v IAG New Zealand Ltd [2018] NZHC3444 at [16]; Fitzgerald v IAG New Zealand Ltd [2018] NZHC 3447 at [14]; and Salisbury, aboven 8, at [33]-[34].18 East v Medical Assurance Society of New Zealand [2014] NZHC 3399 at [103]–[104], affirmedin Medical Assurance Society of New Zealand v East [2015] NZCA 250, (2015) 18 ANZ InsuranceCases 62-074 at [38].19 See also Turvey Trustee Ltd v Southern Response Earthquake Services Ltd [2012] NZHC 3344,(2013) 17 ANZ Insurance Cases 61-965 at [17]; and Parkin v Vero Insurance New Zealand Ltd,above n 9, at [117]–[121].20 Parkin v Vero Insurance New Zealand Ltd, above n 9, at [105]–[116].21 Fitzgerald v IAG New Zealand Ltd, above n 17, at [18]-[29].Where a component also has, or only has, an aesthetic purpose, theoriginal aesthetic quality of the component must (also) be restored.22(c) The restoration is not required to be to the same level as modernstandards but rather to the same level as the original standard (subjectto the fact that current equivalent building materials and techniques areto be used).23(d) Vero's obligation under the policy is not to provide an identical replicabut to render the fact of the earthquake damage immaterial.24[98] The policy standard does not require Vero to take into consideration the impactof repairs on the resale value of the properties in the building. For example, in Parkinthe Court found that the use of packers to repair the foundation was sufficient to returnthe property to a "when new" standard, even though packers would be consideredunacceptable in a new build. It did so on the basis that:(a) the repair was sufficient to restore the structural integrity of the floorstructure; and(b) the foundation system did not have an aesthetic purpose.25[99] Mander J held:[144] There was no real estate valuation evidence given regarding thepossible impact on the value or attractiveness of the property resulting fromadopting a repair methodology involving packing the foundation, as opposedto replacing the pile. The piles themselves have no aesthetic quality. As I haveobserved earlier in this judgment, the fact the house experienced theChristchurch earthquakes cannot be hidden from the Christchurch real estatemarket. The concern of any prospective purchaser, however, will be whetherthe repair to the lower level foundations has restored the structural integrity ofthe house. The expert evidence is that Vero's remedial strategy will achievethis.22 Parkin v Vero Insurance New Zealand Ltd, above n 9, at [120]-[121]; Salisbury, above n 8, at [71].23 Salisbury, above n 8, at [71].24 Parkin v Vero Insurance New Zealand Ltd, above n 9, at [117]; Fitzgerald v IAG New ZealandLtd, above n 17, at [29].25 Parkin v Vero Insurance New Zealand Ltd, above n 9, at [142]–[144].PART III – DAMAGE AND REMEDIATIONExpert reports and conferrals[100] The evidence in this case is entirely expert evidence. There has been a plethoraof experts engaged in providing reports to the parties for approximately 10 years.[101] Suffice to say, there have been comprehensive efforts applied to identifyingand quantifying the damage done to the buildings on the site and identifying how thedamage might best be remediated having regard to Vero's obligations as insurer.I have no doubt that in the main the experts have been highly diligent and genuine intheir efforts to establish the objective truth of the damage to the buildings as best theyare able having regard to the inaccessibility of some of the building elements.[102] In late 2015, the plaintiff requested an engineering assessment of the damageto the buildings from Structex Ltd, a firm of consultant structural engineers inChristchurch. Structex reported in April 2016 and concluded that the level of damageto the primary load resisting systems appeared to be "very low". They also concludedthat there was no apparent structural damage in the most likely affected elements suchas the beam-column joints.[103] In August 2016 the plaintiff received a report from another firm of consultantstructural engineers, Quoin Structural Consultants Ltd, which the plaintiff had alsoasked to review the buildings. Quoin likewise concluded there were no apparentcritical structural weaknesses in the buildings.[104] In 2017, the plaintiff engaged Beca to undertake a damage assessment andprepare a reinstatement methodology for the damage caused to the buildings on thesite. Beca produced a report dated 10 November 2017. The lead expert for that reportwas Mr Govind. It was this report that formed the basis of the plaintiff's claim againstVero.[105] Beca also undertook a fire safety review of the apartment building. The reportis dated 1 February 2018. The lead expert again was Mr Govind.[106] The first report relied upon by Vero was a geotechnical report commissionedfrom Geotechnical Consulting Ltd (Geotech) dated 30 January 2018. Its author wasMr McCahon. This report is relied upon by Vero to establish that there was limitedsettlement of the apartment building and that the pile capacities of that building werenot exceeded by the CES forces.[107] In September 2017, Vero commissioned BMC to undertake a detailed seismicassessment of the property. BMC produced a report dated 20 March 2018. The reportwas prepared by Messrs Batchelar, Marriott and Hobbs. It was this report that formedthe basis of Vero's defence to the claim.[108] There were expert conferrals concerning the two reports between Beca andBMC on 11 June, 17 July, 6 August and 5 September 2018. At those conferralsMessrs Govind and Chen represented Beca and Messrs Batchelar and Hobbsrepresented BMC. The subsequent JER was signed by them on 5 September 2018.[109] BMC undertook a structural assessment of the pool house and provided a reportto Vero dated 11 September 2018. The report was prepared by Mr Hobbs.[110] A fifth expert conferral occurred on 21 August 2019. This timeMessrs Batchelar, Hobbs and Bull attended for Vero and Messrs Govind and Chenattended for Beca. Their updated JER is dated 27 August 2019.[111] A further expert conferral took place on 5 October 2020. The attendees at thissession were Messrs Govind and Chen from Beca and Ms Stanway from WSP NewZealand Ltd (WSP) for the plaintiff, and Mr Hobbs from BMC, Mr Bull from HolmesConsulting LP and Dr Brooke from Compusoft Engineering Ltd for Vero. Dr Brookehad been retained because of his expertise in structural engineering as it relates toreinforced concrete structures.[112] Following that conferral and subsequent judicial settlement conferences inJune and December 2020, the plaintiff engaged WSP to carry out an assessment of thepiled foundations of the apartment building to determine if they had been damaged bythe CES. This was the first time this issue had been specifically raised in theseproceedings. WSP provided a report to the plaintiff dated 12 February 2021 whereinit concluded that "pile actions during the 22 February 2011 earthquake would haveexceeded the pile capacities".[113] In response, Vero marshalled its experts Messrs McCahon, Brooke, Bull andHobbs who met on 19 March 2021 to discuss the 12 February 2021 WSP report andoverall performance of the piled foundations. They concluded, on the basis of theiranalysis and conferral, that any damage to the piles was minor and there were noindications that the ongoing performance of the piled foundations had been materiallyaltered by the 12 February 2011 earthquake.[114] WSP responded by issuing an updated pile damage report dated 4 May 2021.WSP concluded:The expected damage to the piles would result in a reduced lateral capacity ofthe piles, variable reduction of foundation stiffness across the footprint of thebuilding, producing increased deformations of the superstructure, a lessreliable foundation system to resist lateral loads and an increased vulnerabilityof the building as a whole to increased damage during future liquefactioncausing seismic events.[115] An expert conferral also occurred on 23 November 2021 between, amongothers, Ms Stanway and Mr Keepa for the plaintiff, and Messrs McCahon and Bulland Dr van Ballegooy for Vero (with Messrs Govind and Chen observing). The expertsproduced a joint expert geotechnical conferral report of the same date, with discussionlargely relating to the appropriate methodology for analysis of the pile damage andagreed next steps. Of note is that the relevant experts at the time agreed no physicalinvestigation of the pile damage was warranted in the circumstances.[116] A further conferral of experts (Ms Stanway and Mr Keepa for the plaintiff, andMessrs McCahon and Bull and Dr van Ballegooy for Vero) took place on 25 Marchand 8 April 2022, only shortly before the hearing. Messrs Govind and Chen againattended as observers. The experts produced a joint expert conferral report dated8 April 2022. They could not conclude all necessary discussions before the hearing,and instead filed additional memoranda of their individual positions on which theywere cross-examined at the hearing.Experts' evidence[117] At Appendix C to this judgment I have set out a precis of the qualifications ofthose experts who gave evidence at the hearing. It will be evident that some of themare leaders in their fields in New Zealand and internationally.[118] It is axiomatic that the best evidence of damage is observable damage, whetherthat is visual or the result of forensic investigation by testing. It is accepted that therewill be cases where, because of accessibility or cost, the experts cannot observe or testfor damage. In those cases, modelling and analysis have appropriate functions.[119] In this case there were clear examples where either the plaintiff or its expertselected not to inspect or investigate damage to the necessary extent. This has createdan unnecessary level of reliance on modelling which has proven in some instances tobe both inaccurate and unreliable.[120] Although I accept "a good expert will not adopt a fixed position, and willreflect on all the evidence as it comes to hand",26 in this case the scale of theconcessions that have been made by the plaintiff's experts alerts the Court to the needto be very cautious concerning their evidence.[121] Another unsatisfactory aspect of the plaintiff's experts' case is that at the endof the hearing the three witnesses for the plaintiff could not agree on the appropriaterepair methodology for the building foundation soil system (BFSS) of the apartmentbuilding.[122] I also note that there are remarkable consistencies between the findings of theStructex and Quoin reports commissioned by the plaintiff and the evidence of the Veroexperts. In this respect, it is notable that the plaintiff does not rely on the Structex orQuoin reports, preferring to rely on the opinions of Messrs Govind and Keepa andMs Stanway.26 Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd [2019] NZHC 277[Emmons] at [56].[123] The preponderance of the evidence is that these buildings have withstood theCES very well. The preponderance of evidence also casts Mr Govind's opinion, inparticular, as something of an outlier.Movement of the buildings during the CES[124] In order to set the scene for my assessment of the extent of the damage done toeach element of the buildings, I shall review the evidence concerning the relativemovement of the buildings during the CES. That is helpful for understanding theeffect of the CES on the buildings and the level of damage caused by it.[125] Following the November 2021 joint expert conferral, Ms Stanway andDr van Ballegooy conducted a joint inspection of the buildings and subsequently madea number of agreed observations relevant for the purposes of assessing the amount ofmovement undergone by the building during the CES which formed an appendix tothe April 2022 joint expert conferral report. Their modelling indicated that the pileswould yield with 10 mm of movement in the non-liquefied state and with 50 mm ofmovement in the liquefied state.[126] Based on those observations, Vero's experts said there was only 10 mm ofdisplacement. The plaintiff's experts gave the figure of 40 mm. Mr Keepa appearedto revise that figure to 10 to 30 mm during his evidence.[127] In the April 2022 JER, Mr Keepa and Ms Stanway point to three physicalobservations in support of this view:(a) 30 mm of displacement at the kerb offset at the western end of thebuilding;(b) 30 mm of displacement at the basement stairs adjacent to the poolhouse; and(c) tilting of the patio wall at the western end of the building.[128] However, Mr Keepa admitted that there were other possible explanations forthe offset and that he had not actually inspected the building so was reliant onphotographs.[129] Dr van Ballegooy was familiar with the buildings and carried out a detailedinspection in order to arrive at his view. He said there is no sign on-site of damagethat would be expected if the apartment building had undergone east-westdisplacements as large as 30 or 40 mm. For example, if the building had undergonelarge displacements, the basement carpark ramp would have ridden up and opened upat the base, but in fact showed no visible cracking or bulging.[130] Similarly, Dr van Ballegooy explained that the pool house and the apartmentbuilding would have moved differently during the earthquake. He said that, given thedifference in mass, if the building had been subject to 30 to 40 mm of movement, thenthere would have been visible scratching, pounding damage, staircase cracking andhorizontal displacement evident where the pool house adjoined the pavement (whichis there connected to the apartment building). Mr Bull confirmed that, if the buildingwas moving up to 40 mm in the east-west direction, he would expect significantlylarger damage to the pool house wall and the slab. None of the expected damage canbe found on site.[131] Ms Stanway and Dr van Ballegooy agreed that there was an 8 mm gapwestward between the concrete pavement and the apartment building in the courtyardof Unit 1. Dr van Ballegooy advised that this was a permanent record of the maximumeast-west displacement occurring during the CES as the pavement in that location isnot connected to the building and would not move with it.[132] Dr van Ballegooy was not challenged in cross-examination about his firm viewthat the apartment building had not moved more than 10 mm relative to the ground.[133] Dr van Ballegooy's view also accords with Mr Bull's evidence that the minorcracking observed to the moment-resisting frames is consistent with the buildinghaving undergone relatively small displacements, and not having yielded (that is,permanently deformed) as a whole.[134] BMC undertook forensic analysis of the building using the ETABS softwarepackage with the assistance of Professor Mustafa Mashal. The results of this analysisalso support the proposition that the deformations undergone by the buildings wererelatively modest.[135] The BMC forensic analysis indicates that the maximum interstoreydisplacement during the February 2011 earthquake was 0.5 per cent drift, that isapproximately 13.5 mm over the height of a storey. Professor Mashal concluded theanalysis showed the building had not yielded and this conclusion was adopted byMr Bull and Dr Brooke.[136] Vero submitted that the overwhelming weight of the physical evidence is infavour of Vero's experts' view that the maximum relevant displacement of thebuildings from the CES was less than 10 mm. It submitted that this is in accordancewith the relatively minor observed damage to the superstructure (the visible part of abuilding that sits above the ground) and the foundations. Vero also submitted that thissupports its experts' view that the piles have not been damaged and that the joints havenot been worked to the extent that they are damaged.[137] The plaintiff submitted these attempts by Vero to advance some definitivefigure for displacement are something of a "red herring" because a definitive figurecannot be arrived at from the evidence, and such a measure of displacement betweenbasement box and ground was not conclusive of whether or not there was damage tothe piles.[138] I found Dr van Ballegooy to be an excellent and compelling witness. First ofall, his qualifications demonstrate he is a recognised and leading expert who is wellqualified to give expert evidence on building displacement and its implications. Hedemonstrated his expertise with clear, consistent and compelling reasons for theconclusions he reached. His evidence on these matters was to be preferred over otherswith lesser qualifications and less internal consistency in their evidence. This isnowhere better demonstrated than in a review of the evidence concerning pile damageat [248]–[273] below.[139] In reliance on Dr van Ballegooy's evidence, I find the overwhelming weight ofthe evidence is that these buildings performed relatively well during the CES and thatthe damage to the buildings is not demonstrative of major deformation of theirstructural elements.[140] Even allowing for that general observation, it is nonetheless vital to look indepth at each element of the buildings and the more specific evidence in relation tothe nature and extent of damage caused to each element by the CES and how thatdamage should be remediated, as it is not the case that all elements react the same wayto the application of seismic force.[141] Before I undertake that task, it is necessary to consider the dispute between theparties as to the efficacy of epoxy injection as a method of remediation to meet thepolicy standard of "when new". The plaintiff says such literature as exists concerningthis debate supports a finding that its use in this case is inappropriate and unsafe. Verosays the use of epoxy injection as a remediation method is considered appropriate andsafe internationally, is mainstream and has been used on a significant scale here andoverseas.Epoxy[142] Considerable time was devoted by both parties to debating this issue in termsof:(a) a high-level literature review (including a challenge to Dr Brooke'sbona fides in respect of one report);(b) discussion on the applicability of findings by the Court in other caseswhere the Court had to consider the efficacy or otherwise of epoxyinjection as a method of repair; and(c) discussion concerning the regulatory environment and the need to relyon engineering judgement to determine whether epoxy injection willmeet the relevant policy standard.High-level literature review[143] Three literature reviews have been advanced in this case:(a) a report for the Christchurch City Council by the United States firm ofSimpson Gumpertz & Heger Inc entitled "Evaluation of Epoxy andFRP repair of Earthquake Damaged Concrete Structures" dated18 November 2014, co-authored by Ronald Hamburger (theHamburger Report);(b) a report by BMC entitled "Epoxy Resin Injection as a Repair Strategyfor Concrete" published in September 2019 and peer reviewed byDr Brooke (the BMC Report); and(c) a literature review by Ms Stanway entitled "Effectiveness of EpoxyInjection to Restore Earthquake Damaged Buildings: 400 DurhamStreet" dated 10 May 2021 (the WSP Report).The Hamburger ReportConclusions[144] The Hamburger Report noted epoxy injection of cracks has been widely usedas a means of repairing earthquake damage in reinforced concrete structures. TheReport observed that epoxy resin materials have been available in the United Statessince 1927 and engineers worldwide have specified epoxy injection of cracks inearthquake-damaged structures as a repair method since the 1970s. In the UnitedStates, building regulatory agencies, with the exception of the City and County of LosAngeles, have generally accepted this technique as a repair method for damagedconcrete structures.[145] The Report determined epoxy injection repair of cracks will not generallyrestore a structure to a substantially as when new condition. While it is possible torepair some damaged reinforced concrete structures with epoxy and restore theirpre-damaged strength, this depends on the extent and type of damage and the elementtype. In one case, damage may be de minimus, while the same amount of damage ina different element may be more serious. The degree of degradation in condition willvary and should be considered on an element-by-element basis. Epoxy injectioncannot be used to successfully repair certain damage including, but not limited to,crushed concrete, strain-aged reinforcement, fatigued reinforcement, fracturedreinforcement, or loss of plumb due to permanent earthquake-induced drift.[146] The Report found reinforced concrete structures repaired with epoxy injectionregain their peak strength (and may attain higher strength) but have reduced stiffnessand energy dissipation capacity relative to the pre-damaged construction. The stiffnessdegrades faster than that of the original undamaged element when subject to cyclicloading, which relates to the internal forces developed during earthquake shaking. Itnoted the earthquake-induced loss of bond between the concrete and reinforcing steelcan be restored under ideal conditions, but this behaviour is unlikely under actual fieldconditions, particularly at beam-column joints where access to reinforcement isrestricted. There is no reliable method of assessing the loss of bond in the field. Thisinability to fully restore bond is one factor associated with reduced stiffness of repairedstructural elements. The Report found reductions in structural stiffness will result in:(a) increased deflection of the structure under loading of various types, including wind,earthquake and floor-induced vibration, and (b) increased damage in futureearthquakes associated with that increased deflection.[147] Further, the authors concluded epoxy injection does not address reductions inthe fatigue life of reinforcing steel that occur when reinforcing steel is cyclicallystrained in the inelastic range, which is a common characteristic of reinforced concretestructures that have been cracked in response to strong earthquake shaking.[148] The Report noted that epoxy injection is generally administered to repaircracks with widths ranging from 1 to 4 mm. Many engineers believe it is notpractically possible to repair cracks smaller than 1 mm. Cracks larger than 6 mm aregenerally regarded as evidence that significant yielding and damage to reinforcing hasoccurred that cannot be repaired by epoxy. However, the use of an arbitrary crackwidth such as 6 mm to indicate the occurrence of significant reinforcing steel damagemay not by itself be reliable, as cracks tend to open and close during an earthquake,meaning the fact post-event cracking is less than 4 mm does not necessarily assurethat significant damage to reinforcing has not occurred.[149] The authors concluded the fire resistance of reinforced concrete structures isalso substantially reduced from the original construction when epoxy is utilised.Epoxy used in repair applications loses nearly all its strength and stiffness near204 degrees Celsius and cannot be relied upon for structural strength in fire conditions.Epoxy-repaired elements, subjected to extreme temperatures, lose considerablestrength and stiffness during exposure and may only regain up to 65 per cent of theirpre-damaged strength and stiffness after they cool. The effective strength and stiffnessloss varies, depending on the type of damage and temperature exposure.[150] In addition to structural issues, the Report found epoxy injection affects astructure's appearance, although these impacts can be somewhat mitigated by paintingafter the repairs are complete. Epoxy-injected concrete elements will not look as theydid prior to damage and repair as both cracking and epoxy will be obvious whenviewed closely, even when painted.Limitations[151] The majority of the literature reviewed in the Report relies on experimentaland analytical research performed at university laboratories. The authors found nopublished literature relating to the repair of existing buildings and subsequentbehaviour during an earthquake. They acknowledged there was relatively littledocumentation of the application of epoxy injection in the literature except for productdata produced by epoxy suppliers. Only two research programmes considered cyclicloading regimes. Only one research programme tested a sub-assemblagerepresentative of a moment frame. Further obvious limitations include that the papersdiscussed as research date from the 1970s to 1990s and are drawn from overseasjurisdictions.[152] On the other hand, the principal author, Mr Hamburger, has undeniableeminence. He has 40 years of experience in design, construction, education, research,evaluation, investigation and repair of commercial, institutional, and industrialfacilities. He is an internationally recognised expert in performance-based structural,earthquake and blast engineering, and has played a lead role in the development ofnational structural engineering standards and building code provisions in the UnitedStates. Mr Hamburger also has produced more than 100 publications on the topics ofbuilding performance in earthquakes, performance-based structural and earthquakeengineering. It should also be recognised that the Report was prepared in anticipationof its application in Christchurch following the CES and is specific to the policystandard of "substantially as when new", which is essentially the same as the policystandard in this case.BMC ReportConclusions[153] The authors of the BMC Report concluded that properly designed andimplemented epoxy repair strategies can, and in many instances do, provide acompellingly cost-effective alternative to demolition and reconstruction of structuresmoderately damaged by earthquakes.[154] BMC concludes that epoxy resin injection, when carried out using appropriatequality assurance measures, optimum method of placement, and an appropriate epoxyresin product, is an effective means of repairing reinforced concrete structuralelements. Epoxy resin injection was found to reliably reinstate stiffness and durability.Strength and energy dissipation capacity were largely not influenced by the repairbecause they are dependent on the condition of the reinforcement, which cannot berepaired through epoxy injection.[155] In this way, the BMC Report identified any repair strategy would require anassessment of the cause of the cracks, likely extent of damage to the structure (withconsideration not limited to residual crack width but also to damage to or extent ofyielding of reinforcement), selection of the best product based on the crack locationand size, selection of the optimum injection method, and selection of an experiencedand competent contractor. The cause of cracking and the extent of damage to thereinforcement is especially relevant because epoxy cannot alter the capacity of thereinforcement. In terms of the crack size and product used, the authors pointed toresearch that identified that viscosity strongly impacted the effectiveness of injectionfor narrower cracks (those less than 0.3 mm), and concrete microstructure and porositywere notable factors in determining the effectiveness of repair regardless of crackwidth.[156] The Report found repair using epoxy resin injection is particularly beneficialfor restoring the durability of reinforced concrete elements exposed to corrosiveenvironments. Epoxies are highly resistant to attacks from acid, alkalis and solvents,which allows for the reinstatement of protection for the reinforcement.[157] The effectiveness of epoxy resin as a repair technique is also dependent on thebond established between the concrete and epoxy. If cracks are actively leaking, thiswill impede the epoxy from bonding well with the concrete, as will the presence ofdust, moisture, or other foreign substances.[158] In terms of the behaviour of epoxy-repaired reinforced concrete beams underfire conditions, the Report cited research that found the strength reduction in repairedelements is dependent largely on the presence of fire protection coatings, the thermalgradient, and type of cracks. For cracks related to flexure, for instance, stiffnessdecreased significantly for high temperatures where the tensile strength of the epoxywas a key load path, whereas the fire effects on the member are not significant if thereinforcement provides the tensile load path.Limitations[159] This Report was commissioned and funded by BMC as an internal project toevaluate the efficacy of epoxy resin as a repair technique for damaged concreteelements. There is therefore an argument that it lacks the same pedigree as theHamburger Report.[160] The plaintiff submitted the report ought not be relied upon because one of thereviewers was Dr Brooke and the timing of the Report was significant in that itappeared to have been produced for use in the Salisbury case.27 In fact, the plaintiff27 Salisbury, above n 8.mounted a trenchant attack on Dr Brooke's integrity and bona fides which I rejectoutright.[161] I consider the plaintiff's characterisation misplaced as the Report was peerreviewed by an expert other than Dr Brooke prior to publication and it clearly widelyreviews the literature by citing 15 papers which consider several different aspects ofthe use of epoxy in repairing earthquake damage in concrete structures, includingdifferent techniques of using epoxy, different types of epoxy, and use on different typesof concrete. The Report was written with the interests of the wider industry in mind.[162] It is notable that the Report considered more recent literature (10 paperspublished after 2000) in a bid to keep up with what it describes as the "the continuallydeveloping advances in epoxy technology".[163] In this regard, the authors deliberately refrained from commenting on earlierguidance on the efficacy of epoxy, which makes the task of reconciling this researchwith the Hamburger Report more difficult. In particular, the authors noted thatdevelopments in epoxy resins and repair techniques were ongoing. They said that astechniques are advanced and studied to optimise efficacy, the results generallyimproved. As an example, they referred to the ability for epoxy repair to restore bondbetween the reinforcement and concrete where earlier research and guidance from the1980s suggested that epoxy was not effective at restoring bond, but research from 1990using a different technique showed it was effective.WSP ReportConclusions[164] Ms Stanway authored the WSP Report. She concluded that, while repair of acracked reinforced concrete element by epoxy injection is possible, the availablenational and international literature does not support BMC's view that epoxy injectionof cracks will restore the buildings at 400 Durham Street to an "as when new"condition.[165] The Report first noted that, in assessing damage after an earthquake, crackwidths are residual and do not reflect the maximum crack width that has occurredduring the earthquake shaking. Therefore, observation of crack widths is not, inisolation, an adequate indicator of damage to the structure.[166] Ms Stanway considered that epoxy injection will not restore the stiffness of thebuilding to its original condition. Research shows that there will be around 20 per centreduction in stiffness of the damaged concrete element/assembly following the repair.This is because epoxy injection cannot reliably repair bond between reinforcing barsand the surrounding concrete and not all cracks can be injected due to practicalconsiderations (namely, internal cracks which form in the concrete around deformedreinforcing bars cannot be accessed by crack injection unless the cracks exit at thesurface to be injected). Additionally, the research shows that the stiffness of therepaired elements degrades faster than the original element when subjected to furtherseismic loading.[167] Ms Stanway stated it is also important to consider the effects of a residualreduction in stiffness of the buildings, following epoxy injection of the concretecracks, and the effect this would have on the performance of the buildings as wholewith a greater likelihood of damage to structural and, in particular, non-structuralelements in future earthquake events. Damage would also occur at lower magnitudesof earthquakes.[168] A key consideration identified in the Report is that the effectiveness of epoxyrepair is highly dependent on contamination in the cracks. The literature notes theolder the cracks, the more likely they are to be contaminated with debris, algae anddust that may be impossible to remove and which will inhibit epoxy penetration andbonding. The Report noted there are no in situ tests available that can confirm thatfull adhesion of the epoxy has occurred, that bond has been fully restored to thereinforcement and that no damage has occurred to the reinforcement. Similarly, crackswhich have closed due to significant axial load on the concrete elements may not havehad significant build-up of dirt within the cracks, but any concrete dust that wascaptured in the crack during the cyclic deformations of the building will be difficult toremove. According to the Report, this would cause significant practical limitationsfor effective full penetration of the crack with epoxy injection.[169] The WSP Report further highlighted that the strength of epoxy can besignificantly affected in a fire. That is, the cracks injected with epoxy will lose thestrength and stiffness gains provided by the epoxy injection when subjected totemperatures in excess of 100 degrees Celsius.[170] The Report also identified that epoxy injection of the cracks cannot repaircorrosion that has occurred to the reinforcement and therefore cannot return thereinforcement to an "as when new" condition. Where cracks extend to thereinforcement, there will be ongoing corrosion deterioration of the reinforcement. TheReport concluded epoxy injection cannot assist in repairing the reinforcement to an"as [when] new" condition.[171] Finally, the Report recognised that epoxy-repaired concrete is visuallyunappealing and will reduce the visual amenity of the building. Concrete elementswould require a coating system to reinstate the visual amenity.Limitations[172] The WSP Report is obviously to be treated with a degree of caution insofar asit has been prepared by WSP exclusively for the plaintiff in relation to its insuranceclaim. Ms Stanway is clearly of good repute, being a structural engineer who hasco-authored various technical papers regarding seismic performance of buildings. TheReport is also useful to the extent it attempts to reconcile the effectiveness of epoxyrepair with the applicable policy standard of when new.Major themes/considerations[173] Having reviewed the reports, it is apparent the researchers agree on thefollowing propositions:(a) the efficacy of epoxy injection as a repair method is context-specific;(b) use of the epoxy injection method is dependent on the extent and natureof the damage;(c) the extent and nature of damage should be considered on an element-by-element basis;(d) epoxy injection is appropriate for minor or moderate damage ratherthan severe or structural damage which includes crushed concrete,strain-aged, fatigued or fractured reinforcement, loss of plumb due topermanent earthquake-induced drift, and loss of bond between concreteand its reinforcement;(e) epoxy injection cannot repair corrosion;(f) it is not sufficient to rely solely on a particular measurement of crackwidth to determine whether damage to reinforcing has occurred;(g) epoxy-repaired elements may lose strength and stiffness after beingsubjected to extreme temperatures, but any such reduction is dependenton the presence of fire protection coatings, the thermal gradient andtype of crack damage;(h) the presence of contamination of cracks by foreign substances mayinhibit the efficacy of epoxy injection — trial testing should occur tosee if the contaminants can be flushed out first and, if not, epoxyinjection is contraindicated; and(i) epoxy injection is likely to reduce the visual amenity value of astructure but may be remediated by painting or other means of cosmeticrepair.[174] The researchers differ on the following:(a) the effects of a residual reduction in stiffness of an epoxy-repairedstructure;(b) whether the strength of a reinforced concrete element can be restoredby epoxy injection; and(c) the extent to which epoxy is fire-resistant.[175] I accept the literature confirms that the efficacy of epoxy in the repair ofearthquake-damaged buildings is still a developing field (regardless of the fact thatepoxy use may be widespread). However, that fact does not in and of itselfcontraindicate its use.[176] There is, however, a large measure of agreement as to the considerations to beapplied when assessing the appropriateness of epoxy injection as a repair methodologyas set out in [173].[177] I shall now deal with the controversial matters set out in [174]. I also note theplaintiff submitted the sheer scale of the proposed use of epoxy injection in thebuildings is another factor that suggests the remediation method is inappropriate.The effects of epoxy injection on the residual stiffness of the structure[178] In structural engineering the term "stiffness" refers to the rigidity of a structuralelement. In general terms this means the extent to which the element is able to resistdeformation (that is, change in size or shape) or deflection (the degree of change inshape) under the action of an applied force, such as seismic activity, and return to itsoriginal formation. The stiffer the element, the less deformation it will undergo toresist the same loads.[179] At [5.6] of the Hamburger Report the authors opine that "[t]he stiffness andenergy dissipation capacity of a damaged structure repaired with epoxy injection ofcracks cannot be fully restored".[180] There are two critical factors here:(a) the appropriateness of epoxy repair when the bond between thereinforcing steel and the concrete has degraded by yielding; and(b) the appropriateness of epoxy repair when only the concrete element ofthe structural elements has been damaged by cracking.[181] There is agreement between the parties that as a result of cracking there willhave been loss of stiffness in some of the reinforced concrete elements of the buildings.The loss of stiffness means that the buildings will suffer greater drift in a futureearthquake.[182] Dr Brooke acknowledged that the stiffness of elements after epoxy injection isgenerally lower than their stiffness prior to damage. He suggested that a 20 per centreduction, as noted by Ms Stanway from the literature, was "a reasonable startingpoint".[183] Dr Brooke and Ms Stanway are agreed that the "occurrence of a crack reducesthe stiffness of the reinforced concrete element".[184] It appears that for damage typified in [180(a)] repair by epoxy injection wouldbe inappropriate. That would be because the structural function of the buildingelement would be significantly compromised.[185] For damage typified by [180(b)] there may be cases where any increase indisplacement during future earthquakes would be confined to non-structural elementsand the damage would be negligible in the sense that it would not affect the repairsrequired for the element. To quote Dr Brooke:It is also noteworthy that an increased displacement would commonly notaffect the outcome for an element in terms of the repairs required. Forexample, if imposition of relatively small displacements (0.21% drift onaverage) on plasterboard wall linings will cause minor damage requiringrepair of the joints between the sheets. Much larger displacements (0.71% drifton average) are required to increase damage to a point where the method ofrepair changes to require replacement of the plasterboard sheets.(footnote omitted)[186] The plaintiff argues epoxy injection of cracks will not fully restore the stiffnessof the buildings. Ms Stanway says that the reduction in stiffness will lead to anincrease in displacement in a future earthquake event which would not occur in its"when new" condition. Her opinion of course is founded on there having been damageof the type set out in [180(a)].[187] Dr Brooke agreed that the repaired buildings would have a minor reduction instiffness compared to their state "when new". He characterised this reduction assomewhere in the range of five to 10 per cent. He also characterised the associatedpossible increase to displacement during a future earthquake event as insignificant andunlikely to cause additional damage. He based his opinion on there being no damageof the type set out in [180(a)].[188] These differences will be resolved by the findings below on the nature of thedamage sustained to the relevant individual building elements.Whether the strength of a reinforced concrete element can be restored by epoxyinjection[189] This question requires consideration of the impact of cracking on thereinforced element, which in turn requires consideration of (a) the orientation of acrack and (b) the width of the crack, with cognisance taken of the presence or absenceof significant axial load along the crack and how the cracked element is reinforced.[190] Structural cracking in this building is divided into two categories:(a) cracks that are perpendicular, or almost perpendicular, to the span of anelement (that is, approximately vertical in a beam or horizontal in a wallor column); and(b) cracks that are inclined at an angle or a diagonal.[191] Perpendicular cracks occur due to tension forces acting along the length of amember, which are commonly a result of bending. Dr Brooke explained thatperpendicular cracks in a building generally do not affect the strength of the crackedelements because longitudinal reinforcement crosses the cracks. He said the strengthof this reinforcement would not degrade until the cracks were "many millimetreswide". Allowing for the potential closure of such cracks at the conclusion ofearthquakes, cracks of many millimetres width are indicated where there is slidingalong crack interfaces, spalling of concrete or buckling of reinforcement.[192] Based on the evidence of Dr Brooke, repair by epoxy is likely contraindicatedin the case of perpendicular cracks where spalling of concrete has exposed longitudinalreinforcing bars or where, in the case of prestressing tendons, the crack width indicatesthat the prestressing has been compromised.[193] Inclined or diagonal cracks are often caused by shear forces. Dr Brooke hasexplained that it is incorrect to conflate the occurrence of a diagonal crack with theinevitable onset of "brittle failure mode", or in other words structural failure of theconcrete structural element. Failure mode would only occur where cracks' widthsreached several millimetres. Epoxy repair would be contraindicated in thosecircumstances.[194] Instead, according to Dr Brooke, "occurrence of a diagonal crack simply meansthat the tensile strength of the concrete was exceeded by stresses perpendicular to thecrack".[195] He explained that this possibility is anticipated by structural engineers whendesigning buildings. Reinforcement is positioned so that the stresses that caused thecrack can redistribute and continue to be resisted.[196] If diagonal cracks in excess of 0.2 mm width are epoxy injected, anyunrepaired diagonal cracks would not materially reduce the strength of the building.The extent to which epoxy is fire resistant[197] The Hamburger Report concludes that epoxy resin used in repair loses nearlyall its strength and stiffness near 204 degrees Celsius and cannot be relied upon forstructural strength in fire conditions.[198] Mr Govind and Ms Stanway relied on the Hamburger Report to say that thebuildings as a whole would be at risk in the event of a fire as a result of epoxy injection.[199] I prefer the evidence of Dr Brooke that although epoxy is vulnerable to damageduring a fire this vulnerability would not have any material effect on the buildings.Further, he said that the epoxy-repaired buildings would not be any more vulnerableto a typical fire compared to the buildings "when new". Finally, he opined that firedamage to epoxy would not materially increase the overall difficulty or cost of repairof the buildings if subjected to a serious fire.[200] Vero also engaged a fire engineer, Mr Jonathan Nyman, who advised that theproposed epoxy repairs would not have any effect on the fire resistance ratingperformance of the buildings. Mr Nyman's evidence was not challenged, and theplaintiff did not call evidence from a fire engineer.[201] I therefore conclude that considerations relating to fire do not contraindicateepoxy injection as a remediation method in this case.The scale of the proposed use of epoxy injection[202] According to Vero's remediation method, the application of approximately3.3 km of epoxy would be used in the repair. The plaintiff says that none of Vero'sexperts advanced any definitive example where 3.3 km of earthquake cracks have beenepoxy repaired in a building comparable in nature to the Madison Apartments withcomparable damage.[203] The Court has been given no definitive evidence that any building inChristchurch (whatever its size and damage) has undergone epoxy repairs to thisextent. What is therefore being proposed by Vero and BMC is unprecedented on theevidence and the extent of cracking to be epoxy repaired must increase the risks.[204] For example, the plaintiff submitted the sheer scale and unprecedented use ofepoxy contraindicates its use, having regard to:(a) loss of overall stiffness in the building that will not be restored;(b) the number of cores and resultant damage from the remediation methodproposed;(c) the risk of damaging reinforcing from the greater number of cores;(d) the potential extent of damage to masonry from epoxy injection;(e) the risk of inconsistent quality of application, with epoxy more likelyto be applied by different personnel at different times; and(f) the likelihood of areas being missed or inadequately injected (beingissues Mr Hobbs identified in other cases he reviewed).[205] I have dealt with the concern expressed in [204(a)] elsewhere.28 The mattersraised at [204(b)] to (d) ought to be covered by preliminary testing and the risksresolved on the basis that if the epoxy injection method is not considered efficaciousanother form of remediation will be considered. As far as the matters raised at [204(e)]and (f) are concerned, there was no evidence of such risks arising with the proposedcontractors in this case.Applicability of findings by the Court in other cases[206] Counsel for Vero said this case has a remarkably similar factual matrix to thosein Body Corporate 335089 v Vero Insurance New Zealand Ltd (Salisbury) andEmmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd(Emmons) and that the Court in both cases held that epoxy repair will remediatedamage to the "when new" standard.29 Vero submitted the Court could rely on thosefindings to inform its decision.[207] The plaintiff submitted the suggestion that Salisbury was "similar to this" caseis unsustainable. Salisbury involved four single-storey garages and four three-storeyapartment buildings (with three units each) with a footprint of 126 m2 each — morethan 15 times smaller than the basement footprint of the apartment building here. Thegarages in Salisbury were stiff and squat (unlike here) and it did not appear any of theapartments had reinforced concrete columns and beams. None of the buildings hadbasements and water table issues. The only length of cracking referred to in the28 In the discussion on stiffness at [178]–[188].29 Salisbury, above n 8; Emmons, above n 26.Salisbury judgment to be subject to epoxy repair was a length of 2.5 m, incontradistinction to the 3,300 m in this case. Ms Stanway said there was no relevantsimilarity between the Salisbury buildings and the buildings currently at issue.[208] Mr Hobbs asserted that Salisbury was of some relevance despite not referringto it in his brief of evidence. Mr Hobbs' position was undermined by Dr Brookeobserving that there was "insufficient information" in the Salisbury judgment to makeany conclusions as to the state of the building there for the purposes of comparison.[209] Accordingly, I agree Salisbury cannot sensibly serve as any comparator in thiscase.[210] The Emmons judgment contains no analysis of the use of epoxy. It recordsthat: "Repair by epoxy injection as such is not an issue between the parties, to achievethe when-new standard, which differentiates this case from others".30[211] Vero's reliance on Emmons, boiled down, is an observation by Dr Brooke thatan engineer in that case, Mr Hare, did not express concern that "the future performanceof the building would be detrimentally affected by a change of stiffness followingepoxy repair". The Court has no proper detail around this. Dr Brooke did not set outin his brief any facts to enable the Court to entertain a comparison. Moreover, Mr Hareought to have been called as a witness by Vero for it to sensibly advance this reasoning.[212] Accordingly, I conclude that there is no meaningful context from which theCourt could reliably draw any useful comparison between Emmons and this case.[213] This case must instead be determined on its own facts and the Court's ownanalysis of the experts' engineering judgement relating to these buildings and theirown unique damage in order to identify the most appropriate remediation method tobe applied in these circumstances.30 Emmons, above n 26, at [64].Regulatory environment[214] There are no "rules" endorsed in New Zealand by any regulatory orauthoritative professional body validating the use of epoxy to repair earthquakedamage.[215] Accordingly, the parties' experts need to rely on engineering judgement in thecircumstances of the case to determine whether epoxy repair will meet the policystandard.[216] Dr Brooke advanced a bulletin published by BRANZ (formerly the BuildingResearch Association of New Zealand) as supportive of the use of epoxy.31 BRANZpublishes such bulletins to provide "easy-to-read good practice guidelines on a widerange of topics relating to building and building performance". However, thehigh-water mark of its significance is that it is "an example of long acceptance ofepoxy as a means of repair of cracking in New Zealand".[217] As the bulletin itself states, it is confined to "minor non-structural crackrepairs". Structural repair techniques are expressly stated to be "outside the scope ofthis Bulletin". Dr Brooke consequently conceded that it does not provide"authoritative assistance". Indeed, Mr Govind considered that the bulletin has norelevance to the structural repairs being considered in this case and Mr Hobbs acceptedthat it is not relevant or of assistance "to the judgement being made in relation to useof epoxy in this building".[218] Dr Brooke also placed reliance on Ministry of Business, Innovation andEmployment (MBIE) determination 2013/071.32 The issue to be resolved in thatdetermination was whether the proposed repair methodology for cracks in anunreinforced concrete foundation of a residential house was Code-compliant. MBIEfound it was. The basis for Dr Brooke's reliance on the determination is his31 BRANZ "Issue 535: Repairing Cracks in Concrete" BRANZ Bulletin (online ed, Porirua, June2011).32 Ministry of Business, Innovation and Employment "Determination 2013/071: The compliance ofproposed repairs to an earthquake-damaged foundation including partial replacement of a concreteperimeter foundation wall, at 130 St Martins Road, St Martins, Christchurch" (14 November 2013)<www.building.govt.nz>. MBIE determinations are legally binding decisions made by MBIE fordisputes relating to building work under the Building Act 2004 and the Building Code.interpretation emanating from it that epoxy is "a comparable material to concrete interms of its compressive strength and in terms of relative weakness to tensile loading".[219] Ms Stanway took no issue with that statement to the extent it was made in thatparticular context and emphasised that context was important. She said thatdetermination did not meaningfully advance any of the issues in this case because itconcerned an unreinforced foundation. The Court is being asked in this case to dealwith a reinforced foundation and the two systems are not comparable.[220] The fact that the Christchurch City Council has consented repair schemes usingepoxy also does not advance the issues. As noted by Mr Govind, the Council does notwork to a "when new" policy standard.[221] Dr Brooke also referred to the widespread acceptance of epoxy repairinternationally. For example, he identified standards and specifications defining howepoxy should be used for repair of cracks in concrete in the United States from theAmerican Concrete Institute, the United States Army Corps of Engineers, and theFederal Emergency Management Agency, as well as from other comparablejurisdictions. However, I am not satisfied there is in these standards any meaningfulendorsement of epoxy overseas which could be appropriately applied to the NewZealand context and with reference to the policy standard in this case.[222] Ultimately, Mr Hobbs accepted there are no regulations in New Zealand toendorse epoxy repair in this building.[223] Notwithstanding this state of affairs, the Court is still in a position where it cantake note of the widespread use of epoxy injection methods (since the 1970s) and theiracceptance by eminent structural engineers in accordance with the considerations setout at [173] and what follows.Summary of the Court's approach to the use of epoxy injection[224] In determining whether epoxy injection is an appropriate method ofremediation to the policy standard of "when new", I have regard to the following:(a) its widespread acceptance and use by the engineering community bothin New Zealand and internationally;(b) acceptance by all experts of those propositions set out at [173];(c) the differences of opinion set out at [174] and the discussion of thosedifferences at [178]–[205];(d) no assistance can be gleaned from the matters set out at [206]–[213]and [214]–[222];(e) it falls to the Court to examine each building element in dispute fromthis vantage point; and, finally(f) there is acknowledgment that there needs to be preliminary testing ofthe suitability of epoxy injection, and difficulties in the execution of theproposed repair may be encountered to the extent that other repairmethods may ultimately need to be identified.Damage to the apartment building elements[225] As a result of the successive joint expert conferrals the issues for the Court todetermine have been finely honed.Agreed damage and remediation[226] The parties agree on the existence and extent of some of the damage to thebuildings. This damage is:(a) to the stairs and landing — cracking in the stairwell masonry wall andto the stairs and landing, spalling of the plaster render to the stair walls,and that the stairs to Unit 2 have dropped 10–15 mm;(b) to external garden precast walls — cracking;(c) to internal linings — cracking and water damage;(d) to hard landscaping — cracking and settlement; and(e) to the ground below the pool house slab — voids under the slab.[227] There are other aspects of damage the parties agree on but disagree on thenature, extent, severity and/or significance of the damage. These aspects of damageare discussed below where relevant in respect of each building element.[228] The parties also agree on the following methods of remediation:(a) for the external garden precast walls— replacing the damaged sections;(b) for the internal linings — removing and reinstating all the water-damaged linings, removing and reinstating all water-damaged skirtings,and repairing cracks in the GIB; and(c) for the hard landscaping — removing and replacing it.Building elements in contention[229] The Court must identify the extent of damage to the following buildingelements before determining the appropriate remediation methodology to be appliedto their repair:(a) the building foundation soil system (BFSS), comprising:(i) soil/substrate;(ii) pile heads;(iii) basement floor slab;(iv) ground beams in the basement floor slab;(v) diamond dowels; and(vi) shear keys;(b) basement superstructure:(i) basement precast concrete walls; and(ii) moment-resisting frames (columns/beams);(c) Unispan floor planks and structural topping;(d) ground-floor slab;(e) ground-floor beams;(f) apartment building superstructure(i) concrete slab on the first and second floors;(ii) first and second-floor balconies;(iii) third-floor balconies;(iv) third-floor housing units(v) timber floor on the third level;(vi) masonry block walls;(vii) windows and joinery;(viii) stairs and landings;(ix) plasterboard walls and ceiling linings; and(x) pool house and gym.BFSSDescription[230] The building elements that comprise the BFFS of the apartment building arethe soil/substrate, piles, basement floor slab, the reinforced floor beams in the slab,diamond dowels, and shear keys. I refer to [74] which explains how these elementsprovide the lateral load resistance to seismic activity by transferring the lateral loadsbetween the basement structure and the ground.[231] The basement slab is a very large area, measuring approximately 2,000 to2,100 m2. During construction cast-in-situ concrete piles were broken back to exposethe reinforcing and this was then tied into the reinforcing for the steel reinforcedground (or foundation) beams. The bottom half of the ground beams were poured tothe base level of the exterior precast panels (or basement walls). Following installationof the exterior precast panels, the concrete floor sections (that make up the basementslab) were poured between the ground beams. The joints between the slab sectionsand between the slab sections and the panels were then fitted with a joint sealant.[232] Diamond dowels were installed at 500-mm intervals across the cold jointsbetween the sections that make up the basement floor slab. Diamond dowels are steelplates that have a structural purpose, which is to transfer the load on the basementfloor slab to the reinforced basement ground beams. The ground beams then transferthe load to the concrete piles.[233] Shear keys were also installed. Shear keys function as structural fuses toprevent the transmission of large seismic forces to the piles.[234] The basement sits in soils with a moderate to high liquefaction potential and ahigh water table. The water table will rise and fall on account of heavy rainfall andseasonal fluctuations.[235] It is agreed there is extensive water ingress into the basement.[236] The basement pump needs to operate 24 hours a day, seven days a week.Anecdotal evidence is that the basement pump did not operate before the CES. Nochallenge was made to this evidence.[237] The structural integrity of each of the BFSS elements listed in [229(a)] isessential to the ability of the apartment building's structure to resist earthquakes.[238] Because much of the BFSS is beneath the basement (which is 3 m below thesurrounding ground level), observing damage to all the BFSS has proven difficult. Forinstance, it is not possible to observe the underside of the basement slab itself (to seethe depth of the cracking of sections of the slab), the pile heads, the pile shafts and anydisplacement of the substrate. Both parties accept, however, there is likely to bevoiding under the slab as a result of the CES.Soil/Substrate[239] It is common ground between the experts that there has been some settlementof the land under the apartment building, creating a void between the soil and thebasement slab.[240] This settlement reduces the effectiveness of the BFSS as explained in [74].[241] The experts, Messrs Keepa and McCahon, are agreed that this settlementrequires ground improvement.[242] Mr Keepa's evidence (in his initial brief) is that the ground improvement couldbe effected by "full depth mass stabilisation of the liquefiable layer using the jetgrouting technique". He explained this would require drilling a significant number ofholes in the basement slab and that during this process the ingress of water would needto be controlled.[243] However, the plaintiff took exception to Vero's proposed manner of jetgrouting, which involved using a resin product, Sika 101, to temporarily stop waterfollowed by injecting another product, Sika 201, to permanently fill the void. It didso for four reasons:(a) Vero has done no testing to see if the proposed method is viable;(b) there was no proof of warranty for the proposed method;(c) the void cannot be characterised as a "crack" and therefore the extentand importance of the work militates against this method; and(d) the basement slab would be significantly compromised by thesignificant number of injection ports required as part of the proposedmethod.[244] Dr Brooke and Mr Wilson conceded trials should be undertaken before thereis a final commitment to the method of remediation to be employed because it may bethat this method is contradicted after testing.Pile heads[245] It is accepted by the experts that if the apartment building has moved by anyamount to damage the pile heads there will be a loss of stiffness in the BFSS. Thatwould materially negatively affect the building's performance in a future earthquakeevent. Naturally it would also affect the appropriate repair methodology. The partiesalso agree that if there is damage to the piles, it is likely limited to the top of the pilesand the pile-foundation beam connections.Plaintiff's position[246] As outlined at [25]–[33] above, the plaintiff seeks an adjournment in relationto the issue of damage to the pile heads and submits that leave should be granted tothe parties so they can continue to moderate this issue. The plaintiff says the Courtcannot sensibly make a positive factual finding that there is no pile head damage, andsuch a conclusion is at risk of being contradicted by subsequent physical testing andinvestigation.Vero's position[247] Vero says the plaintiff should not be afforded any further opportunity to attemptto prove damage to the pile heads and the Court should decline the plaintiff'sadjournment request for the following reasons:(a) the issue of damage to the piles was not raised until late-2020, almosttwo years into the life of this proceeding;(b) over the following two years, WSP has produced successive iterationsof a simplified model, concluding first that there was damage to theshaft of the piles from toe to head, second that the damage was confinedto the pile heads, and then that the absence of damage to the pile headscould not be ruled out; and(c) only one expert, Mr Govind, in the plethora of experts remains of theview that the piles have been damaged and that no weight should beattached to his view as he is out of step with all the other experts.Discussion[248] The suggestion that damage has occurred to the piles was not raised by anyengineer who inspected the buildings (including the plaintiff's experts) untilMs Stanway of WSP was engaged in 2020.[249] When WSP was initially engaged, it used modelling to conclude there wasextensive pile damage which justified demolition and rebuild of the entire apartmentbuilding. Ms Stanway and Mr Keepa opined that there would be damage to the toeand shaft of some or all of the piles.[250] Experts for Vero strongly challenged those findings and the calculations andjudgement underpinning them. Most notably, they identified that WSP's modellinghad been undertaken by reference to different sized piles to those in the actual buildingand the analysis failed to take into account the fact the piles were tied into the basementfloor slab.[251] The plaintiff's experts then presented a revised model as part of their responseto those challenges. The result of this revised model was that damage was no longerpredicted to the toe and shaft of the piles.[252] Vero then engaged Dr van Ballegooy as an expert on modelling to comment onthe plaintiff's work. Dr van Ballegooy pointed out that a number of the inputs usedfor the plaintiff's modelling were incorrect. He concluded the WSP modellingapproach was overly simplistic and of a nature typically used for the design ofrelatively simple new buildings. He said such an approach was unsuitable for aforensic, balance of probabilities assessment, which required more sophisticateddynamic analysis. Specifically, Dr van Ballegooy opined there were a number ofcritical elements missing from the simplified model (for example, the resistance fromthe ground beams was missing and the inertial loads for liquefaction were too high)that cumulatively resulted in a significant overestimation of the demand in the piles.[253] Following receipt of Dr van Ballegooy's opinion, the plaintiff again revised itsmodelling to decrease demand on the piles.[254] Following the April 2022 expert conferral and two working days before thestart of trial, the plaintiff served "revised" briefs of evidence and reply briefs fromMs Stanway and Mr Keepa which contained:(a) justifications for the revised modelling calculations first presented toVero's witnesses on 23 November 2021; and(b) a major revision of the plaintiff's position on whether the piles weredamaged.[255] Ms Stanway now accepts that the conclusion reached in her initial brief ofevidence which called for demolition of the apartment building on the basis of piledamage was wrong. Similarly, Mr Keepa accepted that his recommended repair scopehad undergone a major change from recommending demolition on the basis of piledamage to being unable to establish pile damage.[256] The position the plaintiff's experts held following the April 2022 conferral isthat using simplified modelling (such as that carried out by WSP) to estimate relativedisplacements "results in considerable uncertainty" and is not reliable for reaching aconclusion that the piles had (more probably than not) been damaged.[257] The plaintiff's main experts on piles are therefore unable to conclude that intheir view the piles have suffered damage. I also refer to the earlier reports of Structexand Quoin which made no mention of damage to the piles.[258] All experts for Vero and for the plaintiff (except Mr Govind) now agree thatthe high point of the plaintiff's case is that "damage to the pile heads cannot be ruledout". Mr Govind continued to advance the view that the pile heads were damaged butcited no evidence in support of this view. I regard him as an outlier in this regard andI do not place any weight on his opinion in respect of this issue.[259] The modelling employed by the plaintiff's experts to arrive at their conclusionthat the piles may be damaged is unreliable by their own admission and should bedisregarded. This is illustrated by the evolution of the model during the course ofthese proceedings which has now gone through four iterations as set out above. Eachtime the plaintiff's experts have provided and revised modelling of the pile damage,Vero's experts have engaged with the plaintiff's work and pointed out issues whichthen forced the plaintiff's experts to issue a further iteration.[260] In addition, Dr van Ballegooy has provided supplementary evidence setting outwhy the revised modelling presented by the plaintiff's experts was not reliable oruseful for predicting whether the piles were damaged. In summary:(a) the input data was produced for a different purpose and is inappropriatefor modelling earthquake damage to the building;(b) the modelling relies on unpublished research which Vero's experts donot have access to and has not been validated;(c) the modelling uses data for different ground conditions than thosepresent at the site; and(d) the methodology used is inappropriate and does not produce reliableresults.[261] Dr van Ballegooy's evidence on the revised model was not challenged by theplaintiff. I found Dr van Ballegooy's obvious expertise and his evidence to becompelling. That is particularly so in the face of the extremely uncertain evidenceprovided by the plaintiff, which left the Court with little confidence it could be reliedon because of the deficits enumerated by Dr van Ballegooy.[262] Finally, the results of the modelling do not accord with the observed damageat the building. The courts have held that in these circumstances such a model isinsufficiently reliable and should not be given any weight as a measure of damage andrelated scope of repair.33[263] Dr van Ballegooy is of the view from the observed damage on-site that themaximum relevant displacement of the basement box was not more than 10 mm. Asdiscussed at [125]–[127] above, WSP's own modelling indicates that the piles wouldyield with 10 mm of movement in the non-liquefied state and with 50 mm ofmovement in the liquefied state. Mr Keepa confirmed in cross-examination that ifthere was only 10 mm of relative displacement between the pile head and pile toe thenthe piles were unlikely to be damaged.[264] Even if the level of displacement was that alleged by the plaintiff's experts,Mr Bull's evidence is that this still would not have resulted in material loss ofrotational stiffness to the pile heads (that is, their ability to resist rotation caused byapplied moment) as their capacity for recovery would not have been exceeded.[265] Furthermore, even if the piles have undergone a material loss of rotationalstiffness, Mr Bull's evidence is that this will not result in greater displacement of the33 Vero Insurance New Zealand Ltd v Morrison [2015] NZCA 246 at [54]; Prattley Enterprises Ltdv Vero Insurance New Zealand Ltd [2015] NZHC 1444, [2015] 18 ANZ Insurance Cases 62-075at [97]-[104].superstructure in a future earthquake event, as the alleged reduction in stiffness wouldnot affect the ability of the superstructure itself to take lateral loads.[266] The plaintiff's experts have claimed at various points that the alleged damageto the piles had reduced the stiffness of the BFSS, and that this would lead to increaseddeformation of the building superstructure and consequently a greater level of damageto structural and non-structural elements during future events.[267] Mr Bull observed that this was contrary to the performance of the building inthe June and December 2011 earthquake events, where no significant additionaldamage to the superstructure and fit-out was observed. His evidence on this point wasnot challenged.[268] The physical evidence, of relatively minor damage and displacements aroundthe basement exterior and in the basement structure, suggests little or no pile damagehas occurred. None of the indicators which would trigger concern about the possibilityof pile damage, such as large amounts of differential settlement, sidewaysdisplacement, or signs of overload in the basement slab, are present at the building.[269] In summary, the plaintiff has plainly failed to meet the onus of proofconcerning damage to the piles. It does not have physical evidence of damage and theresults of the modelling are inconclusive in the opinion of its own experts.[270] It is against that backdrop that the plaintiff seeks a partial adjournment of thematter in order to undertake some physical investigation of the piles/and or furthermodelling.[271] In Jarden v Lumley General Insurance (NZ) Ltd, the plaintiffs, in seeking toprove damage to their property was caused by the CES, alleged there were voidsunderneath the concrete floor slab.34 However, the plaintiffs produced no directevidence of these voids apart from anecdotal evidence nor had they undertaken stepsrecognised as "good practice" to confirm the voids' presence. Kós J held that the34 Jarden v Lumley General Insurance (NZ) Ltd [2015] NZHC 1427, [2015] 18 ANZ Insurance Cases62-077.plaintiffs had failed to meet the onus of proof. His Honour stated the plaintiffs'obligation was to put their best evidence forward in relation to each item of damageand show that it was more likely than not that it had occurred. The fact that betterevidence may have been obtained with more effort was of no use to the plaintiffs.35[272] I decline the plaintiff's application for adjournment as it would be unjust asbetween the parties for the following reasons:(a) when offered the chance to conduct a joint inspection of the piles inmid-2020, the plaintiff refused;(b) Mr Keepa advised the Court that even with a forensic investigation hemight not be able to conclude whether material damage had likelyoccurred. Dr van Ballegooy agreed with Mr Keepa that inspecting thepiles would be of little or no use because any cracking to the piles wouldbe closed and probably not visible; and(c) there is insufficient evidence of observable collateral damage indicatingdamage to the pile heads.[273] In summary, there is no scope for the Court to find that the piles sufferedearthquake damage as there is no evidence to that effect before the Court. This trialwas the occasion for the plaintiff to produce any evidence it had of pile damage. Notonly has it not done so, its experts have also belatedly resiled from prior conclusionsthat there is pile damage and from the modelling that produced that conclusion.Furthermore, I consider that Dr van Ballagooy's evidence to the effect there has beenno pile damage is more likely than not to be the most reliable.Basement slabPlaintiff's case[274] The plaintiff's experts originally said that the basement slab would have to bedemolished and replaced because of pile damage and differential settlement caused by35 Jarden v Lumley General Insurance (NZ) Ltd, above n 34, at [54].the CES. In addition to those experts' concession that they are not in a position toprove the pile damage initially alleged, they now also concede that the differentialsettlement caused by the CES in the basement slab is negligible.[275] Notwithstanding these concessions, the plaintiff's experts say the basementslab should nonetheless be demolished and replaced because:(a) of the extent of the cracking to the sections of concrete that constitutethe basement slab;(b) the steel reinforcing in the ground beams has been subject to anaccelerated rate of corrosion;(c) of displacement of the cold joints in the slab;(d) of damage to the diamond dowels and shear keys; and(e) the proposed epoxy injection method will not remedy the damage (butrather exacerbate it because it will reduce the stiffness of the slab).Vero's case[276] The BMC scope of works sees the top 100 mm of the basement slab over anarea of 126 m2 being removed and reinstated with new reinforcing and concrete andthe remaining area repaired by epoxy injection.[277] Vero's experts say that, notwithstanding the existence of extensive andwidespread cracking to the basement slab, it can largely be remedied to the when newstandard by epoxy injection repair because most of the cracks are minor. They saythat epoxy injection repair will restore the stiffness and strength of the basement slabto a when new condition.[278] Vero's experts do not consider there is proof of any corrosion of the steelreinforcing in the basement slab ground beams.[279] They also do not consider there is any damage to the slab joints andconsequential damage to the diamond dowels or shear keys.[280] Before I focus on the basement slab in particular, I shall make some generalobservations about cracking which are applicable to all cracked elements. I shall notrepeat them when I come to look at each successive element of the buildings. I shallalso make some observations about corrosion of steel reinforcing.Cracking – general remarks[281] Cracking can be a problem because it can lead to a reduction in the strength,stiffness, fire resistance and durability of structural elements.[282] The standard used for design of concrete buildings in New Zealand specifiesthat:(a) cracks up to 0.2 mm are acceptable in all environments; and(b) cracks of 0.3 to 0.4 mm are acceptable in normal interior/exteriorenvironments.[283] For smaller cracks less than 0.3 mm in width:(a) some concrete (including the concrete used here) contains"self-healing" compounds which are designed to prevent moistureingress and protect the reinforcing; and(b) the alkaline properties of concrete allow it to resist corrosion.[284] However, the standard referred to in [282] does not apply to earthquake-damaged buildings, particularly where the cracking that occurred during the seismicactivity would have been larger than the residual crack widths subsequently observed.Therefore, the cracks in an earthquake-damaged building do not necessarily informthe observer as to the deformation or distortion that may in fact have occurred duringthe relevant seismic activity to cause the cracking.[285] The properties referred to in [283] are not determinative of any issue relatingto the cracks in this basement slab.[286] Cracks that are too small (typically less than 0.3 mm) cannot be injected withepoxy.[287] Cracked concrete elements which are thicker than 200 mm require access fromboth sides if they are to be repaired by epoxy injection.[288] As aforementioned at [182], the experts are agreed that epoxy repair of crackedelements will not fully restore their pre-damage stiffness. Dr Brooke (althoughdiffering on the ultimate percentage of reduction to be applied in this case as discussedat [187]) did agree that a 20 per cent reduction in stiffness was a reasonable startingpoint.Corrosion of steel reinforcing – general remarks[289] Reinforcing steel has a rate of corrosion loss over its entire life. I am satisfiedon the evidence before me that when steel has been exposed to water and oxygen (thatis, to physical change) it will be subject to an accelerated rate of corrosion. For this, Irely on the evidence of Messrs Govind and Hobbs.[290] An "accelerated rate of corrosion" means that the reinforcing has a shortenedoverall lifespan in comparison with reinforcing that has not been so exposed.Accelerated corrosion is a loss that cannot be restored. It is common ground thatepoxy injection would not remediate this damage if it has occurred.[291] Where the steel reinforcing has remained saturated with clean water (that is,there has been no physical change) corrosion does not occur.Cracking to the concrete sections of the basement floor slabVolume and extent of the cracking[292] All the experts acknowledged there is widespread cracking in the basementslab (as can be seen from Appendix B). The Beca crack mapping of the basement slabwas not challenged. In fact, BMC indicated that some of the cracks observed by BMCwere larger than those recorded by Beca.[293] Mr Govind, Dr Brooke and Mr Hobbs agreed the cracks are more likely thannot caused by the CES but are also constituted by some pre-existing cracking causedby shrinkage of the concrete. Shrinkage is expected in concrete and accepted as beingquite normal behaviour. Mr Hobbs acknowledged that to the extent there waspre-existing cracking in various elements of the buildings it would have beenexacerbated by the CES. However, nothing of any particular significance in this casehangs on the existence of pre-earthquake shrinkage.[294] The extent of the cracking in the basement slab is summarised in the belowtable using data taken from measurements by Calibre and Beca:Width of crack Total length (m) Percentage (%)Less than 0.3 mm 493.7 560.4 mm 118.1 130.4 to less than 0.8 mm 183.7 21Greater than 0.8 mm 86.3 10[295] Of the cracks greater in width than 0.8 mm, only five were wider than 1 mmand, of those cracks, their combined length is less than 3 per cent of the total amountof cracking.[296] As previously discussed, the basement slab is a very large area, measuringapproximately 2,000 to 2,100 m2. Fifty-six per cent of the cracks have a residual crackwidth that would be considered minor in a building that had not been subjected to anearthquake. That same percentage cannot usefully be injected by epoxy. It is theremaining 44 per cent of cracks that are of some concern when it comes to the issueof the basement slab's residual stiffness and strength.[297] Dr Brooke's characterisation of the cracking damage as widespread but minortherefore appears generally accurate. However, this is not the only measure againstwhich the proposed method of repair of that damage must be evaluated. The Courtneeds to consider the following:(a) whether epoxy will penetrate and adhere to the cracks to the necessaryextent;(b) whether the methods employed to ensure the necessary penetration andadhesion of the cracks themselves put the basement slab at risk offurther damage given the widespread nature of the cracking; and(c) whether the jet grouting procedure employed to fill the voids beneaththe slab (discussed at [239]–[244] above and [310]–[314] below) will,in combination with the above, put the basement slab at risk of furtherdamage.Contamination[298] The plaintiff's experts noted the time that has elapsed since the cracks occurredand said it cannot be ignored. As the damage occurred in excess of 11 years ago, theyargued there is a presence of oil, grease, dirt, and organic growth visible in some ofthe cracks and that debris, dust and algae will potentially have formed in the cracks inthe basement slab.[299] This basement slab provides for a car park. It is common sense that vehiclesgoing to and from the car park are likely to track contaminants into some of the cracksin the slab. The site visit demonstrated that the car park environment was damp anddirty.[300] The plaintiff's case is that any contamination found in the cracks might affectthe ability of the epoxy to penetrate the cracks and adhere and bond properly.Therefore, the stiffness and strength of this building element may be adversely affectedif this method were used to repair the basement slab rather than demolition andreinstatement. In other words, epoxy repair would not meet the policy standard.[301] Dr Brooke considered it plausible that the cracks in the basement slab could becleaned by water blasting or using other industrial cleaning techniques in a morethorough manner than would be used for "typical" crack preparation. Dr Brooke saidsuch cleaning techniques were referred to in the International Concrete Repair Institute(ICRI) guidelines.36 Ms Stanway said she had read this guideline and was unable tofind in it any guidance on industrial cleaning techniques. However, she accepted thisguideline does highlight that it may be beyond the control of the contractor to achievecomplete removal of bond-inhibiting contaminants. The following is taken from the"Introduction" of this document:The injection contractor is able to control only the injection process; completeremoval of all bond-inhibiting contaminants from within a crack may not bepossible, so achieving satisfactory bond may be beyond the contractor'scontrol.If there is any doubt that epoxy injection will achieve the intended results, atrial program should be conducted prior to implementing the full project todetermine whether the repair objectives can be attained using the materialsand equipment proposed for the work.[302] Dr Brooke acknowledged that contamination "adds a challenge to" epoxyrepair. He accepted that contamination is a realistic concern in the basement floor slabwhere oil, dirt and grease could be tracked in by cars and other vehicles and suggesteda trial programme be undertaken. He further acknowledged that, if testing did not giveconfidence as to adhesion, it would be necessary to "revisit the approach taken torepair".[303] Mr Hobbs did acknowledge the risk of some contamination from vehicularmovements but also continued to assert, in my view rather unrealistically, that theexposure of the cracks to regular traffic over 11 years would not necessarily result incontamination.[304] Mr Bull said that adhesion was not an issue in this case because in reinforcedconcrete structures (such as the basement slab) the tension capacity of the concreteelement is handled by the reinforcing and not the concrete (unlike unreinforcedconcrete structures where adhesion is more important). He said the epoxy is being36 Guide for Verifying Field Performance of Epoxy Injection of Concrete Cracks: Guideline No210.1R–2016 (International Concrete Repair Institute, St Paul (Minnesota), 2016).used as a filler to reinstate the compression capacity of the concrete element and iscapable of doing so even if a small amount of debris remained in the crack.[305] Vero called evidence from Mr Wilson, a contractor whose company has carriedout epoxy repairs on cracks and under-slab void consolidation in many earthquake-damaged buildings. Mr Wilson describes himself as a "Strategic Business Innovator"of the Connect Group Ltd (an internationally trained concrete repair specialist team).He said the Connect Group has undertaken large-scale seismic strengthening projects,which include the Christchurch Town Hall, the Christchurch Art Gallery and manyother multi-level structures. In other words, injection of grout to fill voids below slabsis a well-known and established repair method.[306] Mr Wilson had visited the site and said he saw only minimal evidence ofcontamination of the cracking in the basement slab. He gave evidence that if, on closerinspection, contamination was in fact found then the cracks could be cleaned.[307] Ultimately Ms Stanway accepted under cross-examination that themethodology outlined by Mr Wilson was "good practice" and that it was possible itwould ensure the cracks were sufficiently clean to ensure proper application of epoxy.[308] No clear method of testing cores in the basement slab (which is carried out todetermine whether there is an adhesion failure) was advanced in the first instance.Under cross-examination Mr Hobbs proposed a "strike of the hammer" test and thena compression splitting test. Dr Brooke referred to the latter as a "split cylinder" testwhich would be undertaken in a laboratory, although he has no experience of havingspecified or undertaken such testing.[309] In summary, it defies belief that there will not be some contamination of thecracks in the basement slab. Tests will need to be undertaken to ensure cleaning andremoval of any contaminants is possible and effective. If not, then some alternativemethod of remediating the damage will need to be identified.Will the proposed method of remediation of the basement slab meet the "when new"standard?[310] It is vital to recall in this context just how extensive the cracking of thebasement slab is (as demonstrated by the Beca crack mapping in Appendix B). It issignificant in this context that the basement slab is 420 to 480 mm in depth. It is alsoimportant to recall the evidence of Mr Govind that cracks of more than 200 mm indepth require access from both sides. In order to fill the void beneath the basementslab (as discussed above at [239]–[244]) significant drilling of the already verycracked slab would need to be undertaken.[311] Mr Wilson described what would be involved in the steps the Connect Groupwould take to fill the void as part of Vero's proposed repair methodology. First it isnecessary to identify the area of concrete that requires consolidation and to scan thebasement slab for steel reinforcing. Then drilling would be undertaken through thebasement floor slab with a 20 mm bit at 600 to 800 mm centres. The drilling processwould also continue around the circumference of the deflected area. When the holeshave been drilled, water would be flushed into each hole for the grout to flow acrossthe tailings (the refuse resulting from drilling). The holes would then be injected withlow viscosity grout. The first grout mixture would be pumped into each hole to act asa grout mat over the tailings until all holes have been grout injected.[312] The Connect Group would then return to the first hole and pump liquid groutuntil the grout flows from the adjacent holes, moving through injecting grout into thegrid formation injection holes. The procedure would be repeated until the grout fillsthe void and has settled flush to the top of the floor slab. Once the holes are filled withgrout, the Connect Group would re-drill injection holes to the depth of the floor slab.Bentonite granules would be applied to two-thirds of each hole and the process wouldbe completed by including an epoxy cap to act as a moisture barrier.[313] As Mr Govind said, the number of holes required for the void filling and tocore to check epoxy penetration entails creating "a lot of damage" to the basementslab. The number of holes being drilled, in conjunction with epoxy cores, will be inthe thousands. At 1500 mm centres, as proposed by BMC, this entails 925 cores of20 mm diameter through the slab. Mr Wilson, drawing on past experience, in fact saidthat 600 to 800 mm centres were "preferable" to 1,500 mm centres. This would nearlydouble the number of cores.[314] Vero's experts failed to satisfactorily address the potential impact on thestructural integrity of the basement slab of the activity involved in filling the void andremediating the cracks in the slab itself. No doubt the risk of further damage to theslab as a result of all this activity is also what lies behind Dr Brooke's and Mr Wilson'sconcessions that trials may lead to the conclusion that the slab is not amenable toremediation by epoxy injection as currently proposed by Vero's experts. Somealternative method would then need to be identified.Aesthetics of the proposed repair to the basement slab[315] For Vero, Mr Hobbs stated that "allowances have been made to apply athree-coat acrylic paint system to the basement floor" to conceal the epoxy repairs (theNawkaw system). Ms Stanway deposed such a finish in this trafficked areacomprising the basement floor slab would require regular maintenance. The plaintiffsubmitted a paint surface which is subjected to water, vehicle movement, vehicle oilsand grease, and foot traffic, is inevitably going to degrade and need maintenance. Itsubmitted marks will be liable to show up more on a painted surface than on unfinishedconcrete. Ms Stanway's evidence concerning the need for regular maintenance wasunchallenged.[316] The plaintiff also submitted that this proposed method of repair would notrestore the aesthetics of the slab to its "when new" state. Ms Stanway opined thatepoxy repairs of the cracks (manifesting in a different aesthetic texture along the lineof a repaired crack relative to the remainder of the element) would not provide a "whennew" reinstatement.[317] The basement slab has a primarily structural function. Currently the aestheticsof the slab consist of bare concrete. I doubt from an aesthetic point of view theproposed solution would degrade the aesthetic quality of the basement slab, but I doaccept additional cost will be necessary to keep the Nawkaw finish in good condition.However, I could not, in those circumstances, find for this reason alone the basementslab would need to be replaced to meet the "when new" standard.Accelerated corrosion in the steel reinforcing in the basement slab ground beams[318] Mr Govind said that the steel reinforcing in the basement slab ground beamshas been exposed to over 10 years of wet–dry cycles (where the reinforcing may beperiodically, rather than permanently, submerged in water) which will haveaccelerated its rate of corrosion. Ms Stanway's position was that damage by corrosionto the reinforcing in the ground beams "cannot be ruled out".[319] From observations of the cracks over time, Mr Govind said that the cracks inthe concrete sections of the basement slab do not exhibit moisture ingress on dayswithout rainfall. Whilst the in-situ water table is higher than the basement slab, hesaid this level does not cause enough pressure to eject water through the cracks.However, as the water-table level increases during a rainfall event the water pressureincreases and is able to drive water through the cracks in the basement slab.[320] Mr Hobbs suggested that cracks in the basement floor slab would be "starvedof free oxygen". However, Dr Brooke accepted there are cracks in the basement floorthat will not always be sitting in water. The plaintiff relied on this last concession asproof of Mr Govind's theory. I do not consider that concession goes so far as toconstitute an agreement with Mr Govind's evidence that the ground beams are at timessubject to exposure to oxygen.[321] In any event, no work has been done by the plaintiff to forensically investigateand prove this damage. Under cross-examination, Mr Bull detailed a method fornon-intrusive testing for corrosion which could be utilised. It is surprising thereforethat the plaintiff and its experts have not attempted to produce their best evidence tothe Court in this regard.[322] I rely on the assessments by Structex, Quoin and BMC, all of which concludethat there is "low concern" regarding corrosion of the steel reinforcing in the basementfloor slab because it seems that the reinforcing will have remained saturated with cleanwater.[323] In these circumstances, the plaintiff has not met the onus of proof in relationto this aspect of the case.Water ingress through the gap between the cold joints of the basement floor slab[324] There is evidence to suggest that there is water ingress through the gap betweenthe cold joints of the basement floor slab where the hydrophilic sealant has failed as aresult of the movement of concrete sections of the basement slab. For the plaintiff,Ms Stanway says that, for this reason, the basement slab needs to be replaced.[325] Ms Stanway's initial position was that the hydrophilic strips between the slabjoints have been earthquake damaged as a result of the basement slab joints beingrotated and worked during the lateral response of the building to the CES. Thisposition was based on her view that the piles had undergone deformations and beendamaged.[326] Ms Stanway and Mr Keepa opine that the water ingress observed in thebasement is indicative of failure of the hydrophilic sealant in various locations. Theyhypothesise that the sealant that has been used to seal the basement slab joints is "atimminent risk of failure" given the extent to which the joints have been worked.Ms Stanway qualified this further in cross-examination to the imminent risk of failurein a future earthquake event.[327] Mr Govind is also of the view that the sealant would have been damaged fromthe differential movement of the basement slab in response to the pile deformations.[328] It was agreed at the November 2021 joint expert conferral that Mr Bull wouldassess the basement cold joints in light of information provided by WSP.[329] Mr Bull investigated all 377 m of joints between slabs and found:(a) very minor offsets of 1 mm or less in most cases, well within thecapacity of the sealant strips;(b) no signs of damage such as spalling; and(c) the vast majority of the joints appeared dry.[330] These measurements were taken by Messrs Bull and Hobbs and appear tocontradict the August 2019 JER wherein it was agreed that steps in the concrete slabcold joints are up to 15 mm. Mr Bull accepted that the two reports do not reconcile.[331] During its site inspection, BMC observed evidence of water ingress throughthe basement floor slab as a result of the gap between the cold joints. Theseobservations included:(a) free-flowing groundwater through cold joints in two locations;(b) efflorescence and surface moisture immediately adjacent to cracks in13 locations and the cold joints in seven locations throughout thebasement; and(c) surface moisture on the surface of the slab adjacent to cracks in fivelocations.[332] Messrs Hobbs and Bull were both taken to a photograph in the Beca report ofa typical cold joint, which contained a biro pen for comparison. Mr Bull accepted theoffset depicted in the photograph was "definitely" greater than 6 mm. Mr Hobbsprevaricated, claiming he "cannot" say that it showed a 6 mm offset. I find the offsetin that one joint is greater than 6 mm.[333] In summary, it is agreed between the experts that there are localised areaswhere the hydrophilic strips are clearly damaged to the point that there is regular wateringress. The experts disagreed on the extent of the damage to the strips. There is noevidence that points to failure of all 337 m of joints. In fact, it would appear most ofthe sealant is intact.[334] Some remediation will be necessary of any cold joint where the offset is greaterthan the capacity of the sealant strips or where the concrete dislevelment would requirethe concrete to be cut out to allow for proper installation of the sealant. The onlyevidence I have as to how that might be achieved is the evidence of Ms Stanway thatretrofitting hydrophilic sealant between an existing slab joint is not usual practice andwould require some cutting and relaying of the concrete. Mr Bull conceded that itwould require cutting out concrete. There is inadequate evidence as to whether thisremediation method is suitable in the circumstances of this slab. It appears thatuncertainty will need to be taken into account in the trials to assess the effectivenessof epoxy injection on this slab.[335] In summary there is agreement that localised water ingress is occurring throughthe gap in between some of the cold joints of the concrete sections of the basementfloor slab. If that were the only problem, then it would appear the consensus wouldbe to remedy this by simple replacement of the sealant. However, in this case thereare other factors which contraindicate this approach, namely the necessity to cut outthe concrete in the slab to allow this to occur.[336] The plaintiff has failed to prove the limited formation of gaps between the coldjoints and the localised breach of the sealant is sufficient to warrant full replacementof the basement slab. However, the damage does add to concern that the trials to assessthe implications of using the jet grouting procedure to fill the void and of using epoxyrepair to remediate the cracks in the basement slab, and the impact of this overallremediation methodology on the basement slab, may ultimately result in the need tofind another alternative method of repair.Diamond dowels[337] Mr Govind said that the movement of the basement slab joints would havecaused the diamond dowels to "have moved and sheared or locally been damaged andthere's a risk of corrosion at that point as well". He noted there would be damage tothe diamond dowels "[e]ven under five or six millimetres".[338] Ms Stanway's evidence was likewise that the diamond dowels have beendamaged in places due to the rotation of the basement beams and slab and that shewould not expect spalling to be evident as a precondition to dowel damage. She alsoexpressed concern regarding potential corrosion of the dowels due to water ingressthrough the joints.[339] Mr Bull carried out a detailed investigation of the basement slab to determinewhether there was damage to the diamond dowels. He concluded they were likelyundamaged for the following reasons:(a) most of the vertical offsets between the slabs measured were less than1 mm (the maximum was 6 mm found at one site only), which indicatesthat the steel plates comprising the dowels would have very slight bendsif any; and(b) the concrete around the diamond dowels would spall before the dowelsthemselves suffer any damage and no spalling was observed.[340] However, Mr Bull conceded that even at 2 to 3 mm offsets the dowels mayhave "slight bends", although he asserted that "this will not reduce the shear (vertical)capacity of the dowels".[341] In general, keeping with their approach to this case, the plaintiff's experts havenot carried out invasive inspections of the diamond dowels. The evidence satisfies methat it would have been relatively easy for the plaintiff to undertake an inspection ofthe dowels for damage of the kind alleged.[342] In summary I consider the plaintiff has not proven that the diamond dowels'shear capacity has been unduly compromised, nor do I find that they have been subjectto corrosion.Shear keys[343] Shear keys are part of the structural element mostly used to make the structurestable against the lateral loading of the building.[344] The parties are not in agreement as to whether the shear keys have beendamaged. Ms Stanway said that the shear keys would be damaged with movement ofthe slab joints of 1 to 2 mm. Mr Bull indicated in the April 2022 JER that, in areas ofclear movement, investigation ought to be carried out for shear key damage. Notably,he advanced this recommendation after having taken his measurements of themovement and offsets. It would seem an opportunity for such investigation arises inthe trials concerning whether the basement slab's structural integrity will bemaintained through the proposed jet grouting and epoxy injection procedures.Summary of damage to the BFSS above the substrate[345] In summary, I find that in relation to the building elements of the BFSS abovethe substrate there is:(a) voiding between the basement slab and the subgrade;(b) extensive (albeit largely minor) cracking in the basement floor slab(together with likely contamination of those cracks with oil, grease, dirtand other debris tracked in by vehicular traffic);(c) dislevelment in one basement slab cold joint of at least 6 mm;(d) breach of the hydrophilic sealant between some of the cold joints andlocalised water ingress into the basement; and(e) potential damage to the shear keys to be investigated as part of the trialsto be conducted in relation to the basement slab.Should the basement floor slab be demolished and replaced in order to meet thepolicy standard?[346] The cracking in the basement slab does not, in and of itself, warrant itscomplete demolition. Nor does the cracking between the cold joints mandate completedemolition of the slab. However, it is premature on the evidence to say that demolitionmay not in fact have to occur. That conclusion will depend on the trials to beundertaken preliminary to the proposed application of epoxy injection. If those trialsreveal that the proposed remediation is not effective, for instance because the sheerextent of the cutting and drilling of the slab necessarily affects its structural integrity,another method of remediation may have to occur which may include the completereconstruction of the slab. What would be required by ground improvement in thosecircumstances has not been fully ventilated in the evidence before me.[347] The plaintiff's pleading seeks a declaration in favour of a remediation schemefor the BFSS now rejected by two of its own experts. An alternative was onlyarticulated during Ms Stanway's cross-examination. No updated scope of repair hasbeen presented. Vero's witnesses have not been able to give any detailed considerationto this alternative as it has not been properly explained or detailed. Given the lack ofevidence and pleading concerning this alternative it cannot be endorsed as a suitableremediation method.Basement superstructureBasement precast concrete walls[348] The parties agree there is earthquake-induced cracking to the precast concretewalls. However, the parties disagree on the nature, extent and significance of thecracking. These walls contain steel reinforcing.[349] The plaintiff's experts said the appropriate remediation method was to replaceidentified panels, pour new 200 mm thick concrete walls, construct a new basementconcrete raft, and to excavate and backfill between the sheet piling and new walls.Vero's experts recommended excavating to expose the exterior face of the wall panelsand to epoxy inject the cracks.[350] The plaintiff's experts are of the opinion that the cracking in these wallsindicates non-linear behaviour of these walls attributable to the movement of thebuilding during the CES and the deformation of the piles. They observed moistureingress at the top of numerous panels. They also say there is evidence of structuraldegradation with efflorescence and rust stains indicating the steel reinforcing in theprecast panels is corroding.[351] In Mr Hobbs' opinion, as the walls are reinforced with ductile reinforcing andthere was no spalling in the concrete it was unlikely the capacity of the reinforcing inthese walls had been exceeded.[352] Although Mr Hobbs said there is some evidence of moisture ingress andefflorescence from cracking on the east (one location) and south (two locations)elevation, he noted that in all cases the observed moisture ingress was near the base ofthe panels. He also said there was no evidence of rust staining in any of theselocations.[353] Vero's experts considered the efflorescence on internal precast wall panelsindicates water ingress from the courtyard above, as a result of cracking of thearchitectural topping slab (as part of the ground-floor podium slab).[354] Vero's experts also observed cracking between the basement concrete panelsand the underside of the ground-floor slab. They observed efflorescence and ruststaining in locations indicating corrosion of the wall or slab reinforcing. Specifically,they found rust staining observed to the tops of panels on the northern portion of thebasement is a result of corrosion of the architectural topping slab reinforcing and notthe result of corrosion of the structural topping slab reinforcing or wall panelreinforcing. Finally, they observed rust staining to panels on the southern portion ofthe basement is a result of water ingress through openings in the panel for drainagepipes. This was not earthquake induced.[355] Vero carried out intrusive investigation in respect of the rust staining found onthe basement walls. This showed that:(a) there is no corrosion of the reinforcement in the walls; and(b) the staining originated from the steel mesh in the architectural toppingslab which was corroded — this corrosion is of no consequencestructurally.[356] Ms Stanway subsequently agreed there was no evidence of rust staining thatwas not explicable by Vero's experts' findings.[357] In summary, there has been no yielding of the precast concrete walls' steelreinforcing and nor is there evidence of corrosion of any structural or materialconsequence. On this basis, I prefer Vero's proposed method of remediation in respectof the basement precast concrete walls.Cracking in the moment-resisting frames, namely columns and beams that support thebasement superstructure[358] Cracking is visible on the precast concrete beams, columns and beam-columnjoints along Gridline C and F of the apartment building's design gridline layout. Theparties agree there is also cracking to the plaster render on the frames. The partiesdisagree on the severity and significance of the damage. They also disagree on theappropriate remediation method, save for the need to locally remove sections of theplaster façade on the northern exterior elevation.[359] As stated previously at [72], these moment-resisting frames on Gridlines Cand F are the building's primary lateral load resisting system in the east-west direction.Plaintiff's case[360] The cracking to these frames is diagonal which, according to Mr Govind,indicates an "unreliable and brittle shear failure mechanism of the concretemoment-resisting frames".[361] Mr Govind expressed concern with what he observed in the beam-columnjoints. He noted that with high loads imparted into the frame beams he would haveexpected more damage in the frame beams rather than seeing damage in thebeam-column joints and in the columns. He believed, based on his own judgement,that there was an incontrovertible inference to be drawn from the presence of thesurface cracking, namely that such cracking would be mirrored underneath in thestructural element of the beam-column joint. He described the diagonal cracking as a"classic beam-column joint failure mechanism".[362] Ms Stanway observed that the axial load of the building is liable to have closedthe beam-column cracks to less than 0.2 mm and they will not therefore be effectivelyrepaired with epoxy under the Vero scheme. Ms Stanway opined that diagonalcracking to the beam-column joints also indicates shear cracking, meaning that partialfilling or no filling at all for cracks less than 0.2 mm "will result in a residual loss ofshear capacity in the beam-column joints".[363] The plaintiff also claims the cracking in the beams and beam-column jointsmay have caused "corrosion of reinforcing and structural degradation".Vero's case[364] Vero's experts observed damage to the exterior frame on Gridline C duringtheir site visit in November 2017.[365] After their inspection, they concluded that, on the majority of the columnsinspected, the cracking observed through the outer face of the beam-column joint didnot occur on the inner face or was reduced to hairline cracking. In their opinion, thecracking observed on the Gridline C frames is only that of the plaster render.[366] Vero's experts also concluded the most widespread cracking occurred aroundthe beam-column joints adjacent to the stairwells. It is their view this is likely due tothe shortening of the beams' effective length due to the restraint provided by themasonry stairwell walls.[367] On 14 December 2017, Vero's experts undertook invasive investigations whichexposed the beam-column joints of the Gridline F frames in Units 9, 18 and 27. Thefollowing observations were made:(a) cracking of less than 0.3 mm was observed in the beams and columnsadjacent to the beam-column joints in all units;(b) no cracking was observed in the beam-column joints in Units 9 and 18;and(c) the beam-column joint in Unit 27 was observed as having a 0.1 mmdiagonal crack propagating from the lower corner of the joint towardsthe centre of the beam-column joint.[368] Vero's experts also undertook a non-linear time-history analysis usingground-shaking records recorded at the adjacent REHS monitoring station to quantifythe extent of inelastic deformations of the building.37 This modelling showed thebuilding did not exceed the effective yield displacement. In this context, that meansthe beam-column joints were not loaded sufficiently to cause crushing damage to theconcrete core or yielding of the reinforcing.[369] Mr Hobbs reviewed the capacities of the beam-column joints to both thecurrent Code design and to the MBIE guidelines for the assessment of existingbuildings.38 In all cases he found the capacities of the beam-column joints were"sufficient to allow plastic rotations of the beams either side of the column".[370] Mr Bull's view was that the cracking observed in the beams and beam-columnjoints was of a very minor nature and of negligible structural importance. Heconsidered the extent of the cracking seen on the moment-resisting frames wasconsistent with the building having undergone relatively small displacements and wasnot indicative of failure. He opined that the observed damage does not point tosignificant yielding of the main bars in the beams and columns, as, in that event, muchlarger and more numerous cracking would be seen on such a beam.[371] On the claim that there may be corrosion of reinforcing and therefore structuraldegradation of the beams and beam-column joints, Vero reiterated its submission thatthe plaintiff has not carried out any testing for corrosion of these elements despite amethod of non-intrusive testing being available.Discussion[372] I find that none of the cracking visible on the columns and beams is greaterthan 1 mm in width. The majority of the cracks observed are less than 0.5 mm inwidth.[373] In the absence of yielding of the reinforcing in the beams or columns ormeaningful deterioration of the beam-column joints, I do not consider the cracking37 REHS is the field code for the Christchurch Resthaven Rest Home sensor, which is the neareststrong motion recording station to the buildings (located 30 m away).38 The Seismic Assessment of Existing Buildings: Technical Guidelines for Engineering Assessments(Part A) (Building Performance, Wellington, 2017).observed to have materially affected the ongoing performance of the building so faras the seismic strength of the structure is concerned.[374] However, I do acknowledge that the cracking of the concrete members willreduce the stiffness of the building by a minor amount as elaborated on by Dr Brookein his evidence, referred to at [182]–[187].[375] I prefer the evidence of Dr Brooke and Mr Bull over the evidence ofMr Govind. Dr Brooke and Mr Bull are leading industry experts in the field of damageto concrete elements. Mr Bull is perhaps the best qualified of all the structuralengineers in this case. His vast experience and assuredness were compelling featuresof his both his written and viva voce evidence. I found him to be a highly persuasivewitness.[376] Mr Govind's evidence is reliant purely on his own inferences and assumptionsborne of his experience. Unlike Mr Govind, the Vero witnesses had undertakenforensic investigation of a sample of the joints, beams and columns. They had alsoundertaken the non-linear time-history analysis, which provided a very useful piece ofdata in the circumstances of this case.[377] Mr Govind refused Vero's request to inspect a selection of beam-column jointson Gridline C under the plaster coating to see if the damage to the plaster was reflectedin the beam-column joints underneath because he said such inspection wasunnecessary.[378] In the absence of actual evidence of corrosion or damage to the reinforcingthere is no sound evidential basis on which the Court could conclude that cracking tothe beams and beam-column joints has led to corrosion and structural degradation ofthe reinforcing within. Thus, the plaintiff has no sound basis on which to assert thatepoxy injection cannot remediate the damage to those building elements (save for theslight reduction in stiffness).[379] I find that the epoxy-repaired concrete elements will meet the policy standardof restoring the damage to a condition substantially the same as its condition "whennew" given that the minor reduction in stiffness is unlikely to have a significant effecton the building's performance in a future event.Unispan floor planks and structural topping[380] The Unispan suspended slab within the basement has cracking.[381] Ms Stanway and Dr Brooke agreed there were cracks in the Unispan floor slabplanks (observed in the basement looking at the underside of the ground-floor slab).Dr Brooke explained the import of the perpendicular cracking as follows:Perpendicular cracks of Unispan planks at the ground floor require separateconsideration. In these plans the perpendicular cracks are crossed byprestressing tendons. The prestress applied by these tendons should preventperpendicular cracks from opening to more than a hairline width. The factthat cracks exceeding 0.5 mm width exist in some of these planks indicatesthat the prestressing has been compromised, which may affect the strength ofthe planks and necessitate additional repair to address the cracking asdiscussed by Mr Hobbs.[382] Ms Stanway and Dr Brooke were agreed that these cracks could not be restoredto a when new condition with epoxy injection.[383] Mr Govind said that the necessary solution is to replace the cracked Unispanunits to restore the Unispan to when new condition. Vero says there is another optionto remediate the damage, which is to install strongbacks.[384] Strongbacks are steel support brackets fitted to the supporting beams toreinstate support to the floor beyond the crack. Mr Hobbs said these brackets couldbe conceptually similar to the strongback retrofit recently tested at the University ofCanterbury and shown in the figure below.[385] As observed during the on-site inspection, temporary strongbacks have beeninstalled.[386] Although Mr Govind accepted the installation of strongbacks restores strength,he said such installation "entails replacing the concrete structural system with a steelsystem and does not therefore entail a like for like reinstatement".[387] The strongback solution would appear to alter load paths, and the literatureindicates that it is aimed at addressing "the majority" of floor failure modes rather thanall failure modes. It is not therefore an equivalent structural solution.[388] Mr Hobbs said these strongbacks can be installed but did not addressMr Govind's like-for-like argument in terms of their structural differences nor the factthat the literature indicates the installation of strongbacks is aimed at addressing "themajority" of floor failure modes, not all failure modes.[389] Nor did Vero address the appearance of the strongbacks, as none of the Verowitnesses advanced the issue of aesthetic equivalence or acceptability.[390] Clearly the strongbacks are visually undesirable — they have the appearanceof being ad hoc and are liable to cause occupiers and potential tenants/owners to haveconcerns about the structure and efficacy of repairs.[391] I acknowledge the authority in Parkin that the "when new" policy standarddoes not require Vero to take into consideration the impact of repairs on the resalevalue of the properties in the building. However, I note that, unlike that case, thestrongbacks do have a visible aesthetic quality and there is concern they may notrestore the functionality or structural integrity of the ground-floor slab structure.[392] I find that the only proper solution is therefore the replacement of the crackedUnispan to redress the cracking and restore the Unispan structural slab to its conditionwhen new.Ground-floor slab[393] The parties are agreed that cracking in the architectural topping slab which isallowing moisture ingress is earthquake damage. The reinforcing in the architecturaltopping slab was also found to be corroded. Additionally, cracks were observed onthe structural topping slab underneath, but the parties disagree as to the nature andextent of these cracks.[394] BMC undertook invasive investigations of the ground-floor slab on 10 and11 June 2019. These investigations focused on the underneath of the architecturaltopping slab in order to determine whether cracking to the topping slab was reflectedin the structural slab underneath.[395] BMC observed that the cracking in the architectural topping slab was notcorrelated to the cracking of the structural slab underneath and the cracking observedto the latter was limited to the areas above the basement beams and walls.[396] Mr Hobbs said no significant corrosion was observed to the structuralreinforcing in either the structural topping slab or the concrete walls.[397] His evidence was the reinforcing in the architectural topping slab was found tobe sitting on the base of the slab and directly on the waterproofing membrane in somelocations. This reinforcing was heavily corroded in some areas, particularly aroundthe cast-in drainage channels.[398] Where the architectural topping slab was excavated above the basementsupport walls, Mr Hobbs said the structural topping slab was found to be cracked alongthe line of the supporting wall. Such cracking will, according to BMC, provide aningress point for water that tracks under the waterproofing membrane to enter thebasement.[399] This cracking was observed to be 1 to 2 mm wide. In some areas the membranecoating appeared to bridge this crack and in other locations bits of the membrane werefound within the crack. From this Mr Hobbs concluded that the cracking in thestructural topping slab in these locations likely predates the CES but may have beenexacerbated by it.[400] As part of BMC's investigations, the architectural topping slab was alsoexcavated in two locations away from the basement supporting beams and walls andcoinciding with observed cracks in the architectural topping slab.[401] Mr Hobbs gave evidence that these cracks in the architectural topping slabwere found to terminate at the membrane and did not propagate into the structuraltopping slab.[402] BMC found the waterproofing membrane was in a variable condition withsome areas appearing to be in a deteriorated condition, particularly those at the baseof the cast-in drains. BMC says it was difficult to determine the extent of the damageto the waterproofing membrane that was caused by the breakout from that which waspre-existing.[403] Based on BMC's invasive investigations, Mr Hobbs made the followingconclusions regarding the damage to the podium slab:(a) Cracking of the architectural topping slab does not correlate to crackingof the structural topping slab. In all instances observed, thewaterproofing membrane formed a bond break between thearchitectural and structural topping slabs.(b) Cracking observed in the structural topping slab was limited to the areasabove basement beams and walls. This cracking was likely to havebeen induced by gravity loading and shrinkage rather than the CES butmay have been exacerbated by the CES.(c) Water ingress into the basement through the podium slab appears to beoccurring predominately through the intersections of the precastflooring elements and basement walls and beams.(d) Water ingress through the architectural topping slab is likely to have anumber of sources. However, the main sources of water ingressthrough the architectural topping slab are leakage from the cast-indrainage channels and cracking in the negative moment regions of theslab (above basement walls and beams).(e) Rust staining on the basement walls and beams has not affected thereinforcing in the concrete walls or structural topping slab. The ruststaining observed is most likely generated by rusting of the mesh in thearchitectural topping slab. This mesh was located near or on the baseof the architectural slab and is likely to have been in contact withstagnant water, especially around the drainage channels.[404] The August 2019 JER notes partial agreement between the plaintiff's andVero's engineers on damage to the podium slab, with the differences primarily relatingto the relative contributions of the cracking in the architectural slab and the cast-indrains to the extent of water ingress and the degradation of the structural reinforcingowing to water ingress.[405] Vero suggested that the architectural slab should be removed and replaced,with its waterproof membrane also reinstated. It also suggested that the cracks in thestructural slab are repaired via epoxy injection and that strongbacks are installed tosupport the Unispan planks.[406] The plaintiff suggested that the whole of the ground-floor slab be removed andreplaced, with the waterproof membrane being reinstated. It also suggested that thecracked Unispan units be removed and replaced.[407] I prefer the evidence of Vero on this building element because it has providedthe best forensic evidence in terms of actual invasive investigations undertaken.I therefore prefer Vero's proposed method of remediation in respect of theground-floor slab.Ground-floor beams[408] The plaintiff's experts said there is widespread cracking in all primary beamsin the longitudinal direction of up to 1 mm in width. They said that cracking was alsoobserved in numerous secondary beams in the transverse direction. Those cracks wereobserved to be up to 0.8 mm in width.[409] Further, the plaintiff's experts said that moisture ingress at the top of many ofthe ground-floor beams indicates the steel reinforcement in the beams has beencompromised.[410] As a result, they concluded that the strength, stiffness, durability andappearance of the ground-floor beams has been altered by damage caused by the CES.They said the strength and stiffness of the beams has been reduced as a result of thecracking and the durability of the beams has been affected by the corrosion of the steelreinforcing.[411] The plaintiff proposed that the appropriate remediation in those circumstancesis the removal and replacement of the ground-floor beams.[412] Vero's experts agreed there is widespread cracking in the ground-floor beamsbut said there was in all likelihood cracking in the beams caused by natural shrinkagethat existed before the CES and the CES will have exacerbated the cracks. In essence,then, Vero agreed there is damage caused by the CES that requires remediation.[413] However, Vero said there is no evidence to support the plaintiff's case that thestrength and stiffness of the ground-floor beams has been altered by the CES nor thatthe durability of the ground-floor beams has been affected by water ingress into thebeams, thereby causing corrosion of the steel reinforcing. Vero's experts suggestedthe cracks should be repaired through epoxy injection.[414] By way of context, I note that neither the Structex nor the Quoin reportsconcluded there was any structural damage to the ground-floor beams.[415] As to the cracking, I refer to the Beca crack mapping. It shows that thecracking in the ground-floor beams is almost entirely perpendicular. I have alreadyreferred to the importance of the type and size of the cracking in terms of its effect onthe strength and stiffness of a concrete member (and therefore its structuralfunctionality) at [178]–[196]. None of the cracks are more than 1 mm wide in thesebeams and therefore the prestressing does not appear to be compromised.[416] The plaintiff has not established that these beams (or the building as a whole)have yielded beyond their capacity because of the observable cracking.[417] Mr Govind's evidence was that water ingress appeared to be tracking throughthe ground-floor beams and causing "accelerated corrosion" of the steelreinforcement. Ms Stanway's evidence was that this damage to the reinforcing couldnot be ruled out.[418] As I have already found at [403(c)] that the water ingress into the basementappears to be coming through the intersections of the precast flooring elements andbasement walls and beams, and not through the ground-floor beams themselves, I donot accept the experts' evidence at [417].[419] In summary, I find the plaintiff has not established that the ground-floor beamsneed to be removed and replaced. They can be remediated by epoxy injection asproposed by Vero.Apartment building superstructureConcrete slab on the first and second floors[420] The parties agree there is cracking to the topside of the concrete floor of thefirst and second storeys in various locations of up to 1 mm wide and that there isdislevelment (of an unidentified degree).[421] The extent of the cracking and dislevelment in these elements is not known.As far back in the life of this case as 20 April 2016 Structex recommended that "[a]nallowance should be made to lift all internal floor linings in all units to inspect theconcrete topping".[422] In that report, Structex acknowledged that only limited floor toppinginspections had been undertaken by itself, Calibre and EQC.[423] It is evident that the Beca experts have relied on "others" as to the extent of thedamage to these floors. The August 2019 JER records its position as to the proposedrepair methodology:Due to extensive cracking observed by others, locally remove cracked areasof concrete first and second floors and replace with new sections of slab with125 kg/m3 reinforcement. We note that the cracking is likely to be typical inunits that were not inspected and that the entire first and second floors mayrequire replacement.Refer to Beca reinstatement methodology sketches for extent.[424] In light of this evidence, it seems clear that all the experts accept there isdamage but that the extent of the damage is to be clarified by proper inspection. Theextensiveness of the cracking and dislevelment and the extent of any reduction instiffness of the elements will need to be clarified. It may be that the floors can beremediated entirely by epoxy, or alternatively that some sections may need to bereinforced or even that the floors may need entire replacement. The Court, in thesecircumstances, is not in a position to make the call.First and second-floor north balconies[425] The parties agree there is cracking to all relevant balconies. They do not agreeon the extent of cracking that was caused by the CES.[426] The August 2019 JER records Mr Govind's opinion as to the repairmethodology for the first and second-floor balconies that:Due to cracking of balcony finishes, cracking of concrete and differential falls,remove and replace cracked first and second floor balconies includingminimum 1m of back span concrete topping within the units.[427] BMC's remediation approach is recorded as:Epoxy inject all cracks in the concrete and masonry elements (beams,columns, walls).Remove and reinstate all tiles.[428] After Quoin's inspection of the buildings, it recorded that:(i) The differential falls typically vary between 15-40mm, over a lengthof approximately 1800mm.(ii) There is one location (unit 7) where the differential fall is 80mm.There are 0.5-0.6mm wide cracks in the internal floor topping of theunit adjacent to and typically orientated perpendicular to the directionof the fall in the balcony.(iii) Extensively cracked and damaged balcony finishes/tiles throughout.(iv) Cracking may extend into the concrete balcony elements. This hasnot been verified.[429] I prefer Quoin's assessment as a more forensically accurate view of thisdamage than that of Mr Govind but also as a more conservative approach than that ofVero's experts.Third-floor balconies[430] The plaintiff's experts said there is extensive cracking to the third-floorbalconies and they should be removed and replaced in their entirety.[431] Vero's experts are of the view that, once all the cracks have been injected withepoxy, only the tiles should be removed and reinstated.[432] Following its inspection of the third-floor balconies, Quoin recorded:(i) The differential falls typically vary between 14-42mm, over 900mm.(ii) Extensively cracked and damaged balcony finishes/tiles throughout.(iii) The cracking extends into the concrete balcony elements. Theprimary cracks are orientated north-south and located at regularcentres. The cracks are visible on both the top and underside of thebalconies.[433] Quoin's view on remediation was as follows:(i) Crack repairs to the concrete balconies and floor beams will berequired.(ii) Allow to remove all balcony coverings, epoxy inject cracks greaterthan 0.2mm in width, and reinstate coverings.(iii) Allow to paint over all cracks less than 0.2mm in width.[434] I rely on the Quoin assessment and am fortified in my view by the fact itappears to support the opinion of Vero's experts.Third-floor housing units[435] The parties are agreed that there is wall misalignment in some of the third-floorhousing units (particularly near the junction of Units 14 and 39). That view issupported by the earlier Structex and Quoin reports which opined that the remainingmisalignment was within construction tolerances.[436] The plaintiff says that the strength, stiffness, durability and appearance of thesehousing units have been altered and "may" have been reduced. Vero says the wallsneed simply to be realigned and that there has not been any damage to the structuralfunctionality of these elements.[437] I note that the plaintiff's experts did not inspect all of the housing units andthat their report is, in any event, phrased in conditional language.[438] The preponderance of the expert evidence is that these walls only needrealignment and not replacement (save for the walls near the junction of Units 14 and39).[439] Thus, I find that the walls need only be realigned, with the possiblereplacement of the walls at or near the junction of Units 14 and 39.Internal suspended timber floors (third level)[440] The internal third floor level is separated into three distinct sections:• Units 39 and 14 to the west side;• Units 20, 23 and 26 to the centre; and• Unit 40 to the east side.[441] The parties agree there is cracking to the concrete floor beam for the timberfloor on the third level. The parties also agree there is dislevelment in the third floorbut disagree as to the cause of the dislevelment.[442] Mr Govind noted in his evidence:The timber third floor levels are outside of construction tolerances prescribedby New Zealand construction standards (NZS3604: Timber-framed buildings)and related to the overall rotation of the building caused by differentialsettlement of the main building structure. [443] Beca's suggested remediation method was to "relevel" Units 14 and 39 andremove and replace the Unit 39 concrete floor beam.[444] Vero's experts conducted an investigation in June 2019 which involved liftingthe carpet to Unit 14 to inspect the floor for signs of earthquake damage. They foundno damage and therefore concluded the differential levels in the floors were likely aresult of long-term sagging (curving of the beams downwards) under gravity loadingand not earthquake damage.[445] Further, Vero's experts said that, while the sagging has led to differential levelsoutside construction tolerances, if they were caused by the CES they should beconsistently reflected across all levels of the building and this is not the case.[446] Vero's suggested remediation was to inject epoxy into the cracks in theconcrete beam. It did not suggest any repairs to the timber floor.[447] Quoin did a more fulsome investigation of the floors (having also carried outnumerous inspections of the buildings since the CES) as detailed in its 29 August 2016report. Quoin concluded that the building is not grossly out of alignment, but therewas localised differential falls in Units 39 and 14 outside of construction tolerances.It found cracks in the concrete floor beam in Unit 39 together with broken concrete tothe edge of the floor beam in Unit 39.[448] I prefer the evidence in the Quoin report to that of either the plaintiff's or Vero'sexperts because the investigation appears to have been more reliable as it was moreproximate in time to the damage.[449] Thus, I conclude that any remediation should include allowance for:(a) removing floor coverings and flooring in Units 39 and 14 andrelevelling the floor joists:(b) repairing cracks to the concrete floor beams by epoxy injection forcracks greater than 0.2 mm in width; and(c) breaking back the damaged/broken concrete and providing concreterepairs.Masonry block walls[450] It is agreed that the plaster and external fibre cement board on the walls hascracked as a result of the CES. What is not known is the full extent of the cracking.The parties agree that, in order to undertake the works to address the cracking to theconcrete frames by epoxy injection, the plaster will need to be removed from bothsides of the walls. If cracking has occurred in the mortar or face of the masonry shellbut not the concrete core, the epoxy repair of the cracks in the masonry walls suggestedby Vero can be undertaken easily. If, however, cracking is observed in the core orsignificant damage has occurred to the walls, those walls will need to be replaced intheir entirety.Windows and joinery[451] The parties are agreed the building's aluminium windows, sliding doors andcladding have been damaged by the CES and need to be replaced.Stairs and landings[452] The damage to the stairs and landings is agreed by the parties and set out aboveat [226].[453] Cracking was observed to the precast concrete stairs and landings throughoutthe building. Cracking of the stair units has likely occurred from differentialmovement of the floors. However, with the exception of the Unit 2 stair, this does notappear to have resulted in any permanent deformations of the stairs.[454] The precast stair to Unit 2 was identified as having a drop of 10 to 15 mm atits midspan. This has likely resulted from the stair being compressed by the movementof the first floor, causing it to deflect downwards. There was also some evidence ofspalling and rust staining on the masonry stairwell walls. The parties agreed that thestairs to Unit 2 need to be demolished and rebuilt.[455] The plaintiff's experts suggested the cladding sheets need to be removed andreplaced where there is cracking present. They also suggested that the masonry wallswithin the stairwells and those walls with evidence of moisture ingress need to beremoved and replaced. They said the concrete stairs and landings with concretedamage also need to be removed and replaced. Vero's experts suggested that theheavily damaged sections of masonry walls be rebuilt and the rest be injected withepoxy.[456] The preponderance of the expert evidence (Structex, Quoin and BMC)supports remediation being effected by epoxy injection together with removal andreconstruction of the stair flight and landing to Unit 2 (west-end stair). I find no reasonhas been advanced by the plaintiff to depart from the majority expert opinion in thisregard.Internal damage[457] The parties are agreed cracking has occurred to the plasterboard walls andceiling linings within the units. With the exception of the third-floor units, theselinings are not considered part of the primary structural system and as such the internalwalls may be treated as partitions.[458] This cracking to the units, which was recorded by Structex and Quoin, isconsidered minor and insufficient to have material effect on the ongoing performanceof the structure. However, portions of the internal plasterboard linings will requireremoval to enable access to structural elements for assessment and repair.Pool house and gym[459] The parties agree as to the damage to the pool house and gym noted above at[226]. They also agree there has been cracking to the block walls but disagree as tothe nature and extent of the cracking.[460] The parties previously agreed that damage to the pool house could beaddressed by repair rather than demolition.[461] Vero proposes to address the cracking and voiding beneath the pool-housefloor slab by:(a) epoxy injection of cracks; and(b) void filling underneath the slab.[462] Vero also suggested removing and replacing the plasterboard cladding andfloor coverings of the pool house.[463] Mr Govind now says that the pool house must be demolished and rebuiltbecause of his concern that the grout used to fill voids underneath the slab willoverflow into the neighbouring property. He claims that the building is on the northernboundary. This is incorrect. The plans indicate that the pool house is setapproximately 240 mm off the northern boundary.[464] The plaintiff has submitted that the owners of the neighbouring land would notconsent to the works, without first seeking their view.[465] Mr Hobbs has confirmed that in his view there are no issues with groutmigration across the boundary given the proposed methodology. The proposal is touse a low-pressure system and a high viscosity grout of a consistency closer toconcrete than water. Under these circumstances, Mr Hobbs did not expect migrationof the grout through the soil structure. Mr Wilson advised the Court there was acommon methodology which could be used to inject the grout (curtain wall injection)which would prevent the migration of the grout filler onto the neighbouring land.[466] The plaintiff has done no more than raise a possibility that the repair proposedby Vero would inevitably be inefficacious and provided insufficient evidence insupport of their view to meet the onus of proof.[467] I am satisfied Vero's proposals for the pool house and gym remediation shouldbe preferred.Summary — apartment building superstructure[468] The plaintiff's proposed remediation method is unnecessary to address thedamage to the buildings, would be risky and impractical to carry out and may notdeliver improved performance in a future earthquake event.Summary of findingsPile heads[469] As discussed at [273], there is no scope for the Court to find that the pilessuffered earthquake damage as there is no evidence to that effect before the Court.This trial was the occasion for the plaintiff to produce any evidence it had of piledamage. Not only has it not done so, its experts have also belatedly resiled from priorconclusions that there is pile damage and from the modelling that produced thatconclusion. Furthermore, I consider that Dr van Ballegooy's evidence to the effectthere has been no pile damage is more likely than not to be the most reliable.The basement slab[470] As outlined at [346], it is premature on the evidence to say that demolition ofthe basement slab may not in fact have to occur. That conclusion will depend on thetrials to be undertaken preliminary to the proposed application of epoxy injection. Ifthose trials reveal that the proposed remediation is not effective, for instance becausethe sheer extent of the cutting and drilling of the slab necessarily affects its structuralintegrity, another method of remediation may have to occur which may include thecomplete reconstruction of the slab. What would be required by ground improvementin those circumstances has not been fully ventilated in the evidence before me.[471] Further, as set out at [347], the alternative remediation scheme for the BFFSraised by the plaintiff during the course of the hearing cannot be endorsed as a suitablemethod given the lack of evidence and pleading in relation to it.The basement superstructure[472] At [378] I have found that the epoxy repaired concrete elements will meet thepolicy standard of restoring the damage to a condition substantially the same as itscondition "when new" given that the minor reduction in stiffness is unlikely to have asignificant effect in a future event.Unispan floor planks and structural topping[473] At [392] I have found that the only proper solution is the replacement of thecracked Unispan to redress the cracking and restore the Unispan structural slab to itscondition when new.Ground-floor slab[474] As outlined at [407], I prefer Vero's approach to remediation of theground-floor slab.Ground-floor beams[475] At [419] I have found the plaintiff has not established that the ground-floorbeams need to be removed and replaced. They can be remediated by epoxy injectionas proposed by Vero.Apartment building superstructure[476] As discussed at [468], the plaintiff's proposed remediation method for theapartment building superstructure is unnecessary to address the damage to thebuildings, would be risky and impractical to carry out, and may not deliver improvedperformance in a future earthquake event.Relief sought[477] The plaintiff seeks the following orders:(a) a declaration that Vero must pay to the plaintiff the cost to repair thedamage caused by the CES to the building according to the Becaextended reinstatement methodology (Rev C) dated 30 October 2020with the following additions/amendments/clarifications:(i) whether the piles are to be decommissioned in favour of a gravelraft or, alternatively, reconnected to the new slab is a matterreserved for detailed design with leave reserved to either of theparties to revert to the Court for further declarations as required;(ii) basement lid Unispan panels with cracking shall be removedand replaced with new;(iii) all window and door aluminium joinery shall be removed andreplaced with new double-glazed powder coated joinery; and(iv) the pool house shall be demolished and reconstructed;(b) leave is reserved to either of the parties to further address the Courtconcerning pile head damage as required;(c) leave is reserved to either of the parties to apply further in respect ofany further entitlement under the policy and/or breach of the policy,including in respect of payment of indemnity value and implementationof the Court's orders; and(d) costs reserved for further submission.[478] By reason of the findings I have made, the plaintiff has been only partiallysuccessful in relation to the declarations it seeks.[479] Both parties will need now to consider the implications of the determinationsof fact in this judgment.Orders[480] In light of the ongoing matters relating to indemnity payment referred to at[34]–[39] above, I reserve leave to the plaintiff, Body Corporate 328564, to applyfurther in respect of any entitlement under the policy and/or for any breach of thepolicy.[481] I reserve leave for the parties to file a memorandum or memoranda if theywould be assisted by the Court making in declaratory form the particular findings offact that have been made.[482] I reserve costs and disbursements with those matters to be dealt with upon thebasis of memoranda filed (no more than 10 pages each) with appended schedulessetting out relevant costs calculations and details of disbursements with copies of allrelevant fee notes.Doogue JSolicitors:Rhodes & Co, ChristchurchMcElroys, AucklandAPPENDIX AGlossary of termsAxial load an applied force that acts directly along the axis ofa building element (for example, the weight of abuilding sitting on a column). Tension is an axialforce that acts to lengthen (stretch) a member,while compression is an axial force that acts toshorten (squash) a member.Beam-column joint the junction of a beam and column.Braced frame a really strong structural system commonly usedin structures subject to lateral loads such as windand seismic pressure. The members in a bracedframe are generally made of structural steel, whichcan work effectively both in tension andcompression.Cold joint a plane of weakness in concrete caused by aninterruption or delay in concreting operations asthe batches of concrete do not intermix.Continuous load path the structural condition whereby a building canonly be designed to resist earthquakes if it isconsidered as a whole; that is, decisions madeabout the design of one aspect of a structureimpact upon the demands placed on other aspects.Cores cylinders of concrete that are extracted for testingof the concrete.Cyclic loading the application of repeated or fluctuating stressesand strains (as in an earthquake).Deformation the change in size or shape of an object.Deflection the degree to which an element changes shapewhen a load is applied.Diamond Dowels a trademarked type of steel plates that have astructural purpose, which is to transfer the load onthe basement floor slab to the basement groundbeams.Diaphragm a horizontal element in a structure that transmitsinertial forces from the floor system to the verticalelements of the structure.Differential settlement the uneven or unequal settling of a building'sfoundation, usually caused by shifting of the soil.Ductility the ability of a material to plastically deform (thatis, change permanently due to applied force)without fracturing.Displacement the overall change in the position of a body(including a direction) between two points in time.Efflorescence white crystalline deposits that form on the surfaceof concrete, caused by vapour migrating throughthe concrete and bringing salts to the surface.Elasticity the ability of a deformed body to return to itsoriginal shape and size when the forces causingthe deformation are removed (an elastic elementwill deform temporarily and an inelastic elementwill deform permanently on removal of the force).Energy dissipation capacity the ability of a structure to remove unwantedenergy.Fatigue life the number of loading (stress or strain) cycles of aspecified nature that a specimen sustains beforefailing.Flexure the action or condition of bending or curving.Gravity frame structural framing that is proportioned to havestrength and stiffness as required for gravity loads.Gravity loading force applied perpendicular to the ground; verticalforces acting on a structure.Lateral loading force applied parallel to the ground; horizontalforces acting on a structure.Loading force applied to a structure or its components thatcause stress or displacement.Member a physically distinguishable part of a structuresuch as a wall, beam, column, slab or connection.Moment the tendency of a force to rotate a structure(causing it to bend).Moment-resisting frame a rectilinear assemblage of beans and columns,with the beams rigidly connected to the columns,which provides resistance to lateral forces bytransferring them from the upper level of abuilding to its foundations.Prestressed concrete a form of concrete where initial compression isintroduced in the concrete (by high-strength steelwire or alloys called tendons) during production ina manner that strengthens it against loads imposedin service.Rotational stiffness the ability of a material to resist rotation caused byapplied moment.Shear a type of force that acts in a direction parallel to(over the top of) a surface or cross-section of astructure.Shear key structural fuses to prevent the transmission oflarge seismic forces to the piles.Shear wall a vertical structural member in a reinforcedconcrete structure that is designed to resist lateralforces acting on it (such as seismic loads).Spalling the breakdown of concrete that results in sectionsof cement flaking, peeling or chipping off the mainbody.Stiffness the rigidity of a structural element — that is, theextent to which the element is able to resistdeformation or deflection under the action of anapplied force, such as seismic activity, and returnto its original formation.Strength the amount of force that can be applied to anelement before it fails (namely, when it can nolonger support the load).Strongback a beam or girder which acts as a secondary supportmember to an existing structure.Structural system the method of assembling and constructingstructural elements of a building so that theysupport and transmit applied loads safely to theground without exceeding the allowable stressesin the members.Superstructure the visible part of a building that sits above theground.Tensile strength the amount of load or stress that a material orelement can support without fracture when beingstretched.Voiding the formation of gaps or holes within or beneathconcrete slabs.Yielding the permanent deformation of a material orelement due to stress or loading.APPENDIX B – Beca Crack MappingAPPENDIX C – The ExpertsPlaintiff's expertsThe plaintiff called Mr Samir Govind, Ms Jan Stanway and Mr Campbell Keepa.Mr Govind was the lead author of the 10 November 2017 Beca Report and attendedthe conferral which produced the first JER on 5 September 2018. He is a technicaldirector of structural engineering at Beca. Mr Govind joined Beca in 1996 and hasworked there for the last 26 years. He has, throughout his career, specialised instructural engineering. He has won a significant number of awards. He has workedon a number of commercial buildings and industrial facilities (varying from newbuilding developments to strengthening and repairing existing buildings), and morerecently on earthquake insurance damage assessments and reinstatement schemes fora number of commercial and institutional clients.Ms Stanway and Mr Keepa joined the plaintiff's expert ranks when in late 2020 theissue arose of damage to the piles of the main apartment building.Mr Keepa is a technical principal engineer employed by WSP. He has worked as acivil engineer for 20 years. For the last 15 years his specialist field has beengeotechnical engineering and geotechnical earthquake engineering, and he has workedon a number of commercial buildings and infrastructure projects. He is the author ofmore than 10 published geotechnical engineering papers, some related to the designof foundations on liquefiable sites.Ms Stanway is a principal structural engineer employed by WSP. She has worked asa structural engineer for the last 27 years. Her specialist field is structural engineeringand the seismic performance of non-structural elements.Ms Stanway has worked on a number of commercial buildings and industrial facilities.She is the New Zealand Industry Champion tasked with improving the seismicperformance of non-structural elements through the Building Innovation Partnership(BIP) programme, which is an industry-led research programme that responds toselected challenges and opportunities facing the building and construction industry.She has also co-authored three papers with Professors Tim Sullivan and Rajesh Dhakalfrom the University of Canterbury (in 2018 and 2020) that focus on improving theseismic performance of non-structural elements in New Zealand and the developmentof a national framework for the seismic rating of non-structural elements in buildings.Vero's expertsVero called as its principal witnesses Mr Michael Hobbs, Dr Nicholas Brooke, Mr IanMcCahon, Mr Desmond Bull, and Dr Sjoerd van Ballegooy.Mr Hobbs was Vero's lead expert. He assumed the mantle in August 2019 after hiscolleague Mr Warren Batchelar (who was one of the experts from the outset) withdrewfrom the project due to health issues. He is a senior structural engineer with BMC.He has practised as a structural engineer for nine years. His practice area is the design,construction monitoring, and assessment of low-rise buildings (generally defined byEngineering New Zealand as less than five storeys). He has experience in thestructural design, assessment, and construction of reinforced concrete and masonrybeams, columns, walls and floors (also known as diaphragms).Mr Hobbs has structurally designed and assessed numerous industrial, commercial andresidential buildings and has developed, reviewed and supervised the implementationof repair strategies for such buildings. These assessments and repair strategies haveinvolved the use of:(a) forensic assessment, including assessment of building degradationowing to earthquake damage in concrete, masonry and steel members;(b) 3D-modelling and analysis; and(c) epoxy injection repair techniques for concrete members, including bothinjection of fresh cracking and reinjection of poorly completed epoxyrepairs.Dr Brooke was called by Vero because of his expertise in structural engineering. Heis a principal of Compusoft Engineering Ltd and has practised as a structural engineerfor more than 15 years. He is the current president of the Concrete New ZealandLearned Society, a member of the board of Concrete New Zealand and the currentvice-president of the Structural Engineering Society of New Zealand. His specialistareas of expertise include the design and assessment of reinforced concrete structures,including the effects of earthquakes on such structures.Dr Brooke has provided numerous clients with advice on the nature, extent andsignificance of earthquake damage to buildings in Wellington and Christchurch. Thesebuildings range from single dwellings to very large buildings (up to 20 storeys andapproximately 25,000 m2).Mr McCahon was called by Vero because of his expertise as a geotechnical engineer.He has 45 years' experience in geotechnical and civil engineering. He is a director ofGeotech Consulting Ltd. Much of his work for the last 35 years has been ongeotechnical investigation and design for building foundations throughoutChristchurch and elsewhere.While he has not practised as a structural engineer for 30 years, he did practice in thefield for the first 15 years of his career. Although his experience is not current, I amsatisfied that background provided him with a good understanding of how structuralsystems work.In addition, Mr McCahon has a longer involvement with these buildings than any otherexpert. His involvement with the buildings at 400 Durham Street began in May 2002when he was asked to prepare a geotechnical report for the development. He plannedand oversaw site testing, carried out analysis and compiled the initial geotechnicalreport dated June 2002. He was subsequently retained to provide geotechnicalengineering input during the pile construction and ongoing issues related to the sitedewatering during 2002 to 2003.Mr Desmond Bull was engaged by Vero for his vast experience as a structural engineer.He is a technical director and senior partner of Holmes Consulting LP. HolmesConsulting is a consulting engineering company specialising in structural and civilengineering. Mr Bull has practised as a structural engineer for 40 years and is aDistinguished Fellow of Engineering NZ (formerly the Institution of ProfessionalEngineers New Zealand).He has served on the Code Revision Committees for the national Standards: NZS3101: Concrete Structures and NZS 1170.5: Earthquake Loads, and has providedevidence with respect to structural engineering and performance of buildings inearthquakes to the Canterbury Earthquake Royal Commission hearings.Mr Bull has written or co-written some 150 papers and eight designguidelines/manuals used in New Zealand.Guidelines, in use nationally, that he has contributed to include:(a) design methods for reinforced concrete buildings — beams, columns,walls, foundations, piles, and floors;(b) design of reinforced concrete masonry buildings; and(c) assessment of the performance of existing reinforced concretestructures when subjected to future earthquakes.[483] The final principal witness for Vero was Dr van Ballegooy, a seniorgeotechnical engineer and technical director at Tonkin + Taylor Ltd, a geotechnicalconsultancy company. Dr van Ballegooy has been a practising engineer in NewZealand for the past 17 years, specialising in geotechnical work. He has extensivelysupported the Engineering Advisory Group for MBIE for the development of technicalguidelines for repairing and rebuilding houses affected by the CES.He has conducted numerous geotechnical investigations for New Zealand insurers,individual property owners and developers in relation to residential and commercialproperties.Dr van Ballegooy's main specialisation area is earthquake engineering, includingseismic site response, liquefaction, lateral spreading, effects on structures and groundimprovement, hazard mapping, earthquake loss modelling, earthquake resilienceassessment and stakeholder engagement (which includes expert evidence work forhearings, mediations and the courts).Dr van Ballegooy has been involved in leading the geotechnical response to thedamage caused by the CES and the 2016 Kaikōura earthquake and received theQueen's Service Order, Honorary Companion, for his services to geotechnical science.His main roles involved helping the Canterbury Earthquake Recovery Authority(CERA) determine the areas where to rebuild and not to rebuild, helping EQCunderstand its land liabilities, and overseeing the mapping of the land damage,building damage and the ground surface changes as a result of the earthquakes throughremote sensing technologies including the LiDAR (light detection and ranging) datasets. Dr van Ballegooy has been the architect of and overseen the development of theonline New Zealand Geotechnical Database (NZGD) system.Dr van Ballegooy also designed and led the Christchurch Ground Improvement trialsto assist the development of the MBIE technical guidelines for repairing andrebuilding houses affected by the CES. These guidelines were developed to enableresidential Christchurch to be rebuilt with greater resilience to future damage usingaffordable solutions.Finally, Mr Nyman and Mr Wilson. Mr Nyman is a chartered professional fireengineer and is the director of Fire Review Solutions Ltd. Mr Wilson is a strategicbusiness innovator employed at the Connect Group Ltd.