BLIGH v EARTHQUAKE COMMISSION & IAG [2018] NZHC 2102

BLIGH v EARTHQUAKE COMMISSION & IAG [2018] NZHC 2102 [16 August 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2013-409-001333[2018] NZHC 2102BETWEEN DEREK RICKY BLIGHPlaintiffAND EARTHQUAKE COMMISSIONFirst DefendantAND IAG NEW ZEALAND LIMITEDSecond DefendantHearing: 19 February – 6 March 2018Appearances: R J Lynn and E J Flaszynski for the PlaintiffN S Wood and J W Upson for the First DefendantP M Smith and S J Connolly for the Second DefendantJudgment: 16 August 2018JUDGMENT OF NATION JIntroduction 1The legal context 13The IAG policy 13Earthquake Commission cover 16Burden of proof 31Assessing credibility 39Mr Bligh 51Mr Jerome Larason 90Mr Peter de Boer 97Ms Dawn Clark 100Mr Peter Smith and Mr Mark Kearney 106Mr Malcolm Clark 139The claimed damage as particularised 150New cracking and exacerbation of existing cracking generally to all brick walls151Exacerbation to the vertical cracking on the first floor brickwork walls 151Horizontal displacement of external brick at north western corner 151Dislodgement of brick on south western outer face of the first floor 151Separation of the outer bricks from the inner bricks including at the edges of thebrick work around window openings on the external walls 151Loosening of window frames with relation to the surrounding brickwork 151(i) The south wall 184(ii) The east wall 188(iii) The west wall 192(iv) The north wall 193(v) Loose bricks on top of the walls 199Cracking of external plaster surface 220Cracking to external plaster at windows on the southern face of the first floor 220Minor horizontal cracking to the ground floor 228Exacerbation of the cracking and minor spalling below the window on the southwestern inner face of the external wall of the ground floor 228Exacerbation of the cracking and minor spalling above the window in the southwestern corner. 228Damage to the reinforced concrete columns and lintel above the new front door240Horizontal cracking through sections of the new bond beam 244Minor cracking between bond beam and existing walls 244Cracking to the foundation slab 247Possible formation of voids under the foundation slab 247Separation of sheet joins and damage to finish around doors and windows 264Cracking in internal plaster 266Cracking in the corners of internal walls on the first floor 268Separation and damage to the finish of the first floor tongue and groove walls 268Damage to the plaster in the tongue and groove section of the first floor ceiling268Separation of skirting boards and hallway from walls on the first floor 268Tongue and groove boards in first floor hallway have separated leaving gaps andcreating draughts 268Cosmetic damage to the house including patches of paint coming adrift in masterbedroom. 268Loose fixings in the roof 298Leaks to the roof above the master bedroom and above the flue of the log fire 298Split roof rafter 298Floor in extension hallway bouncy, indicating failure of sub floor elements 315Minor damage at sheet joints and door trims to extension 315Cosmetic damage to the extension including to the sleep out above cellar 315Nails popped in the gib walls 315Cracks in paint and plaster seal at joints of panels 315Cracking to asbestos panels in the extension 315Leak to the cellar 326Damage to external paths 342Settlement of the eastern portion of the garage slab as well as cracking withhorizontal and vertical displacement in this area 361Undulation of garage roof sheeting 361Water marks at discrete intervals on the roof purlins 361Racking of door at western end of northern face of garage, latch vertically offsetfrom strike plate 361Garage door now catches on the foundations at the western end 361Some exacerbation to slab cracking and undulations, as well as cracking to thefoundation beam at the western end and very minor undermining of the foundationat the eastern end 361The western end of the garage wall has moved out of vertical 361The lock and catch to the door on the north face of the garage towards the westernend no longer align 361Bargeboard at both the western and eastern end of the garage have fallen off. 361(i) Slab cracking 361(ii) The roof 374(iii) The tilt door 394(iv) Changes to the western end of the garage 404Unknown damage to the bore 419Summary of conclusions 424Introduction[1] Mr Bligh owns a residential property at 29 Waddington Road, Waddington. Itis in an area affected by the Darfield earthquake, the first major earthquake in theCanterbury earthquake sequence, which occurred at 4.35 am on 4 September 2010.[2] The house is two storey. Mr Bligh describes it as Georgian style. Below is astreet view image of the property taken in July 2012, after the earthquake.[3] The ground floor of the house was built in the 1860s. The ground floor wallsof the house are made of unreinforced concrete. The first floor was added around1897. Beams of hardwood were placed on top of the concrete walls. On top of thosebeams, the walls were double brick.[4] To the rear of the house is a timber-framed structure (the annexe). It includesa shower and a toilet, a laundry and a sleepout, situated over a cellar which wasformerly a well. Separated from the house is a large out-building I refer to as thegarage but it is more in the nature of a large shed.[5] Mr Bligh purchased the house in April 1985. He planned to make variousalterations and had made some significant progress in this regard. Around 1988, inaccordance with detailed engineering designs, the wooden beam above the concretewalls was replaced with a reinforced concrete beam. The ground floor was removedand replaced with a reinforced concrete slab, with deeper concrete beams next to thefoundations and at intervals across the floor. The roof was replaced. In the late 1980s,Mr Bligh chipped the plaster off the exterior of the first floor walls on the east, northand some of the west side of the house. Substantial new windows and doors wereinstalled on the ground floor. All the downstairs interior walls were removed, as wasthe ground floor ceiling.[6] Unfortunately, because of illness and a series of unanticipated life events, therewas little progress with the planned improvements after the early 1990s. In 1991, allinternal walls on the ground floor had been removed with only odd posts in places toprop up the first floor. Exposed electrical wiring hung down from posts and the floorabove. Mr Bligh continued to live in the home with the interior in a substantiallyaltered but incomplete state.[7] In these proceedings, Mr Bligh claims that the first floor walls and other partsof the house, the annexe and the garage suffered major structural damage in theDarfield earthquake. He claims the cost of repairing that damage will be in excess of$950,000.[8] Mr Bligh had insured the property with State (now IAG) and, through thatpolicy, was covered by the Earthquake Commission Act 1993 (the EQC Act).[9] EQC had various experts inspect the building for earthquake damage. Initially,assessors thought there was earthquake damage. An experienced builder employed byEQC, Mr Malcolm Clark, inspected the property on 8 December 2010. An engineer,Mr Peter Smith, carried out a detailed inspection on 23 December 2010. Anotherengineer, Mr Graeme Robinson, reviewed various reports and inspected the propertyhimself on 12 January 2011. It was their advice to EQC that the buildings had notsuffered any material damage as a result of the Darfield earthquake.[10] Under the house insurance policy, IAG would be liable to repair Mr Bligh'shome only if it suffered material damage as a result of the Darfield earthquake and thecost of repairing that damage would be in excess of the EQC cap of $115,000 includingGST. IAG supports the position taken by EQC over whether there was materialdamage to the home. It says there was no damage and, if there was any, it would nothave cost more than the EQC cap to repair, so IAG has no liability to Mr Bligh underits policy.[11] Mr Bligh is adamant that the experts engaged by EQC were wrong in theopinions they came to.[12] Mr Bligh's opinion, the evidence in his support from a structural engineer MrMark Kearney, and the opinions of other witnesses for the parties were the subject ofdetailed examination when these proceedings were heard earlier this year.The legal contextThe IAG policy[13] Under the IAG policy, Mr Bligh was covered for sudden accidental loss to thehome that happened during the period of cover. There is no dispute the house, annexe,garage and water tank were insured under the IAG policy. "Accidental" was definedin the policy to mean "unexpected and unintended by you". "Loss" was defined tomean "physical loss or physical damage".[14] Under the policy, IAG agreed with Mr Bligh:If you have a loss that is covered by this policy and you repair or rebuild thehome, we'll pay: cost of repairing or rebuilding the home to a condition assimilar as possible to when it was new, using current materials and methods.[15] Losses were covered by IAG only to the extent they were not covered by EQC,and then only if EQC had not declined the claim.Earthquake Commission cover[16] EQC accept that, because Mr Bligh had a "contract on fire insurance" withIAG in respect of a "residential building", his building was deemed to be insured underthe EQC Act against "natural disaster damage" for its "replacement value".1 The limiton EQC's liability for the costs payable by an insured replacing or reinstating theproperty was $115,000 inclusive of GST.2 If a property suffers natural disaster damageduring the period for which it is insured under the EQC Act, EQC must settle anyclaim to the extent to which it is liable under the EQC Act. At EQC's option, EQCmay settle by payment, replacement or reinstatement under s 29(2) EQC Act or by acombination of payment and replacement or reinstatement.3[17] In relation to property, "natural disaster damage" is defined as meaning "anyphysical loss or damage to the property occurring as the direct result of a naturaldisaster".4 In O'Loughlin v Tower Insurance Ltd, Asher J considered, in the contextof the insurance of a house from loss or damage from accident, the word "physical"meant loss or damage to the materials and structures that constituted the body of thehouse.5 It does not include purely economic loss.[18] In Earthquake Commission v Insurance Council of New Zealand, the FullCourt of the High Court, considered that, for there to be "natural disaster damage" toresidential land for the purposes of the EQC Act, there needed to be a physical changeor loss to the body of the land that had occurred, or was imminent, as a direct result ofthe earthquakes, and which affected the use or amenity of the land.6[19] In Krall v Earthquake Commission, the Court of Appeal considered whetherthere was "natural disaster damage" to a house where the threat of rockfall and otherhazards caused by the earthquake had led to a local council prohibiting persons fromapproaching or entering the house.7 The Court of Appeal held that the loss flowingfrom the insured person's inability to use the house in these circumstances was not1 Earthquake Commission Act 1993, s 18.2 Earthquake Commission Act 1993 ss 18(1)(c), 29(3).3 Earthquake Commission Act 1993 Sch 3, cl 9(1)(a).4 Earthquake Commission Act 1993 s 2(1)(a).5 O'Loughlin v Tower Insurance Ltd [2013] NZHC 670 at [43].6 Earthquake Commission v Insurance Council of New Zealand Inc [2014] NZHC 3138 at [70].7 Krall v Earthquake Commission [2015] NZCA 13."natural disaster damage". The Court of Appeal held that, in the case of a house, therehad to be "physical" loss or damage to the structure and materials of the house.8 Theyheld that "damage" had to be harm done to something that impairs its value orusefulness.9[20] In Sadat v Tower Insurance Ltd, a claim was made that there was furthercracking to foundations already in a damaged, inadequate state. The Court held theplaintiffs had been unable to prove:10 that any such further damage made a material difference to the structuralintegrity of the foundations as a whole, or that the work required to remedythat damage was any different than what would have been required to remedyall the problems.[21] In He v Earthquake Commission, Dunningham J held:11An insurer should not be required to repair or reinstate something to itscondition when new when, observed objectively, there has been no discerniblechange to the value, amenity or utility of the insured property caused by thenatural disaster.[22] In insurance generally, the damage claimed must be more than de minimis. InArrow International Ltd v QBE Insurance (International) Ltd, McKenzie J said:12Each case must be examined on its own facts to determine when an alterationto the physical state has occurred to an extent which is more than de minimisso that the point has been reached where physical damage has happened.[23] Mr Lynn, for Mr Bligh, referred to Blanchard J's judgment for the Court ofAppeal in Bayley v Manukau City Council.13 There, the Court was concerned with thetests under ss 93 and 94 Resource Management Act 1993 (RMA) as to whether theactivity for which consent was sought would have any effect on the environment whichwas more than minor and would adversely affect any person. In discussing thedifferent tests, Blanchard J said the relevant authority must first determine whether theimpact of an adverse effect on the environment was more than minor. If so, that8 Krall v Earthquake Commission, above n 7, at [35].9 Krall v Earthquake Commission, above n 7, at [37].10 Sadat v Tower Insurance Ltd [2017] NZHC 1550 at [255].11 He v Earthquake Commission [2017] NZHC 2136 at [67].12 Arrow International Ltd v QBE Insurance (International) Ltd [2009] 3 NZLR 650 (HC) at [82].13 Bayley v Manukau City Council [1999] 2 NZLR 568.adverse effect could be disregarded only if it was "de minimis". He held that anadverse effect on a person could be disregarded as de minimis only if it is so triflingthat the law should regard it as of no consequence. That was a more stringent test thanwhether the adverse effect is minor.[24] Mr Lynn also submitted that damage should not necessarily be considered deminimis simply because the repairs required to remedy the damage caused by theinsured event (the earthquake) would be no different than what had been required toremedy pre-existing defects. He gave the example of damage which produced anunsightly crack in the middle of the glass in a window, where the frame of the windowwas already infested with borer so that it had already required replacement. Hesimilarly referred to the situation where there was a widening to a pre-existing crackin the floor which did not materially change the structural integrity of the concretefloor such as it was before that additional damage.[25] I accept Mr Lynn's submission to the extent he argued there can be materialdamage even when the costs or work required to repair the damage suffered in theearthquake is no different from what that work or costs would have been before theearthquake. That, however, is a matter to be considered along with other relevant factsin the particular circumstances of the case. In both instances he referred to, therewould have been material damage in terms of the test which is to be applied. With thewindow example, there was a reduction in both the functional and aesthetic value ofthe window. With the example of the widening of a crack on an unpainted concretefloor, there could be a change to the aesthetic value of the floor. Whether the workrequired to remedy the damage would be the same as required to remedy pre-existingproblems, can thus be, as Mr Wood submitted, a measure of whether the de minimisthreshold is met. However, it is not necessarily "the measure".[26] The cases I have referred to and the examples Mr Lynn gave illustrate that, forthere to be cover, the damage must be such that it affects the use or amenity of thebuilding. For elements of the building that have a structural or functional purpose, thedamage has to affect that structural or functional purpose. Similarly, for elements ofthe building that have an aesthetic purpose, for example, wall linings such aswallpaper, the damage must affect that aesthetic purpose.14[27] My conclusion, that the damage has to be such that it affects the use or amenityof the building, parallels the judgment of the Full Court where it found that, with aclaim concerning land, the damage had to affect the use or amenity of the land.15[28] Mr Bligh's claim is that nearly all the damage his building suffered was of astructural nature. His view is that the building requires repairs to restore the building'sstructural integrity, not just to restore the aesthetic value of what was there before theearthquake.[29] I accordingly accept the submission of Mr Wood for EQC that:In summary, the task for the Court is therefore to identify the particularphysical change, alteration or disturbance (if any) that occurred to the structureor materials of Mr Bligh's house (and garage) as the direct result of the 4September 2010 earthquake and how (if at all) any such physical changematerially affected the structural integrity or performance of the house for theworse.[30] There are aspects of the claim that relate to aesthetic and non-structural aspectsof the house and garage although, because of the state the interior of the home was inbefore the earthquake, the aesthetic value of what was there previously was limited.As to those aspects of the house and garage, I must determine whether, having regardto the state of the house and garage before the earthquake, there has been damage thathas materially altered the aesthetic value of what was there before the earthquake.Burden of proof[31] There is no dispute that Mr Bligh has the burden of proving, on the balance ofprobabilities, the facts that are material to his claim. He thus has the burden of provingthere was damage caused by the earthquake and what is required to remedy thatdamage.14 Parkin v Vero Insurance New Zealand Ltd [2015] NZHC 1675 at [20].15 Earthquake Commission v Insurance Council of New Zealand Inc [2014] NZHC 3138, [2015] 3NZLR 381.[32] Because he bears the burden of proof, EQC and IAG do not have to prove thetruth of an alternative case as to what might have caused the damage. Even wherethey do offer an alternative explanation:16It is thus open to the Court to conclude that the cause of the damage, even ona balance of probabilities, remains in doubt.In that situation, the insured will have failed to discharge his burden of proof.17[33] In his opening submissions and citing comments made by the Court of Appealin Jarden, Mr Lynn suggested that, if Mr Bligh established a credible prima facieevidential foundation for his allegations, the burden would effectively shift to thedefendants.[34] I accept, however, that the evidential burden will shift only if there is credibleevidence supporting Mr Bligh's allegations to the extent required to meet the burdenof proof which is on him. Ultimately, whether that burden has been satisfied must beconsidered having regard to all the evidence that has been presented, including theevidence for the defendants. Mr Bligh will fail to have met the burden of proof whichhe has if, when considering all the evidence, I hold he has not proved the particularmaterial allegation on the balance of probabilities.[35] The burden of proof is particularly important in this case. It was suggested toMr Smith in cross-examination that there was various damage he had observed, thecause of which he could not be certain. He acknowledged that was the case. Mr Smithwas somewhat uncertain as to what could have caused the cracking he observed atmortar joints above some windows in the interior and on the exterior of the east wall.He could not exclude the possibility for existing cracks to have widened or extendedas a result of the earthquake, for there to have been cracking to the mortar joints in theeast wall passage, possible lateral movement of a timber lintel in the west window onthe south wall and possible movement of a top row of bricks on the first floor walls.He referred to a possibility that a garage pedestrian door had dropped because of anearthquake.16 Jarden v Lumley General Insurance (NZ) Ltd [2015] NZHC 1427 citing Rhesa Shipping SA vEdmunds [1985] 1 WLR 948.17 Jarden v Lumley General Insurance (NZ) Ltd at [90] – [91].[36] While Mr Smith thus acknowledged that, in certain respects, he could notexclude the possibility of earthquake damage, it was his opinion, based on what hesaid was a careful examination of the damage with due regard to the historicalalterations to the house and other evidence available to him, that there was noearthquake damage. By bringing the claim, Mr Bligh has had the burden of proving,on the balance of probabilities, that the conclusion Mr Smith came to was wrong.[37] It also needs to be said that my assessment of the evidence and my ultimatedecision as to whether Mr Bligh has discharged the onus of proof must be madeindependently and objectively, neither influenced by feelings of sympathy orprejudice. That is particularly significant in this case where Mr Bligh has faced astruggle to bring his claim to court and is seriously ill.18 Some might also think therecould be prejudice against EQC as a state funded insurer, or against IAG as a majorinsurance company who had agreed to insure Mr Bligh's property. Mr Bligh and bothEQC and IAG have, however, put their respective cases before the Court.[38] My duty is to make my decision objectively and independently on the evidencepresented. Thousands of people in Canterbury have resolved claims with EQC andtheir insurers on the basis of what the parties have accepted was earthquake damage.On many occasions, settlement has been achieved without too much difficulty. Onother occasions, reaching agreement has been far from easy. Here, because of all thatremains in dispute, it is for me to decide what has been proved.Assessing credibility[39] In assessing the credibility of witnesses and the utility of expert witnessopinions, I have been assisted by evidence as to the state of the buildings both beforeand after the Darfield earthquake which, in significant ways, is independent of thewitnesses.[40] In 1988 Mr Bligh applied for a building permit for renovations to his home,including replacement of an original wooden beam. With the plans, was a letter from18 Judgment was given for EQC and IAG by Clark J in Bligh v Earthquake Commission [2016]NZHC 2619. The circumstances in which that happened are set out in the judgment of AssociateJudge Matthews setting aside that judgment: Bligh v Earthquake Commission [2017] NZHC 995.Mr Bligh's engineer, Mr Paul Kaye, summarising the nature of the work and why itwas required. Mr Kaye has since died. Mr Kaye's statements as to the deterioratedcondition of the wooden beam are hearsay. Mr Bligh confirmed in evidence that MrKaye has died, making him "unavailable as a witness" for the purposes of the EvidenceAct 2006.19 I consider the circumstances relating to the statements provide reasonableassurance that the statements are reliable and therefore admissible.20[41] Just before the scheduled trial of these proceedings, in October 2016 Mr Blighprovided to EQC/IAG photographs from a family album showing the removal of theoriginal wooden beam and its replacement with a concrete beam. These photographsprovided objective information as to the state of the wooden beam at the time, themethod of reconstruction and the way this might have impacted on the first floor brickwalls.[42] In 1992, Mr Bligh applied for building consent for alterations to the garage.Included in that application were designs for the erection of two steel portal frames tosubstantially strengthen one end of the garage and provide the support for a wide tiltdoor opening. There were also detailed specifications as to the foundations that wereto be built at the foot of each of the portal frame supports.[43] In 2007, an engineer, Mr Grant Wilkinson, was employed by Mr Bligh withrespect to the next stage of proposed renovations. He took a large number ofphotographs of the home (the 2007 photographs).[44] Mr Wilkinson inspected the house on the instructions of assessors for IAG on28 September 2010, and again on the instructions of Mr Bligh on 13 January 2011. Anumber of the photographs he took on both occasions have been produced as evidence.[45] Post-earthquake photographs of relevant parts of the house and the garagetaken by Mr Bligh and other witnesses have also been produced.19 Evidence Act 2006, s 16(2)(a).20 Evidence Act 2006, s 18. The statements were included in formal building plans submitted for abuilding permit by a professional engineer.[46] I have thus been able to assess the evidence of witnesses, regarding both thepre-earthquake state of the house and claimed earthquake damage, against pre andpost-earthquake photographs and records. My task in this regard was assisted by thecomprehensive way in which all counsel directed the various witnesses to the earlierdocumentary information and the photographs. The parties were well served bycounsel, whose familiarity with the evidence and photographic records demonstrateda comprehensive grasp of what was at issue, in all its considerable detail.[47] I have had to make an assessment as to the credibility of certain witnesses,particularly the lay witnesses. The most important of these was Mr Bligh.[48] Mr Bligh's credibility is especially important because he asks the Court toaccept his evidence that the damage he is claiming for became apparent only after theDarfield earthquake and that the earthquake was of such a nature and magnitude thatit was more likely than not to have caused the damage he described.[49] Issues of credibility must involve an assessment of a witness's honesty in theevidence they have given. If a witness has been shown to have been dishonest, theirevidence in respect of a matter where they have been dishonest will be put to one side.Dishonesty may also reduce the weight or value of other evidence the witness hasgiven because it may detract from the reliability of that evidence. Nevertheless, justbecause a witness has been dishonest as to one aspect of his evidence, does not meanthat all his evidence should be regarded as having been given dishonestly.[50] Just as honesty is important, so too is reliability, because an honest witness cannevertheless be mistaken. That is particularly material in this case.Mr Bligh[51] Mr Smith said that, in his experience, it is common for people who are livingin a house not to be aware of or concerned about what, from a living point of view,might have been to them inconsequential defects in a home prior to an earthquake.That accords with common human experience. I also accept that, after an earthquake,whether they continue to live in their home or not, people may not have had theopportunity, time, inclination or expertise to identify, in all its detail, damage whichmay have resulted from the earthquake.[52] It is for that reason I exercise some caution in weighing in the balance whetherMr Bligh referred to particular damage when his home was inspected for damageeither by people acting on his behalf or for IAG or EQC at different times. Mr Blighhas however discussed the damage with various experts and others he engaged as theseproceedings have progressed. In both his evidence before me and in hiscorrespondence and communication with others over the years he has pursued hisclaim, he has demonstrated an intense awareness of the detail of what he claims wasearthquake damage, and what others have to say about it. In certain respects, theconsistency of his claims is relevant to an assessment of his credibility.[53] With the delay between the Darfield earthquake and the finalisation of thatevidence, there is the potential for his opinions to be based on reconstruction orsupposition, but not necessarily so. The potential for that is somewhat greater becauseMr Bligh's memory has been affected by his health problems.[54] Mr Bligh's serious ill-health dates back to at least 2006. In June 2011, aneurologist said he was suffering from a moderately severe degree of Parkinson'sdisease and his memory then was "not so good". He suffered a heart attack in 2006.He was diagnosed with serious forms of cancer in 2012 and 2013.[55] Nevertheless, I accept it has been mainly Mr Bligh's short-term memory thathas been affected. Having lived in his home for decades before the earthquake andbeing involved in the reconstruction of various parts of the home, with plans to do alot more, it could be expected that his memory of the general nature of his home beforethe earthquake would be firm and have remained clear. It is in relation to the detailthat there is greater potential for unreliability. That potential must be greater when MrBligh was, for years, tolerant of living in an old house, the interior of which had beensignificantly dismantled and refurbishment had come to a standstill.[56] The demeanour of witnesses in giving their evidence has been of littleimportance, as is often the case. Mr Bligh, because of his Parkinson's disease, speaksvery quietly and there were some instances when what he said was not clear to theCourt transcribers. Although frail, Mr Bligh was firm and steadfast in his opinions.He demonstrated an understanding of the questions that were asked of him and thepotential significance of them. When there was the potential for an inference adverseto him to be drawn from the evidence he had given, he was quick to proffer anexplanation to counter that. He rarely demonstrated the intense anger and frustrationthat was evident in his exchanges from time to time, over a number of years, with EQCstaff, included as they were in the bundle of documents before the Court. He wasrespectful to the Court and to counsel.[57] So, my assessment as to Mr Bligh's credibility must be made with a carefulconsideration of what he said in evidence as against all the evidence that has beenpresented to me.[58] Mr Wood for EQC did seek, somewhat tentatively, to put before Mr Blighfindings made by a Judge in 1981 that he had made dishonest statements when he wasinvestigated for a potential theft and when giving evidence on the matter.21 I allowedthe cross-examination provisionally. The conclusions I have reached as to Mr Bligh'scredibility are however based squarely on what he has said as to his present claim,both as it progressed and in his evidence before me. That being the case and givenhow long ago Mr Bligh was involved in the case referred to, I determined evidence asto that case not to be substantially helpful in assessing Mr Bligh's credibility. I thusdisregard it as inadmissible.22[59] Mr Smith identified damage to the first floor brick walls after the earthquake.He attributed the likely cause of that damage as being a drop in the first floorbrickwork, either as a result of rot in the wooden beam that had separated the twofloors before the installation of the concrete bond beam, damage to the brickwork withthe installation of that concrete bond beam, or through the removal of exterior plasterin the 1980s.21 Bligh v Police CA104/81, 16 September 1981.22 Evidence Act 2006, s 37.[60] Given the significance of the wooden beams as a potential explanation for thedamage that was observed after the earthquake, Mr Bligh's evidence as to the state ofthe wooden beam before the installation of the concrete beams was of importance.[61] Mr Smith explained that, if the wood had been rotten, the deterioration in thewood was likely to be more marked on the exterior side of the wood where it wasexposed to the elements. He said, if this had been the state of the wood, the outer sideof bricks would have likely sunk relative to the inner wall of bricks. He said thedropping of bricks in this way would logically explain the vertical cracks that appearedin parts of the exterior brickwork. It also explained why, at the point of one of thosecracks, the exterior wall had sunk vertically in relation to a steel dowel that protrudedto the exterior from the inner wall of bricks.[62] In giving oral evidence further to his brief, Mr Kearney was askedhypothetically what could have been the result of the timber rotting or decaying. Hesaid the beam had been placed there to provide support for the brick wall. If the timberhad deteriorated, it would have crushed/compressed and it would have been quitepossible for the brickwork, either both layers or one layer, to vertically settle.[63] Mr Kearney also accepted that, if the timber beam had deteriorated and causeddifferential settlements, that could have caused cracking in the plaster before theearthquakes.[64] In his evidence as briefed, Mr Bligh said he was able to observe the conditionof the original wooden bond beam before it was replaced. He said it had borer damagein some places but was not decayed. He said he had not observed any pre-existingdamage to the walls before the beam was replaced. Mr Bligh rejected Mr Smith'sopinion that the timber had deteriorated and had been defective. He sought to justifyhis answer, not by relying on his observation as to what he had seen of the timber beambefore the earthquake, but by interpreting photographs showing parts of the beam atthe time it was replaced. Mr Bligh said that he could see by the photographs that thebuilders had been using chisels and chainsaws to remove the wood. He said that, hadit been rotten, they would have simply pulled it out with their hands.[65] Mr Bligh's evidence as to the wood not having been rotten was significantbecause of its potential to have undermined Mr Smith's opinion that the cracks in thebrick wall he observed after the earthquake had existed prior to the earthquake andhad likely been caused by deterioration in the wood beam. It was also importantbecause the expert engineer called to give evidence for Mr Bligh, Mr Kearney, rejectedMr Smith's opinion that the brickwork could have moved due to deterioration of thetimber support. Mr Kearney said he had reviewed photos and said the timber did notappear to be overly deteriorated. He said the timber he observed from the photoslooked like it was able to provide support.[66] Mr Kearney enlarged on this by commenting on photographs taken of the beamat the time it was replaced. He said:The existing timber beam was difficult to move and required a great deal ofchiselling out. The photos do not show a deteriorated rotted timber but rathera dry timber that has not rotted or deteriorated in any significant fashion. Thistimber cannot be said to have rotted, compressed and caused the replacementseen in the cladding brickwork.[67] Mr Kearney accepted that the main reason he disagreed with Mr Smith'sexplanation was that he did not accept the timber had deteriorated. He said this wasbased on his interpretation of the photographs but also the descriptions from the owneras to how difficult it was to chisel the wood out, including through the use of achainsaw. He did not accept that the photographs showed deteriorated timber as MrSmith said they did.[68] Mr Kearney and Mr Bligh were then confronted with the information that MrBligh's previous engineer, Mr Kaye, had sent to the Malvern County Council in 1988when seeking approval for the strengthening, alterations and renovations of Mr Bligh'shouse. On the plans, the engineer wrote "the exterior walls are tied to membranes,new concrete band is to replace timber (rotten) band". Mr Kearney also accepted that,in a letter to the City Council dated 30 March 1988, Mr Kaye had indicated thereplacement of the timber beam with concrete would improve the structural integrityof the building and had recorded the proposed alterations would involve the removalof "rotten timber" at first floor level.[69] Mr Kearney accepted that seeing this did cause him to alter his opinion aboutwhether the timber beam had deteriorated by 1988.[70] EQC had the claim assessed by an engineer, Mr Robinson, who inspected theproperty on 12 January 2011.[71] Mr Bligh did not deny telling EQC's reviewing engineer, Mr Robinson, inJanuary 2011 that "the concrete band replaced rotten timber beams that originally ranaround the perimeter at first floor joist level". This was as recorded by Mr Robinsonat the time.[72] Despite all of this, before me, Mr Bligh still would not accept the beam hadbeen rotten. In sticking to his opinion, he relied not on observations he had made buton the supposition that, if the beam was rotten, then the floor joists would be rotten aswell because they were a much softer wood than the Australian hardwood beam.When Mr Bligh was directly confronted with Mr Kaye's statement that the concreteband was to replace rotten timber, Mr Bligh said that Mr Kaye might have thought theband was rotten but would not have known for sure because he was not able to checkas it was encased in plaster. He asserted that Mr Kaye's description was a guess basedon the age of the house.[73] All of this illustrates how, on a fundamentally important issue, Mr Bligh'sevidence as to the state of a particular and important part of the building pre-earthquake was, at best, unreliable. Mr Bligh was unwilling to accept what I find wasthe reality of the situation and instead resorted to adopting a contrived explanation tosuit his case.[74] Following a first detailed inspection of the property on 23 December 2010 anda further inspection after proceedings had issued on 26 November 2014, Mr Smith'sopinion was that the cracking he observed in the brickwork could not be attributed tothe Darfield earthquake. At the time he formed that opinion, he knew the brickworkhad been constructed over timber directly on top of the unreinforced concrete wallsbelow.[75] Mr Smith's initial view, that it was likely the timber beam had significantlydeteriorated so as to require its removal and replacement with a concrete band, waslater confirmed by the plans of the engineer, Mr Kaye, to the Council at the time thework was to be done. It was also confirmed by photographs.[76] In a minute of 29 October 2013, Wylie J made directions for tailored discovery,specifically referring to the need to provide pre-earthquake photographs of Mr Bligh'shouse and documents such as building plans and correspondence with the localauthority in relation to the house. Mr Bligh's affidavit of documents of 10 February2014 disclosed only Mr Wilkinson's pre and post-earthquake photographs. Therelevant photographs showing the timber beam being replaced were not provided untilOctober 2016. When asked for an explanation for the late disclosure, Mr Bligh's thenlawyers, by memorandum, said Mr Bligh had received the photographs electronicallyfrom relatives in Ireland about two weeks earlier.[77] Under cross-examination, Mr Bligh accepted that what his counsel had saidmust have recorded what he had told his previous lawyers. It was established, throughcross-examination, that Mr Bligh must have had the photographs at least by March2016 because one of the photographs had been reproduced in a report from MrJohnstone prepared in March 2016. Mr Johnstone was associated with CanterburyEarthquake Services/Claims Resolution Services and was assisting with Mr Bligh'sclaim. Mr Bligh accepted under cross-examination that he thus must have had thephotographs earlier than he had told his previous lawyers. He explained this by sayingthat perhaps he had forgotten about them and then rediscovered them.[78] What happened in this regard was unsatisfactory and does reflect negativelyon Mr Bligh's reliability as a witness. What happened over discovery does nothowever establish that Mr Bligh deliberately concealed these photographs. MrJohnstone prepared a brief of evidence for the trial of these proceedings that wasscheduled to begin on 31 October 2016. Mr Johnstone and Canterbury EarthquakeServices were closely associated with Mr Shand, the lawyer who was then acting forMr Bligh. Mr Bligh could have reasonably assumed that the photographs he madeavailable to Mr Johnstone would come to the notice of his solicitor and thus the otherparties.[79] For the reasons explained by Mr Smith and from my own observation of thephotographs, I accept that they show there had been a significant decay within thetimber beam. That is also consistent with Mr Kaye's description of the beam as"rotten".[80] The photographs significantly affect the assessment I make as to the generalcredibility of Mr Bligh and the weight to be given to the opinions of Mr Kearney.[81] Under cross-examination, Mr Bligh was reminded of what the engineer, MrWilkinson, had said after he had inspected the house on 28 September 2010. MrWilkinson had recorded in a report "the dwelling performed remarkably wellconsidering the size and close proximity of the magnitude 7.1 Darfield earthquake"and said "from a safety perspective the dwelling is likely to have about the sameseismic strength as its strength before the earthquakes".[82] Mr Bligh was referred to Mr Smith's report of December 2010 following hisinspection of 23 December 2010. Mr Smith had said "a close inspection of thecracking which was present in these walls, failed to identify any cracking which didn'tpre-exist the earthquake". He also said in his report that the structure of the buildinghad been detrimentally affected by the alterations. Mr Smith was satisfied the Darfieldearthquake had not affected the safety of the building for occupancy.[83] Confronted with the fact two engineers had expressed an opinion that theearthquake had not affected the structural strength of the building, Mr Bligh was firstasked whether he accepted that had been the opinion of the two engineers. He haddifficulty answering that precise question but said he did not accept the correctness oftheir opinion. His reason, as he put it, was "I don't believe it, it was the magnitude ofthe earthquake, it's impossible for there not to be some damage." In that context, hereferred to seeing a model on YouTube of how a brick house, which he considered waslike his, would vibrate during an earthquake, all the bricks coming apart and then goingback together.[84] After this exchange, he was confronted with the opinion of the further EQCengineer, Mr Robinson, in his report of 24 January 2011. Specifically, Mr Robinson'sconclusion was put to Mr Bligh:I concur fully with Peter Smith's opinion that the building is structurallyundamaged as a result of the Darfield earthquake and is no less safe to occupythan prior to the earthquake although the building safety has been affected bythe removal of the ground floor walls and support to the first floor.[85] At this point, Mr Bligh became agitated. His response to this was:Of course he would because it [sic] seven and a half years now and he is stilltrying to get out of the claim, spend millions of dollars on lawyers, the EQCand insurance company, there's thousands of people out there suffering,suffering like no one knows, people committing suicide because of what youdo.[86] It is of significance to me that, confronted with these opinions, at several pointsin his evidence Mr Bligh had an explanation for rejecting the engineers' opinions but,at those points, that rejection was based not on what he had seen or observed of theactual damage but on a belief. It is because of the intensity of that belief that there isa greater potential for his assertions as to whether damage was caused by theearthquake to have been based on supposition rather than an accurate memory of whathe had observed before the earthquake and what he observed afterwards.[87] As will be apparent in my subsequent consideration of Mr Bligh's claims andas to particular damage, there have been clear instances where he has not demonstratedthe consistency I would have expected from a reliable and credible witness. Forinstance, I refer to his claim in respect of damage to the walls of the cellar in the annexeand his claims in respect of damage to the garage roof.[88] There have been numerous instances where he has made firm assertions eitherabout alleged earthquake damage or the state of his home before the earthquake and ithas been clearly established that what he was saying was not true. In this regard, Irefer to his evidence as to whether before the earthquake there could have been aquadrant on top of a skirting board in one of the upstairs bedrooms obscuring a pre-existing gap between the skirting board and the wall, his evidence that the crack on apath on the western side of the house was caused by the earthquake, and his firmevidence that there was no cracking of the concrete floor of the house before theearthquake.[89] As to each of the matters I have just discussed, Mr Bligh's credibility as awitness has been severely dented. There are other instances, which I will refer to,where his assertions as to damage having been caused by the earthquake has beenundermined by the evidence of other witnesses or conclusions I have drawn from thephotographic evidence presented to me and discussed by the various witnesses. It isfor that reason that Mr Bligh has not been able to prove his case to the requiredstandard simply on the basis that he says the damage he claims for only appeared afterthe earthquake and therefore must have been caused by the earthquake.Mr Jerome Larason[90] The evidence for Mr Bligh from his witnesses, Mr Larason and Mr Peter deBoer, was of little assistance to his case.[91] Mr Larason said he is a friend of Mr Bligh. His primary contact with him wasin picking him up and dropping him off before Freemasons meetings in Oxford. Heshared with Mr Bligh an interest in restoring historic brick homes. He recalled aparticular visit in the late 1990s when he had gone into the main living area of thehouse, had been seated on a couch opposite a log burner and had looked at Frenchdoors which Mr Bligh had recently installed. His evidence was that the work aroundthe window had been done to a high standard. He also said he was particularlyimpressed with the bond beam strengthening work at the top of the wall and "howvisually pristine the old concrete was at that time". He described the building as being"in fine shape" when he first saw it.[92] Mr Larason said he was shocked by what he described as "the heavily crackedconcrete floor" after the earthquake. He suggested Mr Smith's opinion as to crackingof the first floor brickwork pre-dating the earthquakes was inconsistent with what hesaw of how "sound, tight, and free of noticeable cracking" window arches on the northand south facing walls of the house were when he saw the house before the earthquake.[93] I do not consider Mr Larason's observations of the house were made with thesort of attention to detail to justify his opinions being given much weight. Hisobservations of the work around the replacement French doors appeared to have beenbased on the view he had from the couch and not from any close-up scrutiny. Althoughhe had commented on the state of the concrete associated with the new beam, whenasked to look at some close-up photographs of certain areas associated with the beam,he was unable to identify what the photographs were of.[94] Apart from the one occasion when Mr Larason said he had sat on the couch inthe living area, it appeared that, in picking up and dropping off Mr Bligh, he hadsimply driven to the property and walked to the house. If he had entered the house onsuch occasions, it was only briefly. He had not noticed a crack above one of thewindow archways which Mr Bligh accepted was there before the earthquake.Although he said he had not observed any cracks on the living area floor when he hadbeen there, the state of the floor was not a matter of particular interest to him. Hecommented that, at the time of the visit, there was more furniture in the room thanthere was later, when Mr Bligh's partner was no longer living there.[95] Even if Mr Larason's impression of the building overall was that it was tidywith no obvious problems, that was inconsistent with the state of the building whenMr Wilkinson took the 2007 photographs.[96] Mr Larason's evidence thus did not assist Mr Bligh in proving what the generalcondition of the house was before the first major Canterbury earthquake in September2010 or what the structural integrity of the house, particularly the first floor brickwalls, was before that earthquake.Mr Peter de Boer[97] Mr de Boer said he had been a friend of Mr Bligh for approximately 11 yearsand, since 2010, had maintained regular contact and visited the property. He said hehad visited the house before and after the earthquake but described those visits as beingof a social nature. He said he had visited the property on "several occasions" beforethe earthquakes. He said the building had been in a "state of renovation". The onlyfeature of the building which he commented on with any specificity was cracking tothe floor. He said he had not seen that before the earthquake and thought he wouldhave if it had been there.[98] Mr de Boer gave evidence as to the way Mr Bligh spoke of what he wanted toachieve with the building and his pride in what he was doing, but that has to be of littlerelevance to me in determining just what the state of the building was before theSeptember 2010 earthquake.[99] Mr Kearney and Mr Smith agreed that the cracks radiating out from wherethere had been a fireplace were shrinkage type cracks. They would have been apparentsoon after the concrete slab was formed in the late 1980s or early 1990s. It is thusclear that at least some of the cracking was there well before the 2010 earthquake. Itis not necessarily cracking that someone would be expected to have noticed on a socialvisit.Ms Dawn Clark[100] Mr Bligh's close friend and former partner, Ms Clark, was also called as awitness for him. She had been asleep in an upstairs bedroom of the house in the earlyhours of the morning when the earthquake occurred. She described how frighteningthe earthquake was. She was aware plaster had fallen from the ceiling onto the bed.The pair went outside and sheltering in a car for the early hours of the morning afterthe earthquake, then went to check a house that Ms Clark owned at Glentunnel. Theyreturned to Mr Bligh's property later that day.[101] Mr Bligh ended up staying at Ms Clark's property from September 2010 untilearly 2014. Ms Clark had visited Mr Bligh's property from time to time since theearthquake but had never gone upstairs again because she felt unsafe there. She saidthat, when she returned to the property on the day of the earthquake, she wastraumatised.[102] She had never made a close inspection of Mr Bligh's home to see what damageit had suffered as a result of the earthquake. She did, however, identify two specificitems of damage which she noticed after the earthquake. The first was what she saidwas a gap between the side of the window frame upstairs and the wall lining. She washowever clear that she had never looked at that specific area before the earthquake andthus could not say whether there had been a gap in that area before the earthquake.[103] Ms Clark also said that, after the earthquake, she noticed for the first time thecracking on the ground floor slab. The cracking she referred to included both thelongitudinal cracks and the cracks spreading out from the concrete base where thefireplace had been. I accept that Ms Clark could not recall seeing any cracks on theground floor slab before the earthquake but this has to be of little weight to me indetermining whether such cracks were there before the earthquake.[104] Given the evidence of the engineers, at least some of the cracks would havebeen apparent within a year or two after the slab was laid in the early 1990s. With thechanges that had occurred in the downstairs area and the larger quantity of furniturein the room at the time, that hair-line cracking would not have been of significance toMs Clark as a visitor to the home. At least some of the longitudinal cracking in thekitchen area would have been hidden by vinyl floor coverings remaining as late as2007. The coverings are apparent in photographs taken by Mr Wilkinson.[105] Ms Clark's evidence thus does not assist Mr Bligh in proving there wasstructural damage to his home in the earthquake but her evidence as to plaster fallingfrom the ceiling onto the bed was consistent with what had been some plaster fill fromcracks in the tongue and groove above the bed being displaced as a result of theearthquake.Mr Peter Smith and Mr Mark Kearney[106] Of crucial importance in this case is the evidence given by the parties'structural engineering expert witnesses, Mr Kearney for Mr Bligh and Mr Smith forEQC and IAG. Both are experienced civil engineers who have had extensiveinvolvement in assessing damage caused to buildings by the Canterbury earthquakesand the repair strategies required to deal with such damage. Both presented theirevidence in a balanced way, appropriate for experts whose role is to assist the Court.However, I give greater weight to the opinions expressed by Mr Smith.[107] Mr Smith was eminently qualified to assist the Court with the expert evidencehe gave. He has had nearly 50 years' experience as a structural engineer withexperience over decades of carrying out earthquake damage assessment of domesticbuildings for EQC. His expertise is obviously recognised by his peers. He gave expertstructural engineering advice to the Canterbury Earthquakes Royal Commission.When he gave evidence, he was then President of the New Zealand Society forEarthquake Engineering Incorporated. He had worked with MBIE and other technicalgroups on the securing of unreinforced masonry facades.[108] Through cross-examination, it was suggested that, because of his extensiveassociation with EQC in giving expert evidence, Mr Smith might have a bias towardsdiscounting damage as earthquake damage. I do not accept that his independence asan expert would be compromised on that basis. I can take judicial notice of the factthat, on many occasions, EQC has been engaged in litigation where they haveultimately accepted liability for damage that has been the subject of dispute.Importantly however, I am satisfied that, when Mr Smith was first assigned to inspectMr Bligh's property, he approached his task with an open mind and carried out athorough and detailed inspection. He was balanced, measured and careful in theopinions he expressed. An illustration of this was his acknowledgement that he couldnot discount the possibility that the Darfield earthquake had caused some of thedamage in the particular ways put to him by Mr Lynn. Those opinions were alsothoroughly tested by counsel against the photographs that showed the actual damagehe was commenting on in ways that enabled me to assess the weight I should give tohis opinions. His opinions were of real assistance to me.[109] Mr Smith had a significant advantage in assessing the nature of the damage inthat he first inspected the property on 23 December 2010 and was able to examine theoutside of it. That examination included climbing up a ladder and examining cracksto the brickwork with a magnifying glass. He was thus better able to assess the age ofthose cracks, relative to the Darfield earthquake, than Mr Kearney was. It was the sortof examination which Mr Wilkinson had, in his reports, indicated would be necessarybut which Mr Wilkinson himself did not make.[110] Mr Smith carried out further detailed examinations on 29 January 2014, 26November 2014 and 23 November 2017.[111] On 29 January 2014, Mr Smith inspected the house and garage. Mr Bligh andtwo representatives from the litigation funder, Canterbury Earthquake Services,Messrs Johnstone and Betts, were present, as was a quantity surveyor, Günther Hanne,appointed by EQC. On 26 November 2014, Mr Smith inspected the property with anengineer, Mr Pavol Csiba, acting as an expert for Mr Bligh in the proceedings thatwere then before the Court. These inspections were for the purpose of the expertsproducing a joint report for the Court, which they completed on 22 October 2015,highlighting areas of agreement and disagreement.[112] In making his inspection at that time, Mr Smith must have had his attentiondrawn to those features of the damage which both engineers then consideredsignificant and features of that damage which might have been consistent with eitherpre-earthquake or earthquake damage. Mr Kearney was not involved in that process.[113] Mr Kearney inspected the property on 31 October 2016, the morning of thefirst scheduled trial of these proceedings. Employees of his firm had previouslyphotographed and inspected the property on 5 October 2016. There remainsuncertainty as to whether Mr Kearney was at the property at all on that occasion. Inhis brief of evidence served on 14 October 2016, prepared for the first scheduled trial,he summarised what he said was "the damage caused by the Canterbury earthquakesequence that I could observe, or discern from other reports, or as advised by theowner".[114] In his evidence, Mr Smith said the opinions he was expressing were based onhis inspections, reports he had referred to and other specified material. He indicatedthat the material he had considered did not include what he had been told about thedamage by Mr Bligh.[115] In his evidence for this trial, Mr Kearney said the conclusion he had reachedas to the damage caused by the Canterbury earthquake sequence was based in part onwhat he had been "advised by the owner". In all the circumstances of this case andthe findings I have made about Mr Bligh's credibility, to the extent Mr Kearney reliedon or was influenced by Mr Bligh's beliefs, the foundation for Mr Kearney's opinionswas questionable.[116] The way in which this has affected the weight to be given to the engineers'opinions is illustrated through the way I have had to consider their opinions as towhether decay in the wooden beam around the building could have caused damage tothe first story brickwork. Mr Kearney accepted, in cross-examination, that his viewas to the extent of the deterioration had been influenced to some extent by what MrBligh had told him about the state of the wooden beam.[117] I find that Mr Kearney allowed Mr Bligh's views to inappropriately influencethe ultimate opinion he came to on this issue but also the way he interpreted thephotographs showing the state of parts of the wooden beam when it was replaced. Ihave examined the photographs myself and considered Mr Smith's interpretation ofthose photographs. I do not accept that Mr Kearney was justified in minimising thepotential for pre-existing damage to the brickwork to have resulted from thedeterioration of the beam on the basis the photographs, provided by the home ownerof the concrete beam installation, showed "the removed timber did not appear to beoverly deteriorated".[118] I find Mr Kearney was wrong in the assessment he made of particular recordeddamage in certain instances. Because of that, I find myself having to be much morecautious in accepting his opinions overall than is the case with Mr Smith's evidence.[119] Mr Kearney referred to the dislodgement/displacement of bricks as beingdamage which could not have arisen just as a result of long-term static settlement. Insummarising the damage that he considered had been caused by the Canterburyearthquakes, he referred to the horizontal displacement of an external brick at thenorth-western corner. This conclusion was based on a misleading interpretation of aphotograph which had been shown to him by Mr Bligh. Under cross-examination, MrKearney acknowledged that, in reaching his view as to the dislodgement of the brick,he had relied on what he had been told by Mr Bligh. He could not say from anythinghe had observed that the dislodgement was caused by an earthquake or earthquakes.[120] Mr Smith explained that the photograph of the particular brick, which MrKearney relied on as evidence of the earthquake damage, showed that the brick was ina different position than it had been when Mr Smith took the photograph of it inDecember 2010. Mr Smith's photograph from 23 December 2010 showed the brickto have been in the same position as was portrayed in the 2007 photographs.[121] Mr Kearney also said in his brief of evidence that his conclusion, that thespecific damage to the property and exacerbated historic damage was more likely thannot to have resulted from the Canterbury earthquake sequence, was based in part onthe proximity of the building to the earthquake(s).[122] The level of peak ground acceleration (PGA) in an earthquake is a factorindicating how much damage could be expected to have been caused by an earthquake.Generally, the higher the PGA in a given location, the more damage might be expectedto the buildings in that area. The geotechnical engineer, Mr Gordon Ashby, cautionedthat PGA is not determinative and other variables, such as topography, the soil profileand the structure of the building itself, would also influence the extent of resultingland or building damage. Using one of the two commonly accepted methods formeasuring PGA, the acceleration at Mr Bligh's property on 4 September 2010 reached0.19 g. By comparison, the 22 February 2011 earthquake recorded PGA/h values of1.2 g and 0.38 g at the Heathcote Valley and Christchurch Hospital.[123] Mr Ashby also referred to the modified Mercalli intensity (MM) as a widelyaccepted measure of the felt intensity of an earthquake. Again, he explained theapplication of the scale has its limitations. Nevertheless, on a scale of one to twelve,with one being at the low end of intensity, he calculated the level of felt intensity inWaddington for the Darfield earthquake as being between six and seven. He said thiswas consistent with the likely PGA for Mr Bligh's property and the calculated likelylevel of shaking on the MM scale which suggested that well-constructed buildingscould be expected to have only modest damage.[124] Application of both the MM and PGA scales showed that Mr Bligh's propertywas away from the area most intensely affected by the Darfield earthquake. Where itwas most intense, the effects on the MM scale would have been between 8.0 and 8.9.[125] There was no expert evidence that the earthquake sequence, and particularlythe Darfield earthquake (which was the earthquake most likely to have had an impact),had to have caused any of the damage observed simply because of the location of thatearthquake or its force.[126] Whether damage would have been caused to Mr Bligh's buildings by theearthquakes, particularly the Darfield earthquake, would have depended to asignificant extent on the nature of the buildings.[127] Mr Bligh's home had solid concrete ground floor walls. It was not suggestedby any of the experts that those walls suffered significant structural damage in theearthquakes.[128] The concrete ground floor slab was constructed according to engineeringdesigns approved by the Malvern District Council. The slab was to be generally 100mm thick. Next to the perimeter foundations and at regular intervals across the floor,the concrete was deeper with additional reinforcing. The concrete slab and thoseconcrete beams thus braced the perimeter foundations.[129] There was agreement that the concrete beams were well designed withsignificant reinforcing and installed to a high standard. I accept there was no structuraldamage to them in the earthquakes. In several places, there was a short horizontalcrack apparent after the earthquake. Both Mr Clark and Mr Smith were certain thatthese horizontal cracks were what they described as cold cracks of the sort that cantypically occur through the way the concrete is poured. There was no suggestion fromMr Kearney that those cracks would have affected the structural strength of the beams.[130] Mr Kearney also agreed there had been no change in the area where there washorizontal cracking in the concrete beam apparent in the photographs of that area takenby Mr Wilkinson before and after the earthquake.[131] On all sides of the house, there were, at close and regular intervals, concreteupstands in the beam extending vertically into the brick walls above to a level of threebricks. The beam thus provided support for the bricks vertically and, with thoseupstands, also provided support laterally. With the concrete beam in place and withthere being no vertical cracks in that beam as a result of the earthquake, it was notpossible for either of the double brick walls above to drop as a consequence of theearthquake. It was also not possible for the outer side of bricks to drop relative to theinner plane, as had been possible with the rotting of the timber beam and the temporaryloss of support for bricks during the reconstruction process. The brick walls above thebeam had always been interlocked at the corners. The walls supported the roof but itwas of light construction with steel trim deck roofing.[132] As Mr Clark pointed out, and as shown by photographs, there was nodisruption to the connection between the southern wall of the house and the annexe.The annexe was generally of light-weight construction. It was effectively a lean-to.The fact there was no disruption to the connection between the southern wall and theannexe, is further evidence as to just how stable and solid the main house structurewas during the Darfield earthquake, and subsequent earthquakes.[133] The support provided by the concrete beam and the new concrete floor readilyexplains why there might well not have been any further material damage to thebrickwork as a result of the earthquakes, consistent with Mr Smith's observations on23 December 2010 and later.[134] Mr Smith pointed out that it is possible for brick masonry buildings to be totallyundamaged in a significant earthquake. That had happened subsequently in theKaikoura earthquake and in Wellington where almost all the unreinforced masonrybuildings were subjected to severe shaking but where there had been few areas ofdamage in those buildings.[135] In his second brief for the rescheduled trial, Mr Kearney described damage tothe bricks more generally, referring to "cracking, some fell out, and some are loose,and some can be pulled out by hand". He said this was all indication ofmovement/shaking to the wall, and the only external force that can be considered tohave acted on the wall brickwork is the earthquake(s). He noted, however, that anymovement in unreinforced brickwork will compromise its structural integrity. I do notconsider Mr Kearney was justified in saying that the only external force that couldhave acted on the wall brickwork was from the earthquakes, given the brick walls hadto be supported by the timber beam and there was significant evidence that at leastsome of that support was lost with deterioration of the beam and with the process ofreconstruction.[136] Mr Kearney suggested the cracking in the south-east corner of the garage couldhave occurred because there was another slab under the garage that might have actedas a lever on the newer slab. Mr Smith had seen no evidence of an underlying slaband there was no photograph showing such a slab.[137] Mr Smith's evidence as to the damage he observed and commented on wasextensive, meticulously detailed and supported by photographic evidence consistentwith his observations. Mr Kearney's investigation was, in my assessment, not asdetailed or as thorough as Mr Smith's.[138] Ultimately, I afford greater weight to the opinions expressed by Mr Smithbecause I was able to assess the validity of those opinions against what was apparentas to the physical state of the building and the features each expert referred to. Withthe careful assistance of all counsel, each engineer discussed the particular damagethat had been observed with reference to photographs of that damage. I had the benefitof contextualising this evidence with a site visit. Generally, Mr Smith's opinion as tohow observable damage had probably been caused was more consistent with thephysical damage as recorded than was Mr Kearney's evidence.Mr Malcolm Clark[139] Mr Clark has been employed by EQC since September 2010. He has held avariety of roles identifying earthquake damage and advising on repair strategies. Hewas initially appointed as an estimator but has had a number of promotions until, inSeptember 2015, he was promoted to technical manager, managing and mentoring ateam of five but more recently four technical advisers.[140] He completed an apprenticeship in carpentry and joinery in 1981 and obtainedan advanced trade certificate in 2008. His employment with EQC did not disqualifyhim from giving evidence as an expert.23 A witness with a financial interest inearthquake litigation through litigation funding arrangements is not disqualified fromgiving evidence as an expert.24 I accept that Mr Clark's involvement as a technicaladviser to EQC did not inherently mean that he would be biased against findingclaimed damage resulted from the earthquake. It is a matter of public record that EQC,either without litigation before the Courts or after proceedings have been issued, hasaccepted liability for damage to the extent of the "cap". Ultimately, my acceptance ofMr Clark's evidence as an expert is based on my acceptance that his opinions havebeen based squarely on what he observed, his knowledge of construction methods andbuilding materials, and how they might perform in different situations to explain whathe observed of the damage described in his evidence.[141] Mr Clark was assigned the task of inspecting the property after a complaintwas made because it was considered his experience qualified him to do the inspection,particularly his experience in dealing with historic buildings in the United Kingdom.[142] What Mr Clark observed and the opinions he expressed could be understoodand checked as a matter of logic and as against the photographic record of what heobserved. His particular expertise was helpful to me in determining the issues I hadto deal with.[143] Mr Clark's evidence is important because he inspected Mr Bligh's house andgarage internally on 8 December 2010. Mr Smith inspected just the exterior of thehouse on 23 December 2010. Because Mr Bligh was not present, Mr Smith was unableto inspect the inside of the house or garage at that time.[144] Mr Bligh was present during Mr Clark's first visit on 8 December 2010. MrClark was aware EQC had first inspected the property on 5 October 2010 and anoriginal EQC scope of works and statement of claim appeared to acknowledge damageas a result of the earthquake event. At the time of the inspection, Mr Clark noted he23 C & S Kelly Properties Ltd v Earthquake Commission and Southern Response EarthquakeServices [2015] NZHC 1690 at [146]; Geddes v New Zealand Dairy Board HC WellingtonCP52/97, 27 August 2003; ANZ National Bank Limited v Commission of Inland Revenue (2005)18 PRNZ 114 (HC) at [23];24 Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA 67 at [99].found no damage that resulted from the earthquake although he considered thedwelling had extensive superficial cracking mainly of an aged type. He noted thedwelling was an ongoing "work in progress", the lower story being totally "open plan"with the removal of all internal walls. He noted the upper level floor was propped bya number of mismatched timber supports, causing the upper level floor to sag andmove as they walked over it. He was taken to the large garage that Mr Bligh claimedhad suffered earthquake damage. He noted his observations as to the cracks there.[145] Mr Clark inspected the property again in August 2016 after Mr Bligh hadserved his evidence for the original hearing scheduled for October 2016. He inspectedthe buildings again in November 2017 in preparing his evidence for the 2018 hearing.[146] As an illustration of how Mr Clark's carpentry expertise was of assistance tome, I refer to his evidence about apparent damage on front door mouldings. As partof his renovations, Mr Bligh had installed an impressive and elaborate front door tohis house. It is apparent in the photograph which is at the beginning of this judgment.It sits between two new concrete columns with new concrete infill between the top ofthe door frame and the concrete beam. There are window panels on either side of thedoor and above it, framed by painted wooden mouldings. Mr Bligh claimed inevidence there was cracking at mitre joints in the mouldings on the door in severalplaces. The cracking is evident in close-up photographs of the door that Mr Bligh tookin November 2017.[147] Mr Clark was of the opinion there was no cracking elsewhere on the frameworkin the panels next to or above the door. He would have expected to see further crackingif the cracking on the door joinery was earthquake related.[148] Mr Clark elaborated on this further when giving evidence. He pointed out that,near these areas, there were hard surfaces which rain could bounce upwards from,putting further moisture on the door. He also said that, with the orientation of thebuilding, the doors would be getting a lot of sun throughout the year which was morelikely to cause the change in paint structure at the corners. He said there was morepotential here for cracks to appear because the ends of the adjoining wood had notbeen painted, as is normally recommended. He explained that, if there had beenearthquake movement to the door, he would have expected to see evidence of relatedmovement to the side panels because they were rigidly in place and there would notbe the potential for flexing, as can happen with a door, where there is a gap betweenthe door and the doorframe.[149] Mr Clark's explanation was logical, consistent with the photographic evidenceand thus compelling.The claimed damage as particularised[150] I deal now with the various alleged areas of earthquake damage asparticularised by Mr Bligh in his statement of claim and as categorised by Mr Lynn inhis opening submissions.New cracking and exacerbation of existing cracking generally to all brick wallsExacerbation to the vertical cracking on the first floor brickwork wallsHorizontal displacement of external brick at north western cornerDislodgement of brick on south western outer face of the first floorSeparation of the outer bricks from the inner bricks including at the edges of the brickwork around window openings on the external wallsLoosening of window frames with relation to the surrounding brickwork[151] In opening, Mr Lynn said this was the major focus of Mr Bligh's claim.[152] Mr Wood, for EQC, submitted the most significant factual issue in theproceeding was whether the Darfield earthquake structurally damaged the first floorbrick walls.[153] Mr Bligh said there had been some cracking of the brick walls before theearthquake. He said that, on the external walls where the brick had already beenexposed before the earthquakes, he noticed new cracks and existing cracking that hadworsened. Mr Bligh said there was new cracking around windows on the south wall,a pre-existing crack above a window had opened up, and there was new cracking onother walls in the top tier brick layers which he inspected from a ladder. He said joinshad been tight before the earthquake. He said that many of the bricks on the top tier,visible from inside the roof space particularly on the north side of the house, hadcracked and the mortar had come adrift. He said they were not damaged like this whenhe had replaced the roof or the fireplace in the 1980's.[154] It was Mr Kearney's evidence that, to repair this damage to requiredcontemporary standards, the brick walls would have to be strengthened through theapplication of shotcrete to both the internal and external surfaces of the brickwork.The shotcrete is sprayed over reinforcing so as to effectively brace the whole wall onboth sides. The walls would be further strengthened by tying the two planes of brickto each other internally with Helifix ties.[155] It was also contended for Mr Bligh that, if this was necessary to provideadequate structural strength for the brick walls, aesthetically the shotcrete would alsohave to be applied to the ground floor concrete walls so there would be a uniformsurface on both levels of the house.[156] The application of shotcrete would also fix the cracks that Mr Bligh claimedhad occurred as a result of the earthquake, as apparent in the plastered surface abovethe windows on the south wall of the house and on the concrete beam. Application ofthe shotcrete on the internal side of the brick walls might have necessitated cuttingaway part of the first floor around the perimeter so that shotcrete could be applied tothe bricks adjacent to the flooring.[157] Mr Smith was of the opinion that the weaknesses in the brick walls, as apparentfrom the cracks and other damage he observed, indicated there were largely localisedareas of damage. He was of the opinion that those localised areas of damage and anygeneral weakness in the brick walls from the damage he had observed, could beremedied by the raking out and replacement of loose bricks and the installation ofstainless steel helix bars. Mr Smith considered cracking, as apparent in the concretebeam, in other concrete at ground floor level and in the plaster above the windows onthe south side, could be fixed through the application of an epoxy grout.[158] The structural engineer, Mr Wilkinson, was engaged by Mr Bligh in early 2007to provide advice on the completion of Mr Bligh's intended renovations. He alsovisited the property twice after the Darfield earthquake, producing two reports on thedamage and taking further photographs. Mr Wilkinson did not give evidence but hisreports and photographs were relied on by both structural engineers who gaveevidence. All parties accepted that his reports were to be treated as admissibleevidence. The fact he was not called obviously affects the weight I can give to thosereports.[159] Mr Wilkinson was first engaged by assessors for IAG to provide a report forIAG. He inspected Mr Bligh's property on 28 September 2010. He introduced hisreport by saying it was "for the use of the building insurer to help assess the occupancyof the building in the short term and assess the structural damage from the recentearthquakes". He stated that:A brief walk over assessment was undertaken with Ricky Bligh representingthe owner to assess the primary structural seismic suitability of the premisesfor occupancy following the earthquake that occurred on 4 September 2010(and subsequent aftershocks up to the time of the inspection). The inspectionwas visual only for the inside and outside of the building and no drawings ordocuments were reviewed, and no calculations or other analyses were carriedout. Electrical and mechanical equipment, gas connections, water suppliesand sanitary facilities were not inspected, and second elements (partitions,windows, fittings and furnishings) were not considered.[160] In the report, Mr Wilkinson said he was familiar with the house, having advisedthe owner on seismic strengthening options in around 2007. As to damage observed,Mr Wilkinson said:While I haven't checked the extent of cracking damage with the extensivephotographs that I took in 2007, it is my opinion that the relatively extensivecracks in the walls are likely to have widened and lengthened as a result of therecent earthquakes. Some new cracks were clearly evident in the new concreteelements that the owner has constructed.The cracks that I observed were generally in the order of up to 0.5 mm widewhich is to be expected even in modern concrete constructing using currentstandards. Several cracks were wider than 0.5 mm but they tended to be thehistoric cracks that could have widened slightly the recent earthquakes.It was not easy to distinguish between the historic cracking and fresh crackswithout a very close inspection and an attempt made to log the cracks. As tobuilding safety, the dwelling performed remarkably well considering the sizeand close proximity of the M7.1 Darfield earthquake.From a safety perspective, the dwelling is likely to have about the sameseismic strength as its strength before the earthquakes.[161] His comments under recommendations included:Clearly, all the superficial cracks and damage arising from the earthquakes asnoted above will need repair.More time could be spent logging all cracks and specifically identifying thosenew cracks or those that have widened and or lengthened as a result of theearthquakes. The new cracks or wider cracks can be injected with epoxy tostructurally reinstate the original strength of the uncracked concrete.[162] Mr Wilkinson and his company, Ruamoko Solutions, was engaged by Mr Blighto further inspect the property on 13 January 2011. Mr Wilkinson introduced it bysaying it was a follow up report: for the use of the owner and building insurer to help assess the occupancyof the building in the short term and assess the additional structural damagefrom the aftershocks that have occurred since our previous inspection.A brief wall over assessment was undertaken with Ricky Bligh, the owner, on13 January 2011 to assess the primary structural seismic suitability of thepremises for continued occupancy. The inspection was visual only for theinside and outside of the dwelling and the garage/shed and no drawings ordocuments were reviewed, and no calculations or other analyses were carriedout.Comments regarding this building are limited by the nature of the inspection,and are not intended to be used outside the context of this earthquake event,and reinspection may be required following further aftershocks.[163] The report included verbatim comments made earlier as to damage observedto the dwelling. The observations made in the earlier report as to cracks in newconcrete elements, with gaps up to around 0.5 mm wide, was followed with a newparagraph:The inspection on 13 January showed little change to the cracking of the wallsand concrete floor slab, however, it is most likely that the thousands ofaftershocks that have occurred since my inspection will have caused some ofthe cracks to slightly widen and lengthen.[164] Following this was the same comment that more time could be spent loggingall cracks and specifically identifying those new cracks or those that have widenedand/or lengthened as a result of the earthquakes.[165] Mr Wilkinson's report also included comments on the report provided by MrSmith from December 2010 for EQC. Mr Wilkinson agreed that many of the crackshad been painted over but said a close inspection had revealed "very small shards offresh concrete adjacent to the sides of some of the cracks suggesting recent movementat those locations". He agreed with Mr Smith that the Darfield earthquake had notmaterially affected the safety of the building for occupancy. In saying there had beena widening of cracks and new cracks around bolts, he disagreed with Mr Smith'sopinion that there was no new damage to brickwork.[166] In a number of respects, Mr Wilkinson's opinions, as expressed in that report,were consistent with the conclusions reached by Mr Smith. He confirmed there wascracking of the brickwork that preceded the earthquakes. He did not consider, aftereither of his brief inspections, that the seismic strength of the buildings after theearthquakes would have been different to what it had been before. He considered thata very close inspection would be required to distinguish between historic cracking andfresh cracks.[167] The first floor walls are of double unreinforced brick construction, 230 mmthick. Mr Smith observed the presence of wide cracking on the exterior with nocracking on the interior. He indicated that the walls were primarily two independentlayers of brick with poor connectivity between them, as is apparent from the exteriorof the north wall, the east wall and the northern portion of the west wall before theearthquakes.[168] Mr Smith was at an advantage in that he first inspected the house on 23December 2010. Mr Bligh was critical of the fact that this inspection took place whenhe was not present. Mr Smith says he tried but was unable to contact Mr Bligh. MrBligh says Mr Smith did not make any effort to contact him and believed this wasdeliberate. It might have been reassuring to Mr Bligh if he had been there but I acceptthere were good reasons for Mr Smith to take advantage of the opportunity to makethe inspection at that time. I also accept that Mr Smith had tried to contact Mr Blighto tell him of the visit and that it was for Mr Bligh's benefit that the inspection becarried out without delay. Had Mr Smith verified there was significant earthquakedamage, his inspection would have expedited the settlement of Mr Bligh's claim.[169] Mr Smith identified vertical cracks in certain parts of the exterior brickwork.He said such cracks were not typical of earthquake damage where cracking is morelikely to be of a diagonal nature from lateral loading. It was accepted by all witnessesthat the reinforced concrete beam significantly strengthened the building. There wasno evidence of vertical cracking in the concrete beam or any damage to indicate thatit would have failed to support the brick walls above during the earthquake. The beamwas on top of the solid concrete first floor walls. There was no evidence that the beamhad dropped relative to the walls either below or above the beam as a result of theearthquake. Logically, it was thus unlikely there would have been vertical cracking ofthe brickwork as a result of the earthquake.[170] Mr Smith explained that the surfaces of recently fractured concrete or masonryare clean and fresh. Older cracked surfaces show evidence of oxidisation and the buildup of dirt and grime.[171] Mr Smith said that, in his close inspection of the brickwork in December 2010,he found no cracking which, in his opinion, could be attributed to the Darfieldearthquake. His other general observations were that:• the cracks could be seen in the photographs Mr Wilkinson took before theearthquake;• significant vertical cracks in the un-plastered first floor wall all coincidedwith the steel dowel embedded within the brickwork;• the vertical displacement of the steel dowel identified that verticalsettlement of the outer skin had occurred prior to the installation of theconcrete band (which I accept because the concrete band on top of theconcrete ground floor walls provided support for the brickwork above toprevent vertical dropping of the brickwork as a result of the earthquake);and• consistent with Mr Kearney and Mr Bligh's evidence, he did not identifyany reflected cracking to the internal surface finishes. This was consistentwith his opinion that the external cracking had been present for many yearsand pre-existed both the Darfield earthquake and the installation of theconcrete band at first floor level.[172] Mr Smith could not discount the possibility of bricks moving in the earthquakebut considered the loose, damaged or broken bricks were primarily the result of theway they were laid, the potential disturbance caused by removal of the internal plasterand disturbance resulting from deterioration of the timber between the unreinforcedconcrete ground floor and the unreinforced brick first floor walls.[173] Mr Smith said he knew the brickwork had been constructed over timberdirectly on top of the unreinforced concrete walls below. Mr Smith's initial view, thatit was likely the timber beam had significantly deteriorated so as to require its removaland replacement with a concrete band, was confirmed by the plans of the engineer, MrKaye, to the Council at the time the work was to be done. It was also confirmed byphotographs.[174] Mr Smith considered there could have been damage to the first floor brickworkthrough the process of removing the timber beam and replacing it with concrete. Therewas no disagreement that the work had been carried out to a high standard. A steelplate was installed to support the brickwork. Jacks were made and put in place toprovide support for the steel plate between the top of the concrete ground floor wallsand the steel plate. Substantial steel reinforcing rods ran horizontally to providereinforcing for the concrete beam. Bricks above the beam were removed at regularintervals so there could be concrete upstands going vertically into the wall, presumablyto stiffen the brickwork against lateral movement.[175] The portions of the timber beam that are evident in the photographs and whichshow decay appear to be only small portions of the original beam. In all thephotographs, significant portions of the beam have been removed. The photographsshow the jacks that were put in place to provide support instead of the beam and alsoreinforcing rods prior to the replacement of the total beam with concrete.[176] It is easy to understand how, with all this work being done, there could havebeen damage to existing brickwork and at least a temporary loss of vertical supportwhich could result in cracking. Mr Smith referred to photographs taken during thisreconstruction process. One showed an area where there were no longer bricksimmediately above the beam so there was, when the photograph was taken, no supportfor the bricks above. The photograph showed loose bricks placed within that gap.Another photograph showed a bottom row of bricks that were loose, having droppedfrom the row above. Another showed a gap of approximately 10 mm between bricksand a length of wood which remained below the brickwork, consistent with a loss ofsupport for bricks above through the jacking up process and damage to the mortar.[177] Mr Smith said that the timber most susceptible to decay would have been onthe outside of the beam where it was exposed. The weight of the outer layer of thefirst floor brick walls on the decaying timber could well have resulted in differentialmovement to the first floor brick walls. He said that such movement would explainthe vertical displacement of the dowel clearly evident in a photograph showing asignificant historic crack in first floor brickwork on the east wall at the north end.[178] Plaster covering the brickwork had been removed after the beam had beenreplaced. Mr Smith considered it probable that removal of the plaster surface mayhave also resulted in damage to the brickwork, particularly near the top of the wallwhere there was less weight acting on the bricks which he said were embedded in aweak lime-based mortar.[179] It was Mr Smith's opinion that the majority if not all of the damage to thebrickwork was caused by:(a) the expansion of corroding metalwork in the wall;(b) removal of the external plaster;(c) movement of the brickwork due to deterioration of the timber which had,for many years, supported the brickwork and which was exposed to theeffects of external moisture; and/or(d) the removal of the timber beams and installation of the concrete band atfirst floor level.[180] Mr Clark had looked at the brickwork on 8 December 2010. He said he wasconscious of how brickwork can become an issue under a seismic event and he lookedfor indicative signs of that, particularly of step cracking that would indicate earthquakedamage. It did not appear to him then that there were any sharp edges to the cracks inthe bricks.[181] Mr Clark considered the brick walls appeared exactly as he would haveexpected where plaster had been hacked off. The fact there was no plaster on thebricks made it easier to assess whether there had been earthquake damage to the bricks.[182] Mr Clark saw nothing around the windows that was normally indicative ofearthquake damage.[183] Mr Clark was clear that he did not observe anything on his visit to the propertyin 2010 to indicate that existing extensive cracks in the walls were likely to havewidened or lengthened as a result of recent earthquakes, as Mr Wilkinson hadsuggested was likely.(i) The south wall[184] Mr Smith observed that the particular vertical cracking on the south wall nearits western end was in an area where he considered it was likely to have been causedby decay in the supporting timber prior to installation of the concrete band. Heobserved vertical cracks near the west end of the south wall and what he consideredto be similar pre-existing cracking to the east and west wall. He observed paint incracks on the south wall, the crack edges were eroded and the surfaces aged. Therewas the residue of an asphaltic sealer in a crack, established moss/lichen growth in thecrack and the crack was not reflected in the interior.[185] Mr Bligh referred to an area of bricks on the south wall. The bricks sit on whatappears to be an upstand of the concrete beam. Near the bricks was the end of a boltthat Mr Bligh said held a stringer for the annexe to the second story brick wall. Thephotographs show gaps around some bricks near the bolt and immediately above theconcrete upstand. Mr Bligh says these were exposed when he removed plaster fromthe surface on that area after the earthquake. He said that, before he had taken theplaster off in these areas, the plaster was undamaged. He removed the plaster toinvestigate what, if anything, had happened beneath it. Mr Bligh attributed the stateof the bricks in this area to the earthquake.[186] Mr Smith explained how it appeared, from the nature of the concrete andshaping of the bricks in this area, that there had been a crude installation of the bricksat that point, in association with the concreting work, which would explain gaps in thebrickwork in that area. He said he was absolutely satisfied the damage related to theinstallation of the concrete band. He pointed out that, if cracks around the bricks hadresulted from lateral movement in the bricks, he would have expected to see a crackin the concrete beam below those bricks. I accept Mr Smith's evidence as to this areaof brickwork.[187] Mr Smith identified gaps in the mortar around a lintel at the top of a windowon the west side of the interior south wall of the bedroom in the south-west corner ofthe house. There was vertical cracking in the mortar joints to the brickwork above thewindow in this area visible on the inside of that wall. Mr Smith considered thepotential movement of brickwork in relation to the lintel could have been earthquakedamage. However, he discounted this because of the localised nature of the damageand the absence of damage to the exterior at that point. Cracking on the exterior ofthe wall nearby. All this indicated to him that the damage at that point was more likelyto have occurred during removal of the plaster on the interior side of this wall.(ii) The east wall[188] Mr Smith made similar observations as to vertical cracks at the north and southends of the east wall. He said the cracks are visible, as I accept they were, in MrWilkinson's pre-earthquake photographs. With regard to most of these areas, he notedthe cracking was not reflected in the interior and was in areas where the bricks wereof low strength and lime mortar was weak. The damage was also in areas which wouldhave been vulnerable to damage during construction of the concrete beam. Mr Smithobserved loose bricks at the south end of the east wall but, for a number of reasons,did not consider the damage to be earthquake related. The area of loose bricks wasisolated, the bricks were immediately above an area where the timber was removedand replaced by the concrete band, the cracking was not reflected in the interior plasterand there was no mortar in some brick joints.[189] Mr Bligh referred to what he said were loose bricks and cracks in bricks thathad moved on the internal layer of bricks above the lintel of a window on the easternwall of the house in the stairway. The cracks and evidence of movement are notapparent in the photographs. Mr Bligh described this as hidden damage because thebricks in that area had previously been covered by wallpaper. He does not, however,describe any folds or cracks having been evident on the wallpaper before he took itoff.[190] Mr Smith noted some cracking and de-bonding of mortar below a top layer ofbricks on the eastern interior wall of the house at the end of the passageway. It wasthe area where plaster over the bricks had been removed. The brickwork wasundamaged. Mr Smith said it was likely to have resulted from movement in thebrickwork as a result of deterioration of the timber beam and the re-levelling of thefoundation. The bricks would have been unlikely to drop so as to cause the mortar tofail once the concrete beam was in place.[191] Mr Smith did observe cracking of the mortar joints above and below thewindow on the east wall exterior. He considered it was likely present before theearthquake but said it was in an area where earthquake damage could be expected. Heconsidered the damage could have been caused by the non-earthquake matters alreadyreferred to but said he could not exclude the possibility that there was some movementof the joints during the earthquake because this was an area of the wall which wouldbe vulnerable to earthquake stresses.(iii) The west wall[192] Mr Smith observed cracking with an aged appearance on the west wall. Therewas some minor staircase cracking at the south end of the west wall in an area wherethere was likely to have been previous advanced rot of the timber. That particularcracking was not reflected on the interior of the wall and was near an old vertical crack.(iv) The north wall[193] Mr Bligh referred to what he said was evidence of cracking around the windowframes and architraves on the northern wall in the main upstairs bedroom. His friend,Ms Clark, had also referred to cracks around the window as being evidence ofearthquake damage.[194] Mr Bligh described how the bricks had moved away from the window frameas a result of the earthquake and of his not noticing any gap between the frame and theexternal bricks before the earthquake. A photograph taken after the earthquake of thebricks next to the window frame showed how the window frame sat against the brickwall. At that point, there was no cracking between the bricks so all bricks remainedfixed in place as part of the wall. The photographs showed that certain layers of bricksremained tight against the window but there was a gap between the window frame andother bricks both above and below those that were tight against the window. Contraryto Mr Bligh's opinion, this indicated that the whole wall had not moved away from thewindow frame. It was consistent with the bricks not all having been in place tightagainst the window before the earthquake.[195] Faced with the way some bricks were tight against the frame as beinginconsistent with his evidence that the whole wall had moved away from the timberframe, Mr Bligh said the wall must have moved in a twisting manner. Although MrKearney expressed an opinion that the earthquake had caused "mass wall movementand deformation", Mr Smith said he saw nothing consistent with that theory. It is notconsistent with the photographic evidence.[196] Mr Bligh says the earthquake caused cracking around the architrave of thewindows in the main bedroom on the northern wall but the gap is uniform around thearchitrave, both on the sides and at the top. The paintwork on the edge of the architravealso suggests that, at some stage, there was some form of beading or plaster againstthe architrave. It is no longer there, hence the uniform gap. None of that is consistentwith there having been damage to the window frame where it was sitting caused bythe earthquake.[197] When I visited the property during the trial, I observed that the window framesupstairs on the northern wall of the house appeared and felt as if they were solidly inplace. When I referred to my observation, Mr Bligh accepted that the window framesin the main bedroom upstairs were held firmly in position. He had never observed orexperienced anything to suggest they were not rock-solid within the wall.[198] I consider Mr Bligh's explanation, as to how, after the earthquake, there couldstill have been bricks abutting the window frames, was another example of Mr Blighbeing determined to assert there was earthquake damage, even when it wasinconsistent with the photographic evidence. It was also another example of hisreadiness to come up with an implausible explanation in support of his case to counterthe reality of the situation.(v) Loose bricks on top of the walls[199] Mr Smith inspected the roof space and saw loose bricks on the top of the brickwall. They are between rafters. Mr Smith said they appear to be loose bricks and justthe result of poor workmanship. Mr Bligh said the bricks were not like that when theroof was replaced.[200] Confronted with what the photographs showed, Mr Bligh said the gap betweentwo part bricks had to have been caused by the earthquake. Again, his observationwas based not on what he recalled of a close examination of these particular bricksbefore the earthquake but the fact that the house had been subject to a very violentearthquake and his supposition that the earthquake must have bounced the bricksaround so much that mortar had been flung from them. There was no other evidenceof that. Mr Bligh also said that the brickwork should have been well laid because thetitle to the house showed that the owner who had done the work was a bricklayer.[201] Mr Smith said removal of mortar around bricks is not an earthquakephenomenon.[202] Mr Smith said you would not get loosening of the bricks in the top from anearthquake, in ways that were apparent in the photographs, without some form ofdamage below it. Here, there was generally none.[203] In his brief of evidence, Mr Kearney said it was difficult to determine withabsolute certainty what damage to the property was a result of the earthquake sequenceand what damage pre-dated the earthquake sequence. The damage which heconsidered had occurred as a result of the earthquake sequences was cracking in thewalls above and below windows, gaps in door joinery of varying widths anddislodgement/displacement of bricks which he said could not have arisen as a resultof long-term static settlement alone.[204] Mr Kearney was of the opinion that the windows no longer fitted theirapertures which meant the earthquake had caused not only individual brick damagebut it also "mass wall movement and deformation".[205] Mr Smith disagreed with that conclusion and said he had seen no indication ofany significant movement of the brickwork as a result of the earthquakes.[206] There were a number of photographs taken looking along the brick wallsbeyond the window openings. The photographs were probably taken in an attempt toshow a gap between the brick wall and the window frames. What is apparent fromthose photographs is that there is no apparent bulging, twisting or misalignment of thebrick walls. They remain perpendicular and consistent with the vertical parts of thewindow frame. The photographic evidence of the walls does not indicate there hasbeen "mass wall movement and deformation".[207] I thus accept that the observed damage was not consistent with there havingbeen mass wall movement and deformation.[208] Mr Kearney's summary of damage caused by the Canterbury earthquakesequence, based in part on what he had been advised by Mr Bligh, included looseningof window frames with relation to the surrounding brickwork, resulting in thehomeowner sealing the frames with tape to block the draught. It is significant that MrKearney provided no detail or photographic evidence to show there had been aloosening of the window frames. Mr Smith said that he found no evidence of suchdamage during his inspection.[209] Mr Kearney said there was evidence of separation of outer bricks from theinner bricks at the edges of the brickwork around window openings on the externalfirst floor walls. Mr Smith says he examined accessible cracking above the windows.In nearly all cases, the cracking was aged with weathered edges to the plaster andweathered surfaces within the cracks.[210] Mr Kearney discounted Mr Smith's explanation as to what was likely to havecaused the damage to brickwork. With regard to the potential for damage through theremoval of plaster, he based his opinion, in part, on the fact Mr Bligh had told him theplaster had been removed using hand tools and his view that, if this had causeddamage, then the damage would have been more extensive. The damage to the wallsis not extensive but Mr Smith explained why any damage of this sort could have beenmore localised.[211] Mr Kearney discounted, to some extent, the possibility of there being damageto the brickwork as a result of deterioration in the wooden beam and the process ofreplacing that beam but, in both instances, acknowledged that some damage couldhave resulted from those methods.[212] For reasons I have already referred to in detail, I am satisfied the potential fordamage to the brickwork, as a result of deterioration in the wooden beam and theprocess of replacing it, was significantly greater than Mr Kearney had initially beenwilling to acknowledge.[213] Mr Smith pointed out that Mr Kearney had not provided any explanation as towhy the outer skin of brickwork appeared, in places, to have dropped verticallywithout a related dropping of the inner skin. Mr Smith's explanation was that thevertical drop in the outer skin was due to the rot in the timber beam.[214] Mr Smith's conclusion was that almost all the damage to the brickwork waspre-existing. He acknowledged the possibility of some widening of cracks, however,said the widening was unlikely to require an alteration to the repair work and wouldnot have affected the structural integrity of the house.[215] Mr Smith properly acknowledged that he could not be certain as to what hadcaused all the damage to the brickwork he observed in December 2010. Neither EQCnor IAG have to prove how the damage observed after the earthquake had been caused.It is nevertheless relevant, in deciding whether the damage observed after theearthquake was pre-existing, that there is a rational explanation as to how it mighthave been caused independently of the earthquake. I am satisfied, through all theevidence including the opinion evidence of Mr Smith, that there is such a rationalexplanation.[216] Mr Smith detailed what he observed of the damage to the first floor brick wallsin December 2010 after, by far, the most serious earthquake affecting Mr Bligh'shouse. He explained why he did not consider that damage to have been caused by theearthquake. I accept his evidence in this regard.[217] I accept the damage Mr Smith observed, and the state of the brick walls afterthe earthquake, was not consistent with there having been mass wall movement anddeformation. The evidence adduced does not prove there was individual brick damagecaused by the Darfield or any other earthquake.[218] Mr Bligh saw the first statement of claim which was filed for him in theproceedings by earlier lawyers. Mr Bligh agrees that, in that claim, he apportioned100 per cent of the damage to the house to the Darfield earthquake. When referred tothat, he said he did not know if there was any further damage later on.[219] Mr Bligh has thus been unable to prove, on the balance of probabilities, thatthe Darfield earthquake or any other earthquake caused structural damage to the firstfloor walls of his home in the way he particularised in his statement of claim.Cracking of external plaster surfaceCracking to external plaster at windows on the southern face of the first floor[220] In opening, Mr Lynn acknowledged the defendants' evidence would be thatany cracking or crazing evident to this part of the building was shrinkage cracking inthe plaster, but Mr Kearney's evidence would be that, while some of the cracking andcrazing might be due to plaster shrinkage, movement of the masonry bricks underneaththe plaster might also lead to the cracking of this plaster. He referred to Mr Bligh'sview that shrinkage was not responsible for all of the cracks seen.[221] Mr Smith observed crazed cracking on the exterior plaster surface of first floorwalls where it remained on the south and west walls. He considered the cracking wasconsistent with drying shrinkage expected of surface plaster soon after the plaster wasapplied. He noted it was not reflected through the wall and was generally in a patternor areas that he would not have expected to be highly stressed in an earthquake. Hesaid his inspection of the cracks using magnifying equipment established the crackswere aged and pre-dated the Darfield earthquake. There was lichen and mould inplaster crazing which clearly pre-existed the earthquake. Photographs taken at thetime of his inspection recorded erosion around the age of the cracks and mould growthon exposed surfaces and in the cracks.[222] Mr Smith accepted that, if an old crack was widened as a result of earthquakedamage, it could have dirt and grime in it, typical of an old crack. That does nothowever help to prove that cracks which Mr Smith considered were old had in factwidened through earthquake damage.[223] There was cracking in the plaster above a window on the first floor south wall.The most obvious crack ran from the centre of the arch above the window opening upto the wooden beam under the eave. That crack had a white substance in it in 2007.Mr Smith said it appeared to be some sort of filler.[224] There was more paint at the top than at the bottom of this crack but it appearsfrom photographs that there was still some paint lower down in the crack. Mr Smithexplained that the difference in what remained in the crack could probably beexplained by the way the plaster was more exposed to the weather lower down andnearer to the window than the area towards the top. There was evidence that an attempthad been made to seal another crack on the south wall with a bitumen sealant.[225] Finer cracks had not been filled but Mr Smith said this did not indicate theywere earthquake damage. When inspected with magnification, he found they hadweathered edges. There was one crack going upwards, although not exactly vertical,from a corner of a window opening on the south wall. It was wider at the top. MrSmith considered this was consistent with the settlement of the brickwork to the leftof that window. The building had a very sound ground floor structure. The concreteground floor walls were substantial. There was a very good tie around the buildingwith the concrete beam. The potential for lateral spread and widening of the crackcaused by the earthquake was thus limited.[226] On his first visit, Mr Clark observed spider cracking in the plaster-work on thesouth side but it had lichen growing in it and there was nothing that indicated recentmovement.[227] I have also discussed the cracking of the plaster to the extent it remained onthe southern and western walls of the home at the time of the earthquake when dealingwith damage to the first floor walls. Mr Kearney's opinion, that cracking and crazingof the plaster might result from movement of the masonry bricks underneath, does nothelp to prove that this was the actual cause. His opinion does not help to prove that,if there was movement of the bricks underneath which caused the damage, thisoccurred in the earthquake rather than a shifting of the bricks caused by thedeterioration of the wooden beam or the reconstruction process with the establishmentof the concrete beam.Minor horizontal cracking to the ground floorExacerbation of the cracking and minor spalling below the window on the southwestern inner face of the external wall of the ground floorExacerbation of the cracking and minor spalling above the window in the southwestern corner.[228] The alleged damage as to these particulars mainly related to the ground floorwalls. In his opening submissions, Mr Lynn acknowledged that the structuralengineers appeared to be in agreement that the ground floor masonry walls werecracked to some extent prior to the earthquakes and any further damage to the wallsas a result of the earthquakes is of minor structural significance.[229] Mr Bligh said all the cracks in the concrete of the downstairs walls werehistoric. Some had opened up "a wee bit". He also said he did not require anyone tofix them. He was happy to fix them himself.[230] Mr Kearney agreed cracking in the ground floor masonry walls was historicaland earthquake damage to those walls was "minor and inconsequential".[231] The only area of cracking or minor spalling below a window on the inner faceof the wall, which was at issue in the proceedings, was in relation to the wall in thekitchen area on the eastern side of the house. In that area, there was a crack and aroughly depressed area in the concrete below the window lintel where, at some stage,newspaper had been stuffed. Photographs taken by Mr Wilkinson, both before andafter the Darfield earthquake, show there was no observable change to the cracks inthat area. These photographs also show the cracking and minor spalling above thewindow in that area.25[232] Mr Bligh explained that, when the window had been installed, a hole had beencut in the concrete, concrete had been poured around it and then hardboard placed overthe new concrete. Any existing gap between the new concrete and the window frameand previous cracks in the wall would thus have been covered by the hardboard. MrBligh explained that he had removed the hardboard in the 1980s. It is apparent fromthe internal cracks that they related very much to the join between previous concreteand the concrete that had been poured around the window frame.[233] Mr Bligh was, at best, tentative in asserting there had been a widening in thesecracks as a result of the earthquake but suggested the photographs indicated that acrack had "opened up a bit". I do not consider this was clear from the photographs hereferred to.[234] Mr Bligh referred to a pre-earthquake photograph showing another section ofthis kitchen window and a post-earthquake photograph. In both photographs, thereappears to have been a significant broken depression in concrete below the windowlintel to the right of an area of yellow paintwork. In the post-earthquake photograph,there is newspaper pushed into that hole. Mr Bligh said the paper was stuffed therebecause it was draughty. He said it became draughty only after the earthquake. MrBligh claimed that the crack in concrete below the window had widened as a result ofthe earthquake.25 The term "spalling" was used in submissions and in evidence. "Spalling" in concrete is a resultof water entering brick, concrete or natural stone and forcing the surface to peel, pop out or flakeoff. In concrete, spalling happens because there is moisture in the concrete.[235] The crack was clear in photographs taken by Mr Wilkinson both before andafter the earthquake. It was below the window lintel to the right of the area of yellowpaintwork. In the 2007 photographs there appears to be daylight showing through aslight gap between the lintel and concrete underneath. The newspaper under thewindow in the kitchen area is apparent in a photograph taken by Mr Wilkinson on 28September 2010.[236] The photographs indicate that the state of the concrete below the sill, alongsidewhere the newspaper had been stuffed, below it and between the concrete and thelintel, was the same both before and after the earthquake. Mr Bligh's engineer, MrKearney, agreed there was no apparent change in the photographs of this crack takenbefore and after the earthquake. Mr Bligh was not living at his home between the timeof the Darfield earthquake and the time Mr Wilkinson took his photograph showingthe newspaper stuffed below the lintel on 28 September 2010.[237] In response to a question from me, Mr Bligh said the newspaper could havebeen there before the earthquake. I do not accept Mr Bligh's evidence that the crackhad widened or became draughty because of the earthquake.[238] In evidence in chief, Mr Bligh said there was cracking to an area above thewindow although it was not clear in photographs he referred to. He said he could notrecall if the cracks were there before the earthquake.[239] Mr Bligh has not proved there was earthquake damage as to these particulars.Damage to the reinforced concrete columns and lintel above the new front door[240] Mr Bligh said there was damage caused by the earthquake to the lintel abovethe front door, with cracking on the internal faces of reinforced concrete columnsbeside the door.[241] There was a short horizontal crack in concrete above the elaborately frameddoorway that had been installed on the northern side of the house. Mr Bligh acceptsthis crack was there before the earthquake. Mr Smith and Mr Clark identified thatcrack would have occurred from the way the concrete was laid during thereconstruction in that area.[242] The crack was evident in a photograph taken by Mr Wilkinson before theearthquake so did not result from earthquake damage.[243] I am satisfied any cracks in the column or lintel associated with the new frontdoor were not caused by an earthquake.Horizontal cracking through sections of the new bond beamMinor cracking between bond beam and existing walls[244] Mr Kearney referred to minor cracking between the new concrete bond beamand existing walls as being earthquake damage. He accepted this damage does notaffect the structural integrity of the building and could be repaired simply throughputting epoxy in the crack. Mr Bligh did not assert, with any clarity, that these crackswere new after the Darfield earthquake.[245] Mr Clark said, as a builder, he could say from experience what a cold jointwould look like. He was confident the horizontal crack in the bond beam at one pointwas the result of a cold joint.[246] I accept the evidence of Mr Smith and Mr Clark that this cracking was in thenature of cold joints that would result from the concrete laying process. I also acceptMr Smith's evidence that, on his observations of 23 December 2010, these cracks werenot recent and would not have resulted from the earthquake.Cracking to the foundation slabPossible formation of voids under the foundation slab[247] In his evidence as briefed, Mr Bligh described how he had installed anengineer-designed reinforced concrete floor around the time of the beam alterations.He said he never covered the floor with fixed floor coverings so was always able tosee the condition of the slab. He says he never saw any cracks in it before theearthquakes.[248] Mr Bligh described, in some detail, cracking to the concrete slab which he saidhad occurred as a result of the earthquake. He was adamant that none of the crackingwas present before the earthquake. He went on to say that he had noticed a drummingof the concrete slab after the earthquake by the hollow noise produced when the slabwas tapped with a rubber hammer or walked across with heavy steps. Mr Bligh saidhe knew there were no cracks in the slab before the earthquake because he had beenthere when it was poured.[249] As mentioned earlier, Ms Clark and Mr de Boer said they had first noticedcracks to the slab after the earthquake.[250] Both Mr Kearney and Mr Smith agreed the cracking radiating out from wherean old fireplace had been was shrinkage cracking that would have been there beforethe earthquake.[251] The concrete slab floor was designed by an engineer. As Mr Bligh explained,there is not a uniform base for the concrete slab. Around the perimeter of the floor theconcrete is thicker and deeper, with reinforced concrete beams. There are similarreinforced concrete beams at different points across the floor. Away from the beams,there is polystyrene under the floor.[252] While Mr Kearney agreed the cracks propagating out from the inside cornersof the slab edge where it had been poured were consistent with concrete shrinkage, hesaid they were different in appearance from two longitudinal cracks that run in a west-east direction in the kitchen area. He said, on that basis, they should be considered ascracks caused by the earthquake but he did not refer to any features of the cracks toexplain why they would have been caused by the earthquake, rather than settlement ofthe slab. Mr Kearney had made no mention of the cracks to the floor slab as beingearthquake damage in his initial evidence prepared on 31 October 2016.[253] Each crack runs in a more or less straight line from the eastern wall orfoundation to the cold joint crack that runs north-south where there is a constructionjoint between the two slabs.[254] Little reliance can be placed on Mr Bligh's evidence that the two longitudinalcracks had not appeared before the earthquake. He said the same of the shrinkagecracks which spread out from the base of where the log burner had been, which theengineers agreed would have pre-existed the earthquake. The longitudinal crackingwould, to a significant extent, have been covered by vinyl which was over that area ofthe floor before the earthquake and when Mr Wilkinson photographed the area in 2007.[255] Mr Smith speculated that the east cracks, because of their linearity, may haveresulted from the presence of a crack inducer. He explained that a crack inducer is ametal bar typically placed at the bottom of a concrete slab to induce a shrinkage crack.He said, where cracking of a concrete slab is linear, it is usually due to the presence ofa construction joint, sawn joint or the use of a crack inducer. He considered all thecracks to be a predictable outcome of casting a lowly reinforced concrete slab in poursexceeding six metres and around an existing concrete foundation. Mr Smithconsidered that the floor was poured in such large areas that there was some likelihoodthere would be a crack about halfway along that slab and there was an increasedlikelihood of this with thicker concrete around the edges of the floor, as was the casehere. He also noted the cracks he observed in the concrete slab did not affect the slab'sutility or functionality.[256] Mr Clark considered the cracks in the kitchen area looked like shrinkagecracks, in part because they came off the old chimney base in a diagonal area and thendiscontinued the further away they got from it. As a builder, he was familiar withshrinkage cracks. He also said he had tested the floor for a "drumming" sound, as MrBligh said he had done, in a way that might have indicated there was a void beneaththe floor. He detected no such sound.[257] There appears to be agreement that the cracks do not structurally affect the slabstructurally. Mr Bligh's plan was to have floor coverings, possibly carpet or tiles, overthe kitchen/dining floor area so that cracks of the sort that appeared here would nothave been a problem from an aesthetic point of view. Although he has not been ableto achieve this, I do not consider the cracks, as described, affect the cosmetic oraesthetic value of the floor slab in all the circumstances that currently exist. Mr Blighhas not been able to prove, on the balance of probabilities, that the cracks in the floorslab were caused by the Darfield earthquake or any other earthquake.[258] Mr Bligh said that he believed there are voids beneath the dwelling and garagefloor slabs as a result of earthquake shaking.[259] The only geotechnical engineer to give evidence was Mr Ashby. He consideredthat the mechanisms by which a void could form under a concrete floor slab as a resultof earthquake shaking would not have occurred at this site as a result of the 4September 2010 earthquake. He considered it "highly unlikely, from a geotechnicalperspective, that the alleged sub-floor voids could have been caused by anearthquake".[260] Mr Ashby examined the Selwyn District Council's property file whichincluded specifications for the foundation works for the dwelling. The in-fill concreteslab for the dwelling was to be founded on "clear ground overlain with hard fill whichshall be rounded river run shingle well compacted in 100 mm (maximum) layers, andlevelled off with sand binding", in compliance with New Zealand standards.Assuming these works were completed according to specification, he considered thatsettlement, due to collapse of the granular soil structure underlying the dwelling slab,was "very unlikely". He considered another mechanism that could cause settlementof loose dry sand and potentially loose gravel. He expected, given the sub-surface soilcharacteristics on the site and the materials used in site preparation, the amount ofvertical settlement due to dry shake-down underneath the dwelling and garage slabswould have been negligible.[261] Mr Michael Finnemore is an experienced geophysicist who has beenextensively involved in the provision of geophysical investigation services. He hasconducted an extensive number of ground penetrating radar (GPR) investigations,including of many residential buildings in Christchurch. GPR is a good method forimaging the lateral extent of the high amplitude reflections caused by air-filled voids.In 2015, he was engaged by IAG to carry out a GPR survey of the concrete floor slabof the house and the garage. His reports and evidence were admitted by consent.[262] Mr Finnemore's GPR examination identified zones of thickening of the slab atlocations, forming a grid pattern throughout the slab and around the walls, most likelyto reinforce the slab to create extra support for internal walls. Reinforcing was seenthroughout the slab with additional reinforcing within the thicker areas of the slab. MrFinnemore considered it likely that there was polystyrene insulation inserted belowthe slab during construction. Mr Bligh confirmed that such insulation had been putthere.[263] Accordingly, I cannot find that the cracks to the floor of the house were causedby the earthquake. Nor has Mr Bligh proved that the earthquake created voids underthe concrete floor of the house.Separation of sheet joins and damage to finish around doors and windows[264] I have already referred to Mr Bligh and Ms Clark's evidence as to claimedcracking around the windows in the main bedroom and why I do not consider that theuniform gap between wall linings and architraves at that point appear to be the resultof earthquake damage. I have also referred to the evidence which has led to me beingsatisfied that an earthquake had probably not moved the lintel above a window on theeastern wall of the house. The evidence has not proved that any of the windows movedin relation to the walls as a result of the earthquake. There would, however, have beena significant rattling of the sash windows within their frames and probably a bangingof the sash weights within the window frames with the earthquake. The noise wouldhave been frightening but it does not mean the window frames would have movedrelative to the walls as a result of the earthquake.[265] The only damage which Mr Bligh alleged in relation to a door was the minorcracking in mitre joints associated with the more recently installed French door. Forthe reasons referred to by Mr Clark, I am not satisfied those cracks were earthquakedamage.Cracking in internal plaster[266] There was little specific evidence from or for Mr Bligh as to such damageexcept to the extent Mr Bligh claimed there was damage to plaster around some of thewindows. I deal with that below. In opening, Mr Lynn said any dispute over whatmight have caused internal cracks in the plaster could turn out to be academic. Thiswas on the basis Mr Kearney's solution for the claimed earthquake damage tobrickwork would require shotcrete to be applied on both external and internal walls.[267] Mr Bligh has not proved there was earthquake damage to internal plaster asclaimed.Cracking in the corners of internal walls on the first floorSeparation and damage to the finish of the first floor tongue and groove wallsDamage to the plaster in the tongue and groove section of the first floor ceilingSeparation of skirting boards and hallway from walls on the first floorTongue and groove boards in first floor hallway have separated leaving gaps andcreating draughtsCosmetic damage to the house including patches of paint coming adrift in masterbedroom.[268] Since at least 1991, the internal ground floor walls, which formerly providedsupport for the first floor and the first floor walls, have been removed. The concreteground floor was laid in two parts. Before that happened, the ground floor internalwalls had to be removed. The joists supporting the first floor had to be supported withprops cantilevered from the perimeter of the ground floor. During that process, theremust have been considerable potential for movement in the internal and external firstfloor walls. The engineers agree that the propping that has remained in place sincethen is inadequate.[269] On my inspection of the property, I observed that the propping under the floorsappeared to be of a temporary nature. Near the middle of the area on the northern side,there was a prop under one end of a supporting beam but not under the other. To thenaked eye, it appeared that the floor joists had bowed, particularly in the western one-third of the area. There was a significant steel beam helping to support the joists butit only ran approximately two-thirds of the area, and it was supported by props. Oneof those props near the kitchen bench appeared to have had wedges driven under it toget it to the right height. Some of the props were standing at an angle.[270] Floor levels were measured by engineers. They showed the first floor haddropped where joists were inadequately supported.[271] On an internal wall in a bedroom in the south-east corner of the house, the wallwas lined with boards. There had probably once been scrim and wallpaper over thoseboards. Those linings are gone. Portions of the boards have been wrenched awayfrom the studs but the work had not been completed. Broken boards remained in place,consistent with considerable force having to be applied to try and wrench them awayfrom the studs. There could have been significant disturbance to the timber linings onthe hallway side of that wall as a result of that process.[272] The skirting boards had been removed from a number of the first floor internalwalls. There were no skirting boards downstairs above the new concrete floor. Afterthe earthquake, Mr Bligh had chipped away plaster from the internal side of the brickwall in the stairway area adjacent to the east wall and providing access to the firstfloor. There was potential for the bricks in that area to have suffered some damagethrough that process.[273] In an upstairs bedroom on the southern side of the house, large areas ofwallpaper appear to have been torn off. Again, an internal dividing wall between tworooms had been removed.[274] Mr Bligh said that, before the earthquakes, the internal first floor walls wereplastered. After the earthquake(s), he noticed new cracks in the bedrooms, includingon the north wall around and above the window. In giving evidence orally, he talkedabout "huge damage" around the seven windows, said the walls had moved around thewindows and new gaps had opened up, making the building uninhabitable because itwas too cold.[275] For reasons already discussed, I do not accept his evidence that the earthquakecaused walls to move around windows and new gaps to open up.[276] With the loss of support from internal walls below, internal walls on the firstfloor could drop in a way that could cause tearing of the wallpaper around the joinbetween the interior upstairs wall and the exterior wall. There was tearing of this sortof the wallpaper in the north-west corner of the upstairs north-east bedroom. Mr Blighidentified this tearing as earthquake damage. Mr Smith was confident it would havebeen caused by the sloping of the floor. The tearing is evident in a photograph of thiscorner of that bedroom taken pre-earthquake by Mr Wilkinson.[277] Mr Smith was referred to an area of creasing in wallpaper above a doorway inthe south-east corner of the north-east bedroom. He pointed out the creasing was at apoint where it would have been affected by a drop in the wall where the creaseoccurred, a drop that could be explained through the lack of proper propping. Paperhad been stuffed between the architrave and the brick wall in the south-east bedroom.It had been placed there after plaster had been removed from the wall.[278] Fine patches of plaster skimming on a wall of the main bedroom have comeoff the wall above the bed headboard. The loss of this skimming is not apparent in aphotograph taken by Mr Wilkinson in 2007 which shows the wall where this damageoccurred.[279] Mr Clark explained that there should have been tape along the joins betweenthe tongue and groove boards. The plaster would have been prone to fail because ithad been placed on smooth, bare timber which did not ensure good adhesion. It is alsoapparent that the plaster has peeled away next to a join. There was no diagonalcracking in the plaster that Mr Clark would have expected to see if the failure in theplaster had been caused by an earthquake. Mr Clark considered this damage was moretypical of delamination.[280] Mr Smith noted that the area where the thin plaster coating had failed was inan area where there was a loss of support for the first floor.[281] In contrast to the way Ms Clark described plaster falling on her from the ceilingduring the earthquake, neither Ms Clark nor Mr Bligh gave any evidence as to findinga delaminated section of the wall plaster at any time after the earthquake.[282] There is a defect in the wall lining but the evidence does not establish thatdefect was caused by an earthquake.[283] This delamination was in the main bedroom. It is apparent the main bedroomwas originally two rooms divided by an internal wall. The ceiling was tongue andgroove in both parts of the room. In the section above the bed, an attempt had beenmade to fill cracks in the tongue and groove ceiling. Mr Bligh said that a partner withwhom he had lived in the house had not liked the cracks and had filled them withplaster. The plaster was apparent in photographs taken both before and after theearthquake. It was not particularly neat. In the other part of the room, no attempt hadbeen made to fill the cracks or gaps in the tongue and groove ceiling so there was nouniform ceiling surface in the room before the earthquake. An area above the bed waspainted white but to a better finish than the other part of the room. In the other part,the ceiling was white but coming through the white paint was a pink-reddish colour,as if it had required another coat of white paint to properly cover what had been therepreviously. There were large patches of blue paint on the ceiling as if someone hadapplied a patch of new colour to see what it would look like without ever making adecision or finishing the work. There had been no attempt to cover up the place onthe external wall where there had originally been an internal dividing wall.[284] Mr Clark noted the paintwork in the master bedroom had probably never beenfinished off to a high standard.[285] Mr Bligh accepted there was a gib wall on the eastern end of the main bedroomthat was still to be painted. Mr Clark explained that, when gib board is over timberframing and placed under stress, it will quite often fail diagonally. Even if the cracksdo not go right through the paper, there will be bulges that indicate there has been afailure. Damage like that will usually be in the corners and tend to go off at 45 degreesfrom window frames and the like. There was no damage to the gib board consistentwith it having moved during the earthquake.[286] I accept from Ms Clark's evidence that, in the Darfield earthquake, dust orplaster from the tongue and groove ceiling fell onto the bed. However, in photographstaken after the earthquake, any change to the overall appearance of the ceiling in thatarea appears to be minimal. That part of the ceiling did not match with the other partso replacing or repainting that part of the ceiling where there might have been somedamage to the plaster would not fix that damage or improve the cosmetic or aestheticlook of the whole ceiling. I thus consider that any loss of plaster from the ceiling wasso minor that it has to be treated as de minimis and not material in the sense ofrequiring replacement or repair in terms of the EQC Act or the IAG policy.[287] There was a marked crack on one mitred join of the architrave to the door tothe main upstairs bedroom. The doorframe in the vicinity of that mitred join was nolonger square. I accept this could have been because of a slope in the floor throughremoval of support downstairs. There was filler in the gap.[288] Mr Smith was referred to a vertical crack in the corner of the main bedroomwhere two painted walls intersected. He explained that, at that point, the bricks to thewall would be interlocked so, if there was any structural damage, he would haveexpected the cracking on the interior to be stepped rather than a vertical crack. Thevertical crack in the corner, in his view, could be explained by the age of the house,the removal or change in support from the ground floor, and the changes that wouldhave occurred earlier with the wooden beam and its replacement with a concrete beam.In his opinion, there was nothing about that damage which highlighted it as earthquakedamage.[289] On the exterior eastern wall of a bedroom in the north-east corner of the housethere is a gap between the skirting board and the wallpapered wall. There are twolayers of old wallpaper on that wall, dropping down towards the skirting board. Thebottom of the original wallpaper stops at the point where the top of the skirting boardwould have been if it was against the wall. The bottom of the newer wallpaper endsat a point above the top of the skirting board, as one would expect if there had been astrip of wood at the top of the skirting board to conceal a gap between the skirtingboard and the wall.[290] Mr Bligh says it was the earthquake that caused the skirting board to comeaway from the wall.[291] When Mr Clark, from EQC, was inspecting the property on 29 August 2016,he noticed a short wooden beading, a quadrant, sitting on top of the skirting board. Itwas of the same configuration as would have fitted to obscure the gap between theskirting board and the wall, consistent with the bottom of the more recent wallpaper,as shown in a photograph which he took.[292] Mr Bligh said that the suggestion there would have been a quadrant shapedbeading along that skirting board, covering up the gap, before the earthquake was"rubbish". He asserted there had definitely been no quadrant along that length ofskirting board.[293] I am satisfied, having looked carefully at the photographic evidence, that theremust have been some sort of beading in that area before the earthquake and that theposition of the wallpaper was consistent with the gap having been there before theearthquake.[294] Mr Bligh has been unable to prove there has been cosmetic damage to thelinings in the bedroom as a result of the earthquake.[295] There was nothing about the floorboards to indicate they would have been tightbefore the earthquake. In the south-west bedroom, part of a floorboard had beenreplaced. There was borer in some of the floorboards. The boards in the hallway werenot tongue and groove but straight-sided. There were regular gaps between all theboards. This would have been consistent with the boards shrinking with age anddrying out, a process that would have been exacerbated by the installation of the logburner heating and the removal of the ground floor ceiling. Mr Bligh described howthe heat could come up through the gaps and heat his mattress.[296] Mr Clark pointed out that the concrete beam or band had constrained the firstfloor so the gaps in the flooring boards were more likely to have been caused by theboards drying and narrowing through heat rather than lateral movement outwards.[297] There had originally been lino and carpet on top of this flooring but Mr Blighhad removed it, intending to put plywood over the floor. When Mr Bligh obtained apermit for the reconstruction work associated with the installation of the concretebeam, the plans approved by the Council included the placement of 20 mm ply on thewhole of the first floor area, presumably to improve both the strength and appearanceof the first floor.Loose fixings in the roofLeaks to the roof above the master bedroom and above the flue of the log fireSplit roof rafter[298] There is one split rafter in the roof. It has split from the apex of what isdescribed as a birdsmouth aperture at the end of the rafter where, at an angle, it meetsa beam.[299] Mr Clark described it as being typical of a timber defect called a "shake",which results from a growth defect when timber dries out and splits. Mr Clarkconsidered the timber appeared to be more recent than the older timbers. The roof wasreplaced in the 1980s. Mr Bligh says this was part of the roof timbers which had beenthere before that time and it was not newer wood.[300] If it was older timber which had been there originally, for it to have beendamaged in the earthquake, it would have to be a case of just one strut in the roof spacehaving been damaged by the earthquake. If it was newer timber, then it could havebeen more vulnerable to splitting through drying out. Within the roof cavity andbeneath a steel roof, it would have been within an environment which was often hotand dry. There is no other damage to any other part of the roof framing or supports.[301] With Mr Clark satisfying me that the crack has the appearance of a "shake"resulting from a defect in the timber and its drying out, Mr Bligh has not proved onthe balance of probabilities that this damage resulted from the earthquake.[302] Mr Bligh claims the earthquake damage includes loose fixings on the roof ofthe house where nails popped out.[303] No damage to the roof and no leak to the ceiling had been identified inCanterbury Earthquake Services' January 2013 report or by Mr Csiba in the engineers'joint report to the Court of October 2015.[304] Mr Clark inspected the roof from the ground using high-calibre binoculars inAugust 2016 and November 2017. He could not see any nails lifted on the high roofto the main dwelling. On the lower roof over the bathroom area of the annex, he couldsee some fixings on the edge of the sheet that were not sitting down correctly toprovide an efficient seal. In his opinion, this lifting was not earthquake related butlikely from wind pressure imposed on this leading edge of the low pitched roof.[305] Mr Bligh asserted that loose fixings were not an issue before the earthquakebecause "they were brand new nails and [a] brand new roof". The roof was however,at the time of the earthquake, about 20 years old, having been installed around 1988.[306] Apart from small amounts of water staining on some roof timbers above themaster bedroom, Mr Clark could see no evidence of other roof leaks or stains in theroof cavity suggesting fixings had lifted. Mr Clark did not believe there wasearthquake damage to the roof. If there was, he would have expected to see damageto flashing or distortion to the trim deck metal sheeting.[307] The allegations as to this leak emerged a number of years after the Darfieldand related earthquakes. The evidence presented for Mr Bligh does not adequatelyrelate the emergence of the leak causing the staining with the occurrence of theearthquakes, so as to indicate it was likely an earthquake or earthquakes caused theleak in this area.[308] That is particularly so when the roof was at least 20 years old at the time of theearthquake and the emergence of leaks is commonly associated with normal wear andtear of a roof of this sort.[309] Mr Bligh says there is a leak around the flue of the log burner which he sayswas not there before the earthquakes. He claims the leak is earthquake damage.[310] Mr Clark inspected the roof space of the house during both his August 2016and November 2017 visits. Mr Bligh mentioned problems with this leak to Mr Clarkduring the August visit. Mr Bligh showed him a small stain above the bed. Mr Clarkspent time lying on his back in the roof space with a torch but was unable to identifywhere a leak could have come from. He considered the leak was likely to have comefrom the flue around the new chimney because of particular problems that could occurwith the flashing that was then used. I accept he carefully examined the area aroundthe flue. He could not identify any damage with the flue that would have resulted fromthe earthquake and that would explain any leaking.[311] Mr Clark noted the flashing around the flue was a style no longer used. It is astyle which tends to trap water on the top of the flattened ridge in a way that is moreconducive to water ingress beneath the flashing.[312] He also noted that, with the type of flashing used, there is the potential for aleak to develop if the top edge of the roofing is not upturned to create a lip under theflashing. This lip limits water being driven by wind pressure from leaking through theflashing.[313] There is a deficiency in Mr Bligh's evidence in that he does not specify whenevidence of a leak from the flue emerged in a way that sufficiently links it to theearthquakes in a manner sufficient to prove that the earthquakes caused this leak.[314] Having considered all this evidence, I find the evidence adduced by Mr Blighinsufficient to prove that the damage he has alleged was caused by the Darfieldearthquake or any other earthquake.Floor in extension hallway bouncy, indicating failure of sub floor elementsMinor damage at sheet joints and door trims to extensionCosmetic damage to the extension including to the sleep out above cellarNails popped in the gib wallsCracks in paint and plaster seal at joints of panelsCracking to asbestos panels in the extension[315] These particulars all relate to alleged damage in the annexe.[316] Mr Bligh's pleaded particulars of the damage to the annexe include "minordamage at sheet joints and door trims to extension" and "cosmetic damage to theextension including cracks in paint and to plaster seal at joints of panels". Theseallegations again surfaced only in Mr Bligh's third brief of evidence for therescheduled hearing. They were not brought to the attention of Mr Wilkinson on hisvisit to the property in January 2011. No damage to the annexe was pleaded in MrBligh's original statement of claim dated 23 July 2013. Mr Smith was not asked toinspect the area when he went there on 29 January 2014 with Mr Bligh and his tworepresentatives associated with Canterbury Earthquake Services, Mr Johnson and MrBetts.[317] In the joint report to the Court of October 2015, both Mr Csiba and Mr Smithsaid there was no damage in the lean-to area and no earthquake damage remedial workwas required.[318] Mr Clark's evidence was that the cracks he observed did not appear to beearthquake related. Where there was cracking on internal walls, there was nocorresponding damage to external cladding in the way that would be expected withearthquake damage. He considered the defects were more likely to be the result ofpoor construction practice and, in the area of the bathroom and laundry, moisture. Thepathway on the eastern side of the annexe falls back towards the laundry and bathroomarea so that water is more likely to flow under that area, exacerbating potentialmoisture-related problems.[319] Mr Bligh referred to cosmetic cracking to asbestos panels on the extension butsaid there were minor historic cracks before the earthquakes. In Mr Clark's opinion,to the extent there were fracture lines on the asbestos, he thought it likely they wouldhave resulted from impact damage. The annexe structure is timber-framed and cladwith asbestos panels. If there had been racking as a result of the earthquake, causingfractures, he would have expected more damage to these panels. On viewing this area,it was also apparent, to the extent there was cracking on the exterior of the panels,those cracks did not extend through to the internal side of the panels.[320] In his pleadings and in evidence, Mr Bligh referred to some cosmetic damageto the sleep-out above the cellar, including evidence of nails popping in gib walls,some new cracking in paint, and some paint cracking in the cornice and scotia on theinternal side of a doorway. Mr Clark accepted that some of this damage may havebeen caused by the earthquake but considered this unlikely given the lack of damageelsewhere. He explained how nails popping in gib board can occur for non-earthquakerelated reasons, such as timber shrinkage or as a result of defective construction.[321] Mr Bligh says a small area of floor near a doorway leading from the house tothe annexe must have been damaged in the earthquake because it is bouncy in a waywhich he said it had not been before the earthquake.[322] Mr Clark also walked back and forth over the floor in that area. He said hecould feel what he described as a "lively floor" which meant there was somemovement, but there was nothing that creaked or cracked that would have beenconsistent with a damaged timber structure underneath. He managed to feel part ofthe area under the floor and it felt very damp.[323] Mr Clark believed this is likely to be the result of there being under-spannedtimbers or under-sized timbers for the span in that area. Mr Bligh did not accept thisbut, in explaining why, said that an area of flooring adjacent to this had been replacedwith new joists because of previous water damage in that area.[324] Mr Clark inspected the sub-floor area with an endoscope. His evidence as tothe joists being inadequate for the support that was needed is thus supported by hisvisual examination, an examination which Mr Bligh was not able to make because hedid not have an endoscope. There is also a potential problem with water getting intothat area through rain falling on a concrete path on the east side of the annexe whereit slopes towards the wall of the house.[325] Given the time at which the allegations as to this damage emerged, a lack ofcredible evidence as to precisely when those defects became apparent in relation tothe earthquakes, and the absence and proof of structural damage to the annex, Mr Blighhas not been able to prove that the annexe damage he referred to resulted from theDarfield earthquake or any other earthquake.Leak to the cellar[326] Mr Bligh is claiming for earthquake damage to the wall of what is now a cellarbelow the sleep-out in the annexe to his house. There was once a well there, withconcrete walls. The well had been capped below ground level. The remaining part ofthe well is now a cellar, used primarily as a storeroom. Before the earthquake, theinternal face of the walls was covered with a black sealant, described by Mr Smith asmulseal. Mr Bligh claims that the earthquake has led to leaks in the concrete wallwhich now requires the cellar to be repaired with further internal coats of sealant. MrBligh's claimed cost of repairs included an amount for the application ofwaterproofing compound to internal faces of the sleepout basement walls.[327] In evidence before me, Mr Bligh said there was cracking caused by theearthquake in the cellar. Mr Bligh explained that water leaks through a crack in thewall which had resulted from different parts of the concrete wall being shunted in theearthquake. Although, somewhat inconsistently, when questioned, he said the leakwas from just one small spot.[328] There was no mention of damage to this part of the annexe in EQC's firstassessment of 8 October 2010, an inspection at which Mr Bligh had been present. Thecellar was not examined by Mr Wilkinson when he inspected the property for IAG on28 September 2010. I do not regard the omission of any reference to leaks in the cellarat that point as being significant. At the time of the first EQC assessment, Mr Blighwas living away from the property. The trauma of the actual earthquake was recent.The primary purpose of Mr Wilkinson's initial inspection was to assess whether thebuilding was suitable for occupancy in the short term and the extent of structuraldamage from recent earthquakes.[329] In October 2010, following the initial EQC assessors' visit, Mr Bligh had beentold those assessors thought there was earthquake damage and had put the cost ofrepairs at $90,000. The record of Mr Bligh's communications with EQC indicatesthat, after that initial assessment, Mr Bligh was claiming that the damage was muchworse than first assessed and was referring to certain damage specifically. Thatdamage included cracks to the slab in the garage, cracks to the wall of the house andbroken bricks.[330] Mr Bligh asked for a "heritage assessor" to assess the property. Mr Clarkinspected the property on 8 December 2010. By that time, Mr Bligh was being moreparticular as to damage for which he considered he had a claim. He was not presentwhen Mr Smith carried out his inspection of the exterior of the home on 23 December2010 but he was present when Mr Robinson inspected the property on 12 January2011.[331] On 3 March 2011, EQC advised Mr Bligh that his claim had been declined andprovided him with a copy of Mr Smith's report that was the basis for their decision.[332] In August 2012, Mr Bligh's son, Hayden Bligh, made a complaint about EQC'sdetermination that there was no earthquake damage as a result of the Darfieldearthquake.[333] On 23 November 2012, IAG declined Mr Bligh's claim under his insurancepolicy in respect of earthquake damage.[334] On 28 November 2012, Mr Bligh engaged Claims Resolution Services ofChristchurch to assist him with the claim. By then, it could be expected that Mr Blighwould have been able to identify with greater particularity the damage he said hadresulted from the Darfield earthquake. Mr Bligh was present on 19 December 2012when the buildings were inspected by two assessors from Canterbury EarthquakeServices. They prepared a report for him dated 22 January 2013. The report includesmeasurements for the walls of the sleep-out and cellar and records damage in thoseareas as being "nil". Mr Bligh said this was possibly because he had not botheredlooking for damage in that area before that inspection.[335] Mr Bligh was present and assisted when the building was inspected for him byMr John Johnstone of Claims Resolutions Services on 23 January 2013. Mr Johnstonemade notes as to what he observed. There is no mention of claimed damage to thecellar walls in his notes or in his report prepared on 16 July 2014. There is no mentionof damage in this area in the joint report to the Court of Mr Smith and Mr Bligh's thenexpert, Mr Csiba, of October 2015.[336] Mr Clark inspected Mr Bligh's buildings again after receiving Mr Bligh'sbriefs of evidence when a claim was being made for the cost of repairs to the cellarwall. Mr Clark said that, during his August 2016 and November 2017 inspections, heasked Mr Bligh where water was coming into the cellar. Mr Bligh told him it was notwater but crystallisation. Mr Clark said he saw signs of this both in August 2016 andNovember 2017. He took a photo of it on 29 August 2016. Mr Bligh also tookphotographs showing this in November 2017. These were produced as part of thecommon bundle. The fact both Mr Clark and Mr Bligh took these photographs isconsistent with Mr Bligh telling Mr Clark that this was the damage he was concernedabout.[337] The crystallisation was described by Mr Smith and Mr Clark as efflorescence.It is the process by which soluble salts emerge on the surface from the brickwork orconcrete beneath. The photographs showing this were produced to me.[338] Mr Smith explained that efflorescence results from water permeating throughconcrete and leaving salts on the surface. He said efflorescence would result from theway the wall was constructed rather than the earthquake. He noted the wall had beencoated with mulseal. It was not suggested by Mr Bligh that this had been done afterthe earthquake. Mr Smith explained that to be effective the mulseal should have beenon the outside of the wall.[339] At trial, Mr Bligh's complaint was not about efflorescence but about waterleaking into the cellar and from a particular spot.[340] There have thus been significant inconsistencies in what Mr Bligh has had tosay about this claimed damage. Again, I find that he has resorted to evidence whichis unreliable and contrived to counter what I accept from Mr Smith is a likelyexplanation for the efflorescence.[341] I am not satisfied that the problems which Mr Bligh had with efflorescencewere caused by an earthquake. I am satisfied, to the extent there was a problem withmoisture coming through the concrete walls of the cellar, this would have pre-existedthe earthquake, hence an attempt to remedy that through the application of mulseal.The evidence does not prove that there has been cracking in the cellar causing waterto leak through into it as Mr Bligh alleged in his evidence.Damage to external paths[342] Insurance under the EQC Act does not cover paths.26 However, the IAG policydoes provide cover for paths.27[343] At the trial, Mr Bligh produced a number of photographs taken between 13October 2017 and 22 January 2018. Approximately nine of those related to gaps attwo sides of a concrete path on the southern side of the house leading to the annex.The photographs show there was a step from the path to the next concrete section ofabout 10 centimetres. The lower section of concrete had separated slightly from thenext section of concrete and a wall alongside the path.[344] Mr Bligh said that, on this section of the path, there was drumming. He said itproduced an echo and vibration that had not been present prior to the earthquake. MrBligh explained he tested this by walking on the concrete in gumboots and comparingthe sound to what he said were undamaged solid concrete slabs.[345] My Bligh's explanation is not a basis on which I can find the earthquakecreated a void under the slab, such as would cause it to subside relative to the concretestructures, in the way depicted in photographs of the area. During his evidence, MrBligh played a video of himself testing the slab in the ground floor area of the homefor drumming. He did this by tapping a rod on the concrete floor and recording thesound. What I saw and heard did not enable me to find that this was proof of therebeing a void beneath.[346] As Mr Finnemore explained in his evidence, ground radiation can be used todetect voids under concrete. No evidence of that sort was presented for Mr Bligh inrelation to the paths.[347] Mr Ashby's geotechnical evidence corroborated the unlikelihood that anearthquake created a void under the concrete path.26 Earthquake Commission Act 1993, s 21(1)(a) and sch 2, cl 16.27 Mr Bligh's State insurance policy (HOM329769613) provides cover for sudden accidental loss tothe home during the period of cover. The home is defined to include "patio, path, tennis court orother permanent domestic structure".[348] The face of the annexe concrete had been painted the same colour as the path.The paint was reasonably intact on the face of the annexe concrete where it wouldhave been more protected from the weather and general wear and tear. The paint onthe path was worn and had disappeared in many places. There was a break betweenthe paint that remained on the path and an adjoining wall.[349] What the photographs showed was that the concrete path at that point haddropped slightly, relative to concrete structures which it had been up against. The gapsbetween the concrete path and the adjoining concrete structures were uniform,indicating the path had subsided in a uniform fashion without any racking, tipping orcracking. It was the sort of subsidence that could obviously occur with an old sectionof a concrete path that might not have been laid on fully compacted and solidfoundations.[350] Another two photographs were of a crack in the path on the western side of thehouse. Mr Bligh said it was earthquake damage because it lined up with a crack inconcrete edging near the western boundary of his property.[351] Mr Ashby, who gave evidence for EQC, has over 20 years' experience ingeotechnical and civil engineering work. When Mr Ashby visited the property, he sawno obvious signs, either in the house or on the ground, that indicated there had beenlateral ground movement with the earthquake.[352] Based on the nature of the ground underlying the property and the level ofshaking recorded in the Waddington area, he would have expected there to have beenlittle or no land disruption at the ground surface. Satellite images following the 4September 2010 event and other reports did not refer to any signs of liquefaction inthe area.[353] Mr Ashby said, the way a crack in the lawn edging lined up with a crack in thepath, was likely to be just a coincidence. The most likely explanation for the crack inthe edging or curb on the western side of the property was that it was close to a largetree. He considered the crack in the path next to the house was unlikely to haveresulted from the earthquake because of what he had to say about potential groundmovement. He said he was reassured of that opinion by the photograph showing thatconcrete edging between the path and the house had not cracked at all. If the crack inthe path had been earthquake-related, he would have expected there to have also beena crack through the concrete edging next to it.[354] I am satisfied the crack in the concrete edging next to the tree was caused bythe tree. The crack that appears in the photographs taken by Mr Bligh in November2017, looks as would be expected if the edging had been pushed up and out by thebase of the tree.[355] Cracks in the path were referred to in the engineers' report to the Court ofOctober 2015. Both engineers referred to there being open joints and vertical offsetat joints. Mr Smith considered those to have been pre-existing and the result of poorworkmanship. His explanation for not treating them as earthquake damage was thatthere had been no liquefaction or subsoil consolidation and historical vegetation wasevident. Mr Csiba said there were a number of pre-existing cracks but there had beensignificant exacerbation. His explanation for this was that:According to the homeowner, the damage was caused by earthquakes. Theobserved vegetation is minor and could be reasonably expected to grow in oneto two years according to its size. I believe it is evident that the vegetationstarted to grow after the earthquakes.[356] Mr Kearney offered no evidence as to why the crack which had beenphotographed or the subsidence of the slab outside the kitchen had to have been causedby the earthquake.[357] When I visited the property during the trial, I saw other cracks in the path,similar to the one which Mr Bligh claims was earthquake damage. The crackingappeared to be old and Mr Bligh does not claim these other cracks were caused by anearthquake.[358] Mr Smith considered the condition of the path to the west of the annexe wasthe result of long-term settlement and not due to any earthquake shaking. Mr Csiba,for Mr Bligh, acknowledged the cracking in the paths pre-existed the earthquakes.[359] With all the evidence I have heard and what I have seen of the areas of concrete,as shown in the evidence produced by Mr Bligh, and with what Mr Ashby and MrSmith have had to say relevant to this, there is no basis on which I can find that thecracking Mr Bligh has referred to or the subsidence of the slab near the annexe wascaused by an earthquake.[360] I consider Mr Bligh's evidence as to one crack in the path on the western sideof the house was another example of him making a claim based on a belief orsupposition, a belief which it has been demonstrated was not well-founded.Settlement of the eastern portion of the garage slab as well as cracking with horizontaland vertical displacement in this areaUndulation of garage roof sheetingWater marks at discrete intervals on the roof purlinsRacking of door at western end of northern face of garage, latch vertically offset fromstrike plateGarage door now catches on the foundations at the western endSome exacerbation to slab cracking and undulations, as well as cracking to thefoundation beam at the western end and very minor undermining of the foundation atthe eastern endThe western end of the garage wall has moved out of verticalThe lock and catch to the door on the north face of the garage towards the westernend no longer alignBargeboard at both the western and eastern end of the garage have fallen off.(i) Slab cracking[361] Mr Bligh says there is cracking in the south-east corner of the garage causedby the earthquake. He also said there was drumming in the slab in the south-eastcorner of the garage which suggested there was a void under that part of the garage.[362] Mr Kearney noted that floor slopes in the western portion of the garageappeared to be historic. He said the eastern portion of the garage had undergonesignificant settlement combined with cracking. He was of the view that most of thecracking on the eastern side, including the cracking in the south eastern corner of thegarage, would have pre-existed the earthquake and that any further earthquake damageto that cracking would have been an exacerbation of what was already there.[363] The geophysicist, Mr Finnemore, identified voids under the garage. There wasa significant void in the south-east corner where there was cracking. There were alsosmaller anomalies which Mr Finnemore considered were likely to be from old utilities,rotted tree roots and other debris material. Reinforcing mesh or bars were not observedin the garage.[364] Mr Ashby considered it highly unlikely from a geotechnical perspective thatany sub-floor void under the concrete slabs in the garage would have been caused byan earthquake. I accept his evidence.[365] Mr Smith said the cracking in the south-east corner of the slab in the garagewas not typical of shrinkage cracking or earthquake damage in the concrete in thatarea. He considered that colour variations in the concrete on either side of one of thosecracks indicated the crack had existed for a considerable period before the Darfieldearthquake. Mr Smith probed the ground through a control joint where loose top-soilwas present to a depth of at least 100 mm below the underside of the slab, indicatingthe slab was poured onto a substandard sub-base. He considered this was the likelycause of the cracking which he observed in that area. He was of the view that, if thecracking had been initiated after a new foundation had been constructed for the portalframe, the cracking would have begun at the corner of the portal frame foundationbecause that foundation was a stress concentration point.[366] Consistent with Mr Smith's observation as to the nature of the ground underthis part of the slab, Mr Ashby said the discharge of storm-water directly to the ground,in close proximity to the garage foundation in the south-east corner, has the potentialto cause cracking and/or settlement of material adjacent to foundations which, in turn,could result in settlement and damage to the foundations and concrete floor slab.[367] Penetrometer tests established that the ground in the south-east area around thegarage was significantly softer than the area to the west of the garage.[368] For the detailed reasons explained by Mr Ashby and Mr Smith, I accept it isunlikely there was any settlement of the garage slabs or voids created as a result of theDarfield earthquake or the lesser subsequent earthquakes.[369] Mr Clark took photographs of cracks in the garage floor on 8 December 2010.The cracks had been marked with chalked crosses when he carried out this inspection.[370] Mr Clark inspected the cracks in the garage at that time. He said he ran hisfingers across the cracks and they did not have the sharp-edged feel of fresh cracks.There was debris and detritus in the cracks, consistent with the cracks pre-existing theearthquake.[371] There was one pronounced crack in that area. It was less than 1 mm wide. MrClark felt that crack by running his thumb over it and examined it with a smallmagnifying glass. He said the edges of the crack were well worn and rounded and, inhis view, the crack must have predated the 4 September 2010 earthquake.[372] The cracks in that area were photographed by Mr Wilkinson when Mr Blighshowed them to him on 13 January 2011. Mr Wilkinson, in his second report, hadreferred to seeing small freshly broken shards of concrete adjacent to the crack. Inthose photographs, there are portions of the cracks which look like they could be newerbut the photographs are not so clear as to disprove what Mr Clark said he observedand felt on 8 December 2010.[373] On the evidence, I find that most, if not all, of the cracking in the south-eastcorner of the garage slab was there before the earthquake. It may well have resultedfrom the development of a void under the slab in that general area caused by wateringress or the slab having been laid on inappropriately prepared ground. It is possiblethe cracks did increase as a result of the earthquake, but the mere possibility of this isnot sufficient. If the cracks did become more extensive, given the number of cracksthat were already there, I do not accept the change affected the underlying strength ofthe slab in that area. The garage slab did not have cosmetic or aesthetic value so anyextension of the cracks would not have affected the slab in that way. Mr Bligh has notproved that any of the cracking in the concrete floor of the garage was caused by anearthquake.(ii) The roof[374] Mr Bligh says the roof of the garage was damaged in the earthquake, causingleaks. He claims that the nails in the corrugated iron roof all lifted as a result of theearthquake and had to be refixed.[375] Mr Bligh says he had to go onto the garage roof and had to bang down everysingle nail. Mr Bligh says that some of the nails have come up so he needs to "put adifferent type of fixing there now". Mr Bligh says he thought he had told MrWilkinson about the roof in September 2010.[376] Mr Bligh drew Mr Wilkinson's attention to cracking in the garage when he andMr Wilkinson inspected the property again at the request of Mr Bligh on 13 January2011. There is nothing in Mr Wilkinson's report to indicate Mr Bligh brought to hisattention at that time any damage to the roof as a result of the earthquake.[377] The Canterbury Earthquake Services' report of 22 January 2013, prepared aftertheir assessor's inspection of the property with Mr Bligh on 19 December 2012, saidthe areas inspected included "fences, driveway, garage, pathways, exterior and interiorof dwelling room by room". There were photographs of cracks on the garage floorbut none of the roof. Mr Bligh had accepted that the report reflected his views aboutthe damage that was there. The report recorded, as to the garage, "roof damage, nil".As to the floor, "cosmetic cracking". As to the garage "tilt-a-door, adjustor, paint doorsand jams".[378] Mr Bligh's engineer, Mr Csiba, did not identify that there was any claimedearthquake damage to the roof in the engineer's joint report to the Court of October2015.[379] EQC's record of contact on Mr Bligh's claim indicates that, during 2012,Hayden was contacting EQC as an advocate for his father. Hayden had provided awitness statement before the earlier trial in which he was going to say he had helpednail down the garage roof. That brief had been provided to the other parties as hisevidence for the actual trial.[380] Mr Bligh said in a brief of evidence prepared for the hearing that he and hisson Hayden had nailed down the roof of the garage after the earthquakes. During thehearing, he altered his brief to remove the reference to his son Hayden assisting withthe work. He said he did it all by himself, hammered down every single nail. He saidit had been very difficult for him because of the way he had been affected by strokes.He said his son had been going to give evidence at the hearing but was too upsetbecause of major matrimonial problems and custody issues. Through cross-examination, it was established that Hayden had told Mr Bligh's previous lawyers thathe was also reluctant to give evidence at the time of his earlier trial.[381] Mr Bligh's credibility in relation to this claim is thus put in doubt because ofhis delay in making any claim for this alleged damage. It is also affected by thesignificant inconsistency with regards to whether or not his son Hayden was involvedin repairing the roof. That inconsistency is important because Hayden had helped hisfather as an advocate for him in dealings with EQC. Mr Bligh also said his son was aroofer. Because of his ill-health and disabilities, it would have been difficult for MrBligh to do the repair work himself. It does appear that, at several points, both Haydenand Mr Bligh were willing to say that Hayden had assisted Mr Bligh in carrying outrepairs to the roof as a result of earthquake damage. On two different occasions,significantly apart in time, Hayden has not been willing to come to Court to confirmthat evidence. Mr Bligh has then changed his evidence as to his son's involvement.[382] In all these circumstances, it would have been appropriate for me to draw aninference adverse to Mr Bligh that his son would not support him with regards torelevant aspects of his evidence as to the roof.28[383] There was further justification for me to draw such an inference as a result ofinformation which Mr Lynn considered he was obliged to provide the other partieswhen it appeared he would be calling Hayden Bligh as a witness but did not have anup-to-date signed brief from him. In that memorandum, he said Hayden Bligh wouldbe saying, contrary to his earlier brief, that:28 For cases where negative inferences have been drawn from the failure of a party to call a witness,see Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731. Cited more recently inNisha v LSG Sky Chefs New Zealand Ltd [2015] NZEmpC 171, [2015] ERNZ 1124 Yang v Chen(No 2) [2011] NZCCLR 13.(a) he is not able to identify changes to the cracking to the first floor externalbrickwork as a result of the earthquake;(b) he is unaware as to whether or not there are new cracks in the garage floorslab as a result of the earthquake;(c) he did not assist his father to re-nail nails in the garage roof after theearthquake; and(d) he does not recall assisting his father removing plaster from the upstairsbedrooms.[384] It was indicated that he would be giving evidence consistent with other aspectsof the claims his father was making.[385] Mr Smith inspected the garage roof during his November 2017 site visit. Hedescribed it as being in reasonable condition but with defective and loose fixings,poorly installed flashings and poorly aligned sheets. He did not consider any of thesedefects to be earthquake damage. Some fixings were partially withdrawn as he saidcould occur under strong wind loadings.[386] Mr Smith explained that the earthquake was less likely to have caused damageto the roof of the garage because it was a light-weight structure, somewhat flimsy atthe western end, but stronger where very substantial portal frames had been installedat the eastern end. He explained that, with a light-weight structure, the force anddistortions on a building associated with an earthquake are much less.[387] Mr Clark took photographs of an area of the roof on 27 November 2017. It isapparent from these photographs that there was some new corrugated iron sheeting onthe roof at that point. Some tin flashing at the end of the garage was then held downby heavy stones. At that time, there were a range of different nails or fastenings in theroof. There was also the odd hole which had been filled with some form of bonderfill. Some lead-head nails had been overdriven so that the head of the nail had comethrough the lead cap. Mr Clark described it as a very aged roof with some misplacedsheets. When I viewed the garage during the hearing, there appeared to be sagging inthe roof beams in the western two thirds of the garage.[388] The garage is old. Mr Kearney agreed the framing on the western wall isinadequate. The supports for the roof vary over the width of the building. Only someareas of the garage have a timber sarking under the roof cladding. Mr Clark said therewere holes in some of the roofing which had been sealed, consistent with some partsof the roofing having been used previously and salvaged. The roof has a low pitchwhich could have made it more prone to leaks. In 2017, Mr Clarke observedundulations in the roof of the garage.[389] The corrugated iron could have been lifted by the wind, forcing nails up. Thegarage is exposed to nor-west winds. In 1992, Mr Bligh's then engineer, Mr Lewis,provided plans for the erection of the steel portals in the garage and told Mr Bligh thathe had used steel work because "a steel shape provides some lateral resistance to windload whereas a timber beam and post would only take snow loads". Before the steelportals were installed, the roof had only timber support and had been subjected to snowloading that could also have affected the roof.[390] In 1992, the Lewis and Barrow Limited's plans for the strengthening of thegarage proposed that new frames would be installed "to reduce purlin spans andprovide more wind resistance".[391] There may well have been some loosening of the nails, some undulations andsome leaks in the roof, however, the evidence has not been sufficient to prove thatsuch defects in the garage resulted from the Darfield earthquake or later lesserearthquakes.(iii) The tilt door[392] The steel tilt door was installed in conjunction with the erection of the steelportal frames. It is a wide doorway, amply wide enough for two vehicles to go through,but with a doorway for pedestrian access within the tilt door at its western end.[393] Mr Clark used a laser to check whether the door was level when he examinedit in November 2017. Using a level, he established that the door was horizontallylevel. At that time, however, he confirmed that the bottom of the door at its westernend scraped against the concrete floor beneath it.[394] Mr Bligh says there is a gap at the bottom of the eastern end of the door but itsticks on the concrete at the western end. He believes the ground has moved andpushed up the concrete slab at one end.[395] Mr Kearney's theory regarding the catching of the door is that the south-eastportal frame supporting the lintel had settled due to earthquake shaking. This had, inturn, caused the garage doorframe to twist out of shape and for the western end of thegarage door to scrape on the ground.[396] Mr Bligh did not point out this problem with the door as being an item ofearthquake damage when he showed Mr Wilkinson the marked cracks in the garagefloor slab on 13 January 2011. Such damage is not referred to at all in Mr Wilkinson'sreport referring to that visit. It was not mentioned as an item of earthquake damage inthe Canterbury Earthquake Services' report of 22 January 2013 or by Ms Csiba in thejoint report of the engineers to the Court in October 2015.[397] Mr Ashby was clear that settlement of the south-east portal frame was veryunlikely to be due to earthquake shaking. He was of the opinion that the foundationsfor the portal frame would have been such that, given the ground conditions there,those foundations would have been unlikely to settle as a result of the earthquake.[398] Lewis and Barrow Limited's designs for the portal frame specified that all workwas to comply with relevant New Zealand standards, foundation depths shown on theplans were minimum only and all foundations were to extend down to a solid bearing.[399] The photographs do not indicate there had been any movement in the slabs ofconcrete below the garage door.[400] Mr Clark explained that tilt doors can shift slightly over time, sometimesthrough changes in the puck or wheel that runs along the rail as the door retreats whenit is lifted. Mr Bligh has not had a door installer attempt to adjust the door to stop itscraping the concrete below.[401] Mr Clark was of the opinion that, to the extent the tilt door had dropped at itswestern end relative to the concrete beneath, this was likely to be the result of normalwear and tear. In particular, he pointed out that the drop was at the end of the tilt doorwhere the pedestrian access doorway was situated. Downward pressure could beapplied at that end of the tilt door through pedestrians stepping on the bottom framingof the pedestrian doorway.[402] Given the general state of the garage floor before the earthquake, as noted byMr Kearney, it cannot be assumed that the concrete below the door was level at thetime the door was installed. A tilt door can however be installed and adjusted to copewith any non-level or perpendicular alignment of the frame within which it sits. Thedoor could have been appropriately adjusted when it was installed. Mr Clark said itwould take a door installer conversant with the mechanisms of a door like this only anhour or two to readjust the door so as to avoid the catching which now occurs.[403] Given the overall condition of the garage, the obvious way in whichmaintenance on the garage had been deferred over a number of years and the delay inMr Bligh asserting that this catching with the door was the result of an earthquake, hehas not been able to prove that the catching of the door on the concrete beneath wascaused by an earthquake.(iv) Changes to the western end of the garage[404] Mr Bligh claims the bargeboard at the western end of the garage fell offbecause of earthquakes and needs to be replaced as earthquake damage.[405] The bargeboards remained on the ends of the garage after the September 2010earthquake. When he saw the garage in December 2010, Mr Clark noticed thebargeboards at either end were covered in lichen. Mr Bligh accepted that parts of themwere rotten. Mr Bligh agreed the February 2011 earthquake was not as forceful as theDarfield earthquake at his property. There was no mention of the bargeboards havingbeen damaged in any earthquake at the time he prepared his briefs of evidence for theOctober 2016 hearing.[406] I accept that, at some point after the earthquakes, the bargeboards at each endhave, wholly or partially, fallen off the building.[407] There is no evidence as to precisely when Mr Bligh noticed the bargeboardshad fallen from the garage, relative to any earthquake. The evidence simplyestablishes that bargeboards were on the garage walls before the Darfield earthquakebut in a severely deteriorated state. They have fallen off at some time since the 20February 2011 earthquake. The loss of the bargeboards was mentioned for the firsttime as damage resulting from the earthquake in Mr Bligh's third brief of evidenceprepared subsequent to the scheduled first trial and for the second trial.[408] With the evidence as it is, I cannot find that the bargeboards fell off the garageas a result of an earthquake.[409] On the northern front of the garage, at its western end, there is anotherpedestrian doorway. It is timber. Mr Bligh claims there has been a racking or tippingof the door relevant to the frame caused by the earthquake which means the latch isvertically offset from the strike plate so that the latch no longer works. He producedphotographs taken between 13 October 2017 and 22 January 2018 which show this.[410] This door is hinged directly onto a post at one side of the door rather than aconventional doorframe. There is a gap between the top of the door towards theeastern side and the beam above it. The bottom of the door has rotted somewhat.Potentially, the door could have dropped a little through age and general wear and tear.[411] It was possible an earthquake could have caused the pedestrian door at thewestern end of the garage to drop, especially so with the timbers on one side of thedoor being rotten at the bottom. Mr Smith considered the movement of that door was"absolutely predictable" but it would not have taken an earthquake to cause this,although it was possible an earthquake could have caused the drop.[412] Again, the first time a claim was made in relation to this problem was in MrBligh's third brief of evidence, prepared for the second trial. In November 2017, thedoor latch still worked. The door had however dropped and the door latch did notwork when Mr Clark visited the property during the hearing.[413] Mr Clark said that the door latch was working and did properly align when hevisited the property in November 2017 with Mr Smith. When Mr Smith was inside,he inadvertently became locked inside the garage when the door had slammed shut.Mr Smith could not find the light switch and could not open the lock because itrequired a key. Mr Clark found the key and said he was able to open the door with aturn of the key in a straightforward manner. He said the latch then functioned. Itlocked and opened.[414] Mr Clark's evidence as to the latch working well in November 2017 iscompelling. On the basis of that evidence, any drop in the door, as shown by MrBligh's more recent photographs, could not have been caused by an earthquake.[415] In his third statement of claim, Mr Bligh's pleaded particulars of allegedearthquake damage included the western wall of the garage moving out of vertical.Mr Smith accepted there could have been some movement of posts at the western endof the wall due to the earthquake but concluded that much, if not all, of the deformationpre-existed the earthquake.[416] Both Mr Smith and Mr Kearney agreed the western wall of the garage wassubstandard. This was clear from viewing the framing at that end of the garage. Thelack of maintenance at that end of the garage was also apparent through thedeterioration on the bargeboard outside and the way flashings on the roof at the end ofthe garage were held in place by weights.[417] With the western end of the garage being so poorly constructed, and with ithaving been so poorly maintained, the evidence does not prove that it is likely anylateral movement of the western wall or the racking of the door at the western end ofthe garage resulted from an earthquake.[418] Accordingly, Mr Bligh has been unable to prove that his garage sufferedearthquake damage in the various ways alleged in his statement of claim.Unknown damage to the bore[419] Mr Bligh pleaded that the earthquake had caused "unknown damage to the boreand pump so that it now produces cloudy water". He alleges the pump valve nowmakes excess noise and water is produced at a reduced rate. Mr Bligh complains thathe told EQC about the state of the water but EQC have not investigated this. Hisevidence is that he does not "know exactly what the damage is". As Mr Woodsubmitted, he has led no evidence from anybody who does. There is thus no evidenceof any physical loss or damage to the structure of the bore as the direct result of theearthquake. On that basis, his claim against EQC must fail.[420] I also accept the submission for EQC that the EQC Act does not guarantee asupply of potable water. The insurance of residential buildings under s 18(1) of theEQC Act extends, through paragraph (d) of the definition of "residential building" ins 2(1) to "all water supply services and structures are pertinent thereto". What areinsured are thus the physical assets that provide the service, not the provision of wateritself. The fact there is a discolouration of Mr Bligh's water or a reduced flow of waterdoes not, of itself, show there has been physical loss or damage to the structure of thebore, the metal tanks or the stand they sit on.[421] In August 2014, Mr Bligh discussed an issue with the bore with Mr Clark. MrBligh explained he could not show what the issue was because the bore was not turnedon at the time but the problem was with the potability of the water.[422] Mr Clark inspected the bore tanks and metal stand structure during hisNovember 2017 inspection. It was possible the tank was out of level but he said hecould see no signs that the structures had been damaged by an earthquake. If the watertower had moved as a result of earthquake shaking, he would have expected to seecontortion or buckling of the metal stand and movement of the pad mounts. He didnot see any of those signs.[423] Mr Bligh has not proved there was earthquake damage to the bore, water tankor tank stand.Summary of conclusions[424] Given the difficulty I have with Mr Bligh's credibility, it has not been possiblefor Mr Bligh to prove there was earthquake damage to his home and garage simplythrough his assertion that relevant parts of his home and garage were in a particularstate before the earthquakes and, on his observation, in a different and damaged stateafter the Darfield or subsequent lesser earthquakes. On all the evidence that has beenpresented, Mr Bligh has been unable to prove there was earthquake damage to hisproperty for which either EQC or IAG could be liable.[425] It is thus not necessary for me to decide whether the damage that is apparentin the first floor brick walls could be remedied only with the application of shotcreteto both sides of the walls and installation of Helifix ties, as Mr Kearney suggestedwould be necessary, or the more localised and much less expensive repairs that MrSmith said would be sufficient. I also need not decide whether the reasonable repairsof damage to the brickwork would require plastering over both the ground floor andfirst floor walls for the sake of aesthetic uniformity when there has been no suchuniformity in the exterior appearance of the walls since at least Mr Bligh's removal ofplaster from most of the first floor walls after the concrete beam was installed.[426] It was also argued for Mr Bligh that, because the shotcrete application is of astructural nature, that work would require a building consent and a building consentwould not be issued for such alterations if there were other parts of the building whichare not structurally sound. It was submitted that the first floor flooring is notstructurally sound, so current regulations would require the replacement of that floor.That would necessitate significant rebuilding of internal walls, consistent with anobligation on IAG to repair damage to a condition as new in accordance with what isrequired to meet current regulations. Because I have held EQC and IAG have noliability for such defects as are apparent in the building, I need not deal further withthose submissions.[427] Mr Bligh also made a claim against EQC and IAG for general damages in thesum of $25,000 because of the way their conduct had caused him substantial distress,inconvenience and mental anguish. There is no doubt that Mr Bligh has been intenselyaggrieved at EQC's refusal to accept his claim and this has caused him considerabledistress. I have held that both EQC and IAG have been entitled to resist his claims.The evidence also did not establish that either EQC or IAG had acted unreasonably orin breach of their contractual obligations in a way that could give rise to an entitlementto general damages.[428] There were times when, in response to communications from either Mr Blighor his son Hayden, who was acting as his advocate, certain EQC employees respondedas if EQC were, at that time, still considering his claim when in fact it had alreadybeen declined. The miscommunication could not be attributed solely to inefficiencieson the part of EQC staff. There would have been significantly less potential for suchconfusion if, at the time such enquiries were made, the EQC staff were told that MrBligh's claim had been declined and the communication was in relation to that.[429] I note also that, after Mr Bligh's claim had been declined, EQC had indicatedthey would consider any report from any engineer that Mr Bligh might instruct. Nosuch report was provided.[430] EQC suggested Mr Bligh could take advantage of their mediation services. Hedid not do this, because he said he had heard from others it would be a waste of time.Litigation undoubtedly became inevitable when, with the support of CanterburyEarthquake Services, Mr Bligh claimed his home had suffered earthquake damage toan extent that required EQC and IAG to meet the costs of a rebuild. This then led toMr Bligh's first statement of claim dated 23 July 2012 in which he sought $963,000.71from EQC/IAG and $25,000 from each by way of general damages. That claim wassubsequently amended on 12 December 2014 to a claim for remediation costs of$596,249 and general damages of $25,000 against each defendant. It is also apparentfrom all the documents put before me that, in the approach to the October 2016hearing, EQC did make an offer that would have brought this dispute, which hascaused Mr Bligh such distress, to an end and, as it has turned out, would have beensignificantly to his benefit.[431] Having failed to establish he suffered loss for which either EQC or IAG areliable, Mr Bligh's claim for general damages and also an order that IAG pay the feeshe incurred with engineers, surveyors, building consultants and legal advisers inconnection with these proceedings must also fail.[432] Mr Bligh was entitled to continue with his claim. He was able to do so withthe most conscientious and thorough assistance of his counsel. To succeed with hisclaim, he had to meet the burden which was on him to prove that the Darfieldearthquake caused damage to his property. He has not been able to do so.[433] Accordingly, judgment is given for both EQC and IAG on the claims againstthem. If there is no agreement over costs, those parties seeking costs must filememoranda in support by 21 September. Reply memoranda for Mr Bligh are to befiled within four weeks of their receiving the memoranda seeking costs. Any reply inresponse to the memorandum from Mr Bligh is to be filed within two weeks of theirreceiving his memorandum.[434] The memoranda are to be no longer than 10 pages but associated with themand outside that page number is to be a chronology, to the extent it is relied upon, anda bundle of any documents that are being referred to, to the extent those documentsare not already in the bundles which are before the Court.Solicitors:GCA Lawyers, ChristchurchChapman Tripp, WellingtonDuncan Cotterill, Auckland.