YOUNG v TOWER INSURANCE LIMITED [2016] NZHC 2029

YOUNG v TOWER INSURANCE LIMITED [2016] NZHC 2029 [30 August 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2015-409-000222[2016] NZHC 2029BETWEEN GREGORY PETER YOUNG ASTRUSTEE OF MCARA YOUNG TRUST& MALLEY & CO TRUSTEESLIMITED AS TRUSTEE OF MCARAYOUNG TRUSTPlaintiffsAND TOWER INSURANCE LIMITEDDefendantHearing: 29 August 2016 (Day 1)Appearances: P F Whiteside QC and H T Shaw for PlaintiffsM C Harris and ATB Joseph for DefedantJudgment: 30 August 2016JUDGMENT OF GENDALL J[1] Day one of the 10 day trial scheduled for this proceeding took place yesterday, 29 August 2016. At that time I heard submissions from counsel with respect to an application brought by the defendant challenging the admissibility of parts of the reply brief of evidence of the first-named plaintiff, Gregory Peter Young (Mr Young). This reply brief comprised something in excess of 60 pages.[2] The objection by the defendant to aspects of this brief and its challenge to the admissibility of parts of the brief was substantial.[3] First, the defendant objected to what it describes as an attempt by Mr Young who is an architect to qualify himself as an expert in this proceeding. On this aspect, Mr Whiteside QC counsel for the plaintiffs properly accepted that the plaintiffs here could not engage one of their own, in this case Mr Young, as an expert witness, such that he would be able to give expert opinion evidence which was admissible unders 25 Evidence Act 2006. Further, Mr Whiteside QC indicated that the plaintiffs do not make any application under s 26(2) of the Evidence Act 2006 to allow Mr Young here to give expert evidence pursuant to the Code of Conduct for Expert Witnesses in High Court civil proceedings.[4] In this case obviously Mr Young is one of the plaintiff parties and is a clear advocate for the parties. Here, I accept that Mr Young is unable to give expert opinion evidence as an expert in terms of s 25(1) Evidence Act 2006. He would be quite unable to assist the Court with the impartiality expected of experts.[5] Counsel for the defendant contends that Mr Young's reply brief is alsoobjectionable because certain parts of it contain inadmissible hearsay, argument, material in the nature of submissions and unsupported conclusory statements. These parts of the brief, it is said, are objectionable on their own terms but also emphasize the fact that they are inappropriate here.[6] Having now had an opportunity to consider the defendant's complaintsrelating to all aspects of Mr Young's reply brief I accept that in some cases thechallenged material is objectionable and it must be ruled as inadmissible. I will deal with these aspects in a schedule following.[7] Before doing so, however, it is useful to note additional arguments advanced before me by Mr Whiteside QC on behalf of the plaintiffs with respect to this brief put forward for Mr Young.[8] First, Mr Whiteside QC noted that Mr Young without question has considerable professional expertise as an architect and that here no-one knows the house in question better than Mr Young because he designed it, was involved in its construction and has lived in it ever since, including after the September 2010 and February 2011 earthquakes. To this extent, Mr Whiteside QC contends that Mr Young in his evidence is clearly able to address the extent of damage to theplaintiff's home and what is required to repair it, such that the Court can beconsiderably assisted by this.[9] Secondly, Mr Whiteside QC endeavoured to argue that Mr Young here is entitled to give opinion evidence under s 24 Evidence Act 2006 as here in many instances his evidence which might be seen as opinion evidence can be accepted when Mr Young's perceptions and statements of fact are conclusions in themselvesor where, as Mr Whiteside QC contends, there is a mixture of inference and fact that cannot be separated.[10] On all of this there can be no doubt that Mr Young is entitled to give evidence as to what he has seen by way of damage to his family home and his professional expertise, it is said, enables him under s 24 of the Evidence Act 2006 to express an opinion as to how and why that damage has occurred. This, it is said, obviouslyleads to Mr Young's ability to state an opinion as to what is required to remedy that damage.[11] To a limited extent, I accept some of the submissions advanced by Mr Whiteside QC in this area in situations where Mr Young's perceptions andstatements of fact are conclusions in themselves or where there is a mixture of inference and fact that simply cannot be separated – on this see Richard Mahoney and Others The Evidence Act 2006: Act & Analysis1.[12] A caveat to these conclusions, however, will arise over a range of mattersincluding what Mr Whiteside QC describes as "survey evidence" which Mr Youngendeavours to advance and certain conclusory and opinion matters to which objection is taken.[13] These will become apparent in the schedule attached whereby I outline mydecision and brief reasons on the defendant's particular challenges.[14] Before turning to this, however, I need to note that the plaintiffs here before me accepted certain of the challenges to the following paragraphs of Mr Young'sreply brief and agreed that they were to be removed. An order to this effect is now made. The paragraphs in question are:1 Richard Mahoney and Others The Evidence Act 2006: Act & Analysis (3rd ed, Brookers, Wellington, 2014) at [EV24.02]14, 21 (last sentence); 22 (first sentence); 24 (first sentence); 34, 39 (b) – (g), (m), and the second sentence in (h); as well as all the words in that subclause from thefirst mention of "connecting"; 46, 50.68; 51.16 (last four words); 51.39; 51.133;51.136; 51.138; 51.143 (second sentence); 51.150; 51.158; 53.2 (second sentence); 63.14; 63.78 (last sentence); 63.84; 63.92 (second clause); 63.93; 63.97 (second sentence); 63.99 (last sentence); 63.105 (last clause); 65.51; 65.73; and the references to warranties in 68.12.[15] There are also, as I understand it, some amendments proposed by the plaintiffs which have been agreed to by the defendant, these being to paras 51(144) and 51(193).[16] Turning now to the outstanding objections from the defendant to many of theparagraphs of Mr Young's reply brief I now set out in the schedule my decision onthese objections. In cases where the objection is upheld, that part of the evidence is to be removed as inadmissible and an order to this effect is now made. In caseswhere the objection is rejected, that part of Mr Young's brief is to remain....................................................Gendall JAddendum[17] This is an addendum to my judgment dated today, 30 August 2016, regarding admissibility issues. Regrettably, in my haste to have this judgment and the schedule completed I omitted from the schedule one item. This related to paragraph 51(135)(highlighted) of Mr Young's reply brief of evidence.[18] This was objected to by the defendant upon the basis that it is said it is argumentative and it is inadmissible opinion purporting to be of an expert nature. My decision with respect to that matter is as follows:Again, the comment in sentence 1 of this particular paragraph is of little help, it is unsubstantiated and is inadmissible and I so rule. Sentence 2, however,is a statement of fact up to the word "longer" in the sentence but the rest ofthis sentence is speculation and is to be deleted. Subject to that, sentence 2up to the word "longer" is admissible and is to remain....................................................Gendall JSCHEDULEParagraphs of Mr Young's Reply BriefPara No. Objection by Defendant Why Admissible/or Whether Objection Accepted2-7 Plaintiff trying to qualify himself as anexpertAdmissible – entitled to give evidence of expertise andexperience11-13 Submission, argumentative Admissible – statements of fact generally15-17 Submissions, argumentative, materialnot in replyParagraph 16 also containsinadmissible hearsay (highlighted)Objection accepted – 15 and 17 are inadmissibleopinion evidence16 is in evidence - admissible survey evidence20 Argumentative, Material not in reply Admissible – accepted now by defendant as admissible21 Submission, Argumentative Objection accepted. Not generally helpful.Inadmissible opinion evidence22 Submission, Argumentative (a) Agreed, first sentence removed(b) Defendant accepts remainder inadmissible23 Argumentative, submission ("trying toavoid repairing the damage");inadmissible expert opinionAdmissible – Mr Young is entitled to clarify why hedoes not accept Mr Sinclair's statements – his responseis factual. But words in lines 1-2 after "claim" areargumentative and to be deleted.24– secondsentenceSubmission, Material not in reply Admissible – factual statement within Mr Young'sknowledge26-27 Inadmissible hearsay, Irrelevant Objection dismissed – admissible hearsay under s 18Evidence Act 2006, I accept would be undue expenseand delay if required to call these extra witnesses28-32 Inadmissible opinion purporting to beof an expert nature. Argumentative,submissionAdmissible as essentially factual statements36-27 Inadmissible expert opinion Admissible – as essentially factual statements38 Inadmissible hearsay Objection accepted – inadmissible hearsay39(a)-(h)(excludingsecondsentence andlast 4 lines ofpara i, j and lInadmissible opinion purporting to beof an expert natureAdmissible – facts within Mr Young's knowledge ofthe property and generally.39(k) (firsthighlight)Inadmissible hearsay Admissible – essentially factual statement45(highlighted)Argumentative, Submission,inadmissible opinionA generally minor matter but objection upheld - lasttwo lines of 45 to be deleted.50(9) and (10) Argumentative, Speculative Again, generally minor matters. But argumentativeand not useful. Objection upheld. Last two lines of50(9) and first three lines of 50(10) to be deleted50(45) Argumentative, Submission Admissible – As again, generally an inconsequentialmatter50(61) Argumentative, Speculative Once again, generally a relative minor issue. Butsecond sentence of 50(61) is speculative, is not usefulhere and is to be deleted50(71) Argumentative, Submission First sentence is factual and is admissible. Remainderof 50(71) is speculation generally, is unhelpful here,and is to be deleted.51(4), (16)(highlighted)Whole section – inadmissible expertopinion apart from 50(38) and (65) and(121) first sentence. SubmissionAlthough much of this material is addressed by experts,generally it contains statements of fact and isadmissible. Objection overruled.51(39) Repetitive, Argumentative, Submission Last sentence by agreement has been deleted.Remainder is repetitive, pure opinion and is unhelpfulhere. It is inadmissible and is to be deleted.51(59) Inadmissible opinion purporting to beof an expert nature. SpeculativeAdmissible, as generally statements of fact51(65) Inadmissible opinion purporting to beof an expert natureAgain, admissible as a pure statement from Mr Youngof fact51(87)-(89) Inadmissible opinion, Repetitive,SubmissionAgain, generally statements of fact from Mr Young'sperspective as home occupier and otherwise –admissible51(102)(highlighted)Inadmissible hearsay Again, generally statements of fact and admissible51(123)(b) Submission, Repetitive Again, generally a factual statement by Mr Young ashome occupier – admissible51(129) Inadmissible opinion purporting to beof an expert natureAgain, the comment in sentence 1 is of little help,unsubstantiated and is inadmissible. Sentence 2 is astatement of fact up to the word "longer", but the resetof this sentence is speculation and is to be deleted.51(142)-(143) Inadmissible opinion purporting to beof an expert nature(142) is inadmissible opinion and is to be deleted as isthe first sentence of (143)51(144) Submission Generally inconsequential as agreed to be modified it isadmissible51(145) Argumentative, Submission,Inadmissible opinionAgain, generally inconsequential but the statement inthe second sentence is generally known widely andcommonly. – paragraph is admissible51(147) Inadmissible opinion purporting to beof an expert natureAgain, generally factual statements and admissible51(156) Submission Again, largely a statement of fact and admissible51(159) Submission, Inadmissible opinion, Notsubstantially helpfulAgain generally a factual statement from Mr Young ashome occupier with intimate knowledge of the houseand its history.51(163) Argumentative, Inadmissible hearsayand SpeculativeGenerally factual statements in part and admissibleopinion evidence (although some might be slightlydoubtful). Possibly offending issues here are minor.Objection dismissed. Paragraph is admissible51(170) Repetitive, Argumentative,Submission, Inadmissible opinionInadmissible – this is submission and no doubt will beaddressed by other expert evidence51(190) Argumentative Sentence 1 is argumentative, adds little and is to bedeleted. Sentence 2 is broadly factual and is to remain51(192) Inadmissible hearsay This purports to reply to and contradict Mr Sinclair'sevidence. It relates to examinable witnesses and isadmissible.51(193) Inadmissible opinion purporting to beof an expert natureThis relates generally to Mr Young's factual knowledgeas home occupier and is admissible with themodification proposed by Mr Whiteside QC.51(231) Submission Inadmissible – this adds little here and in sentence 2 isgenerally submission only51(233) Argumentative Sentence 1 is a factual response to Mr Sinclair'sevidence and is admissible. Sentence 2 adds nothing,is speculative and is to be deleted.51(242) Inadmissible hearsay, Argumentative Last sentence is speculative, unhelpful andinadmissible. Remainder is a legitimate response andis admissible.52 Whole section – Inadmissible expertopinion save for 52(5.3)This section again is generally factual from Mr Young'sown knowledge as occupier of house. It is admissibleexpect for the sentence beginning "Nick Harwoodwas"52(8)(highlighted)Inadmissible hearsay Again, generally factual and admissible53 Whole section – inadmissible expertopinionAgain, this whole section is generally factual and isadmissible53(16)(highlighted)Submission, Inadmissible opinion See 53 above – admissible53(19) Submission, Inadmissible opinion See 53 above – generally factual and admissibleSecondparagraph 53Submission, Inadmissible opinion Again, generally factual statements and admissible54 Inadmissible opinion Again, generally factual criticisms and admissible55 Inadmissible opinion Again, generally factual criticisms and admissible56 Whole section – inadmissible expertopinionAgain, generally factual criticisms and admissible63(14) Submission Agreed to be deleted63(37) Inadmissible hearsay Given Russell Gray's report and availability, this isadmissible63(53) Argumentative, Speculation This is speculative and is inadmissible63(72) Inadmissible hearsay This is inadmissible hearsay and is to be deleted63(73) Argumentative, Submission,Inadmissible hearsaySome is factual and the balance, although possiblyhearsay, is admissible here63(78)(highlighted)Submission Generally this is factual and with the last sentencedeleted this is admissible63(83) Submission Generally this is factual from Mr Young's ownknowledge as occupier and is admissible63(84) Agreed to be deleted63(92) Inadmissible opinion Factual up to the words "actually occur" andadmissible. Balance to be deleted63(97) Submission, Argumentative,Inadmissible opinionGenerally a minor matter dealt with by other expertevidence – is a submission and is to be deleted asinadmissible63(99) Inadmissible hearsay Last sentence agreed to be deleted - although colourful,balance is factual and admissible.63(103)-(121),(123),(126) & 64Submission, Opinion, Repetitive,Conclusory and Unfairly prejudicialSave for the last clause in 105, these matters aregenerally factual and are admissible.65(19), (21),(25), (31),(37), (50)Submission, Repetitive Again, these matters are generally factual with someadmissible opinion evidence and objection dismissed.These are admissible65(52) Inadmissible opinion Again, generally factual and admissible65(63) Submission, Inadmissible opinion Again, a mixture of facts and admissible opinion –objection dismissed65(65) Inadmissible hearsay Factual evidence with some admissible opinion.Mr Harwood is to give evidence. Para admissible65(70) & (73) Argumentative (73) is agreed to be deleted. (70) is a response toearlier evidence, including certain facts and admissibleopinion – admissible65(76) Inadmissible opinion Again, generally factual and admissible65(101) &(103)Argumentative Again, generally factual and admissible67 Argumentative Again, factual in terms of Mr Young's understandingand admissible68(5) Argumentative, Submission,SpeculativeAgain, generally factual with admissible opinion andoverall admissible68(12) Repetitive Although this may be repetitive it is factual and withdeletion of references to the warranties is admissible68(17) Inadmissible opinion, Repetitive, notsubstantially helpfulAgain, this is generally factual with some admissibleopinion comments. Para is admissible