LEISURE INVESTMENTS NZ LTD PARTNERSHIP v GRACE & ORS [2023] NZCA 89

LEISURE INVESTMENTS NZ LTD PARTNERSHIP v GRACE & ORS [2023] NZCA 89 [31 March 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA246/2021[2023] NZCA 89BETWEEN LEISURE INVESTMENTS NZ LIMITEDPARTNERSHIPAppellantAND CECILE GRACE & ORSRespondents(See Schedule A for complete list ofRespondents)Hearing: 25 and 26 May 2022Court: Cooper P, French and Collins JJCounsel: C T Walker KC, W J Hamilton, L A Merrick and G N Gallawayfor AppellantM G Ring KC, C M Stevens, B R D Cuff and C S M Henley forRespondentsJudgment: 31 March 2023 at 3.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondents one set of costs for a complexappeal on a band B basis together with usual disbursements. We certifyfor two counsel.____________________________________________________________________REASONS OF THE COURT(Given by French J)Table of ContentsIntroduction [1]Background [4]The events of Monday 13 February 2017 [11]The events of Tuesday 14 February 2017 [20]The events of Wednesday 15 February 2017 [36]The High Court proceedings [50]The evidence at the hearing [54]The High Court findings [60]Negligence [64]The grounds of appeal [64]Analysis [66]Claim under s 43 of the Forest and Rural Fires Act 1977 [84]Legal background to s 43 [88]Arguments on appeal [121]Causation and responsibility [122]Outbreak or spread? [129]Nuisance [148]The argument [148]Our view [153]Damages [157]The Flanagans [170]Repair costs [170]Alternative accommodation costs [187]Stress benefit [192]Mrs Grace [196]Cost of alternative accommodation and stress [200]Sustainability benefit [202]The Kwons [204]Contents claims [204]The cost of alternative accommodation [208]The Pflaums [212]General damages and cost of alternative accommodation [212]Outcome [216]Introduction[1] In February 2017, a large number of residential properties located aroundWorsley's Road in the Port Hills of Christchurch were badly damaged by fire. Somewere completely destroyed. The owners claimed their properties would never havebeen damaged or destroyed had it not been for the actions of the appellantLeisure Investments NZ Limited Partnership (Leisure Investments), the owner andoperator of a nearby adventure park (the Park). The property owners issuedproceedings in the High Court against Leisure Investments seeking compensation fortheir losses.[2] The claim was heard by Gendall J who found in favour of the owners andawarded damages.1[3] Leisure Investments now appeals the decision to hold it liable. It also appealsthe quantum of the damages awarded.Background[4] The Park comprises around 358 hectares, and contains mountain bike tracks, azip line and hiking area. It was opened on 16 December 2016, that is to say only twomonths before the catastrophic fire.[5] A feature of the Park was a chairlift manufactured by an Austrian firm calledDoppelmayr Seilbahnen GmhB (Doppelmayr), part of the Doppelmayr/GaraventaGroup. Doppelmayr has an international reputation being one of the two mainsuppliers of ropeways (including chairlifts) in the world.[6] The Park's chairlift operated in a 12–20 metre wide corridor of cleared pinetrees and was used to ferry mountain bikers, zipliners and sightseers from the bottomof the Park to the top. At the time of the events in issue, substantial quantities of drypine slash from the cleared corridor remained under and around the chairlift line. Inan adjacent area, there was also dry coconut matting that had been installed to try toprevent erosion. In some places, the chairs only cleared the forest by a little over ametre.[7] The chairlift was just under 1.8 kilometre long with a 3.587 kilometre haulrope. Attached to the haul rope were 84 carriers. Half of these were four seater chairsand the other half bike racks. The average dead weight of each carrier was 282 kgwhich meant the total weight placed on the haul rope was close to 24 tonnes. The haulrope had a plastic core sheathed in metal.1 Grace v Orion New Zealand Ltd [2021] NZHC 705 [High Court judgment].[8] Significantly, the summer of 2017 had been exceptionally dry and windy inChristchurch. There was a city-wide fire ban in place and an elevated fire riskparticularly in the Port Hills, an area with a long history of fires.[9] It was a condition of the Park's resource consent that it have a fire safetymanagement plan in place. The plan identified forest fire as the Park's biggest risk,both to human safety and the Park's assets.[10] The key events at issue took place over a three day period commencingMonday 13 February 2017.The events of Monday 13 February 2017[11] At around 7 pm on Monday 13 February 2017 a fire started in an area of thePort Hills known as Marleys Hill. An investigation by Fire and Emergency NewZealand (FENZ) later concluded that arson was the probable cause of the fire, althoughthe arsonist was never identified. The area where the fire was started was close to thePark's boundary and about 500 m from the top station of its chairlift.[12] The fire was the second fire that had broken out in the Port Hills that day. Onlyone and a half hours earlier, another fire had broken out near Early Valley Road wherethere were electricity conductors and equipment belonging to a power companyOrion New Zealand Ltd (Orion). The smoke from this earlier fire was visible fromthe Park and as a precaution all patrons had been asked to leave and the Park hadclosed. The chairlift had already stopped operating before 6 pm because of highwinds.[13] To distinguish the two fires, we will refer to the first in time as the Early ValleyRoad fire and the second the Marleys Hill fire.[14] The second fire, the Marleys Hill fire, was first noticed at approximately7.10 pm on Monday 13 February 2017. The top station of the Park's chairlift wasevacuated and a fire watch set up at the bottom station to monitor the fire. The chairliftwas put on what was called "unmanned status" which meant it ran automatically at aspeed controlled by the bottom station.[15] By around 9.30 pm that same evening, the fire was thought to be only300 metres from the top chairlift station and not long after midnight it was observedwithin the Park boundary.[16] The chairlift was kept running through the night. Although that was not usual,it was done as a precaution because of the need to protect the haul rope from heatconcentration. In making that decision, Mr Johnstone, the Park's operations managerrelied on the Doppelmayr operation and service manual and the fire safety plan.[17] The Doppelmayr manual relevantly provided:Behaviour in the case of fire below the line• Keep the ropeway installation running to avoid a local overheating of thehaul rope.• Cool down the haul ropes close to the source of the fire to avoidoverheating of the haul ropes.[18] The reason it was seen as important to keep the haul rope moving was to avoidits plastic core melting and causing the haul rope to break. Given the weight of thechairlift, a break in the haul rope was potentially very dangerous.[19] Mr Johnstone and other employees remained at the bottom station all night toensure the chairlift kept running.The events of Tuesday 14 February 2017[20] As detailed in the judgment, several things happened on the followingmorning.[21] First, at 1.30 am, it was noted that the fire had breached the Park's boundarybelow the car park area. Later that morning around 9 am and 9.30 am respectively,Park management advised its insurer and banker of the fire risk. One email stated thatthe fires are "now significantly into our property on the eastern flank" while the othersaid that staff were doing all they could to protect the company's assets while notingthat "safety of the people involved is paramount".[22] Mr Johnstone issued a direction that no one was to go to the top of the chairliftbecause of the fire danger.[23] At around 10.30 am Mr Johnstone did however himself drive to the top stationof the chairlift to investigate concerns about a possible power failure up there. Heconfirmed that, as suspected, there had indeed been a power failure. The chairlift hadbeen able to keep running because of a back-up battery. To conserve the battery, thelift was stopped at 11 am. In evidence, Mr Johnstone said the Marleys Hill fire was atthat point some distance away and did not appear to be making progress towards thetop station.[24] Also on site that day was a Mr Charity. He was deputising for the Park'sGeneral Manager while she was overseas on leave. Responding to an email from aBoard member that it "[s]ound[ed] like [the fire was] coming under control", hereplied at 11.48 am that the fire was "actually a lot worse for us today".[25] During the day there were communications from the Fire Service andCivil Defence indicating the fire was under control. Twelve helicopters and twoaeroplanes were deployed. When those communications were put to Mr Charity at thehearing in the High Court, he said that the feeling for him on site was that the fire was"amplifying rather than getting under control".[26] At 12.54 pm on Tuesday, Mr Johnstone received an email from Mr Hayman,the General Manager of Doppelmayr New Zealand advising that "if [the fire was]getting close to the chair it's best to keep the lift running for [as] long as possible toprotect the haul rope and the plastic core". The email also stated that even if the powerwas cut to the top station, they should run the emergency drive for as long as it wassafe to do so.[27] At some time in the early afternoon, Mr Johnstone returned to the top stationto check on the fire's progress. He could see helicopters with monsoon bucketsdropping water on the Marleys Hill area behind him.[28] He remained at the top station for some time trying unsuccessfully to work outa way of restoring the power. While he was up there, he saw the Marleys Hill fire forthe first time from the deck. By this point it was some time between mid and lateafternoon. He estimated the fire was then about 200 metres from the top station. Healso saw a fixed wing aircraft dropping fire retardant on cell towers behind him andnot wishing to get in the way drove back down.[29] With the fire getting closer to the top station, Mr Johnstone then directed thechairlift be restarted. Because it was being operated on battery power, the chairliftwas run at a slow walking speed, about one metre per second as opposed to the usualfive metres per second.[30] At around 5 pm that same afternoon Tuesday 14 February, Mr Johnstonenoticed that large clumps of chairs and bike carriers were coming down the line fromthe top station. This suggested clusters of chairs and carriers were becoming jammedin the top station, with the resulting pile up eventually forcing some of the clustersdown the line. The clusters were a direct result of the power failure at the top. Theloss of power meant the clutch mechanism that regulated the space between the chairsand carriers was no longer working. Bunching or clumping was a potential problembecause it affected the weight distribution and hence the loading on the haul rope.[31] In light of this development, Mr Johnstone asked Mr Godwin, a New Zealandbased Doppelmayr representative who was on site at the time, whether there was anyway of quickly removing the chairs off the lift line to stop them bunching. The answerwas in the negative. While some chairlifts have what are called parking rails whichenable carriers to be removed easily and quickly, the Park's chairlift did not. It onlyhad a maintenance rail at the bottom station where approximately five carriers couldbe diverted at a time for maintenance purposes. In short, it was possible to remove thecarriers off the chairlift but not quickly.[32] Over the course of several hours, the staff did however manage to pull all theclumps at the bottom station apart by removing the wheel rails on the bike carriers.That had to be done manually. By dusk, between 15 to 18 rails from the bike carriershad been removed. There were still chairs and carriers stuck in the top station.[33] In evidence, Mr Johnstone said they needed to get the haul rope moving butwithout taking the risk of any more chairs getting to the top station and also becomingstuck. He testified that at Mr Godwin's suggestion, it was decided to run the liftbackwards and forwards in 20 minute intervals. In order to be able to do that, it wasnecessary to operate the lift manually from the bottom station.[34] The lift was run that way all night.[35] At around 9.30 pm, Mr Johnstone drove to a nearby area where he observedthe fire crossing the chairlift line. In evidence he said up until that point he had thoughtthe Marleys Hill fire was under control and not likely to move towards the lift anddown towards the bottom station. However, in light of what he saw, he contactedMr Charity to discuss a plan to remove chairs from the lift in the morning. Histhinking was that if the fire moved down the hill, they would need to evacuate thebottom station and so be unable to continue to run the lift backwards and forwards. Ifas many chairs as possible could be removed that would in the event of an evacuationreduce the risk of damage to the haul rope.The events of Wednesday 15 February 2017[36] At 6.30 am Wednesday 15 February morning, the fire was seen to have enteredfurther into the Park with flames evident around chairlift tower 10, a little over twothirds of the way up the line.[37] At 7 am, staff began the process of removing the carriers from the haul rope atthe bottom station. At first, they tried to do this using a digger but that proved anineffective method and was quickly abandoned in favour of using a truck with a crane.The crane and truck were brought in by a contractor and were in use by 9.30 am.[38] The fire continued to spread but as at 9.53 am it had not yet reached the topstation. By 1.21 pm, it had tracked to both the eastern and western sides and becomea crowning forest fire, that is to say a fire burning along the tops of the trees. Trees oneither side of the lift corridor were on fire.[39] At around 1.45 pm, staff at the bottom station noticed that a chair coming downthe hill on the haul rope was on fire. Mr Johnstone estimated that by then only about12 of the 84 carriers (six chairs and six bike carriers) were between stations. The resthad either been removed or were jammed in the top station.[40] Immediately on hearing of the burning chair, Mr Johnstone instructed staff toreverse the lift so as to send the burning chair back up to the top station and called oneveryone to evacuate.[41] After the evacuation, the Fire Service gave Mr Johnstone permission to returnto refill the diesel tank for the emergency drive to make sure the lift kept running. Thelift was kept running all through Wednesday night.[42] At around the time of the evacuation, flames were seen towering 20 to30 metres above the height of pine trees in the Park.[43] Video footage showed that before the evacuation, between 1.08 pm and1.30 pm on the Wednesday, a total of six to seven chairs passed through the burningforest towards the top of the lift line. At one point during the uphill and downhillreversals of direction, some of the chairs were held stationary in the fire for up to sevenminutes before travelling down the slope towards the bottom forest.[44] The chairs were upholstered with plastic material (polyurethane foam) and asa result of the chairs igniting, the plastic started to melt. From 1.30 pm onwards, themolten plastic dripped from the moving burning chairs onto the pine slash, ignitingthat material and causing spot fires along the length of the line.[45] The spot fires created by the molten plastic igniting the slash and the mattingthen joined together to create what was called in the High Court judgment the"Chairlift Fire".[46] We pause here to interpolate that the question of whether the spot firesrepresented the outbreak of a new fire (as the Judge's label of a distinct name the"Chairlift Fire" might suggest) or the spread of the existing Marleys Hill fire is a keyissue on appeal. We address that issue later.[47] Returning to the narrative, the fire rapidly grew in intensity and assisted by achange in wind direction and wind speed, it advanced rapidly through pine slash andforestry on the Park property and then from 1.45 pm onwards progressed out of thePark to the Worsley's Road area where the respondents' properties were located.[48] It is common ground that had the chairs not caught on fire, the fire from theMarleys Hill area would have passed well south of the respondents' properties andthose properties would not have been affected.[49] At around 3 pm, the fire burning out of the park merged with the Early ValleyRoad fire creating what we will call the merged fire. The Early Valley Road fire, itwill be recalled, was a fire that had started one and half hours before the Marleys Hillfire. The merged fire destroyed property owned by the respondents Mr and MrsFlanagan. Before it merged with the fire coming from the park, the Early Valley Roadfire had already caused damage to other properties.The High Court proceedings[50] The High Court proceedings were issued by three categories of propertyowners:2(a) owners of properties damaged by the Early Valley Road fire who heldOrion responsible for that fire;2 See High Court judgment, above n 1, at [4].(b) owners of properties in or around Worsley's Road impacted by the fireprogressing from the Park who held Leisure Investments responsiblefor their losses; and(c) the Flanagans whose property was destroyed by the merged fire andwho sued both Orion and Leisure Investments.[51] As regards the claims against Leisure Investments, it was common ground thatit did not cause the Marleys Hill fire. That was accepted to be the work of an arsonist.What was contended was that Leisure Investments caused the spread or outbreak of agrowing fire from its property by creating the Chairlift Fire which then joined with theEarly Valley Road fire to create the additional merged fire.3[52] The statement of claim against Leisure Investments pleaded three causes ofaction: liability under s 43 of the Forest and Rural Fires Act 1977, negligence andnuisance.[53] Part way through the High Court hearing, a settlement was reached betweenOrion and the Early Valley Road claimants. As a result of the settlement, the claimsagainst Orion were discontinued. The hearing then continued to deal only with theclaims against Leisure Investments. It was agreed that in the eventLeisure Investments was found liable, then as regards the Flanagans, the liabilitywould be split evenly between Leisure Investments and Orion.The evidence at the hearing[54] As already indicated, there was evidence regarding the establishment of thePark as well as eyewitness accounts about the fire and Leisure Investments' responseto it.[55] Leisure Investments also called evidence of industry practice fromDoppelmayr's Mr Hayman and from a Mr Mauch, a representative of the other mainglobal manufacturer of ropeways. Their evidence was to the effect they had never3 At [12].seen a manual recommending the removal of carriers in the event of a fire, at least notin a manual for a chairlift without parking rails. Mr Hayman had seen an expressrecommendation to that effect for a chairlift with parking rails. While he acceptedchairs catching alight was not unheard of and therefore a foreseeable risk, neither henor Mr Mauch was aware of any previous occasion where an adjacent forest fire hadignited a moving carrier with such drastic consequences as had occurred in this case.[56] For reasons never explained, Leisure Investments did not call Mr Godwin theother Doppelmayr representative who, it will be recalled, was on site during the fire.He was the person who Mr Johnstone claimed had suggested running the chairliftbackwards and forwards.[57] The evidence called on behalf of the homeowners included expert evidenceabout the ignition temperature of the foam coating the chairs and the properties of thefoam once ignited. That evidence confirmed that its ignition temperature would bereached in a crowning forest fire despite the average 6–10 metre or so clearancebetween the lift and the trees and that the chairs would melt long before the haul rope.[58] Evidence for the homeowners was also given by a Mr McCrostie aNew Zealand expert on chairlift operations in ski fields and an accredited safetyauditor. He opined that a competent chairlift operator should not rely solely on themanufacturer's operation and service manual for the development of safety plans butalso needed to consider the environment in which the lift is operating, identify thehighest risk and plan for it. The Doppelmayr manual at issue in this case was genericand predominately contemplated a snow operation.[59] Mr McCrostie was of the view that the Park's operational plan should haveprovided for removal of the carriers in the event of fire, that a competent operatorshould have known that once the power was lost, the chairs would bunch, and thatLeisure Investments should have removed them before the chairs ignited.The High Court findings[60] In his decision, the Judge made the following key findings:(a) a reasonable operator in the position of Leisure Investments would haveappreciated that the plastic on the chairs would melt and create a firespread risk and would have removed the chairs;4(b) Leisure Investments negligently failed to remove the pine slash underthe chairlift in breach of its fire safety management plan as well asfailing to remove highly inflammable matting in the adjacent area;5 and(c) the spot fires caused by the dripping molten plastic created a new fire.6[61] The Judge concluded Leisure Investments was liable under all three causes ofaction and awarded damages totalling $10,296,041 together with interest and costs.[62] On appeal, Leisure Investments challenges the finding of liability in respect ofeach cause of action. It contends the Judge erred both in his analysis of the evidenceand his interpretation of the Forest and Rural Fires Act.[63] The Judge's findings in relation to the negligence claim inform the findings asregards the other two causes of action and accordingly we address the negligence causeof action first.NegligenceThe grounds of appeal[64] Mr Walker KC on behalf of Leisure Investments submitted that, correctlyanalysed, the evidence did not support the finding that the company had breached itsduty of care. He identified the following alleged errors in the approach taken by theJudge:(a) The Judge wrongly relied on hindsight and expert scientific evidenceinstead of focusing as he should have done on what Leisure Investmentsreasonably understood at the time.4 At [181(b)–(c)].5 At [181(e)].6 At [120].(b) failed to give sufficient weight to the evidence that Leisure Investmentsresponded to the fire in accordance with the Doppelmayr manual, thefire safety management plan and Doppelmayr's instructions. No oneelse including fire safety officers appreciated the risk of continuing torun the chairlift. What happened was an entirely unforeseen andunprecedented event.(c) wrongly relied on evidence about previous incidents where forest fireswere said to have burned chairlift carriers without recognising orappreciating that those incidents all involved stationary carriers.(d) made errors of fact, including in particular mistakenly believing that aprevious version of the Park's fire safety management plan was for a60 metre corridor instead of the as constructed 12–20 metres, andsecondly that the Doppelmayr manual did not apply to a crowningforest fire when the correct position was that it did.(e) relied on allegations of negligence that had not been pleaded.(f) failed to apply the legal principle that in cases alleging failure to abatea danger, the fact the defendant was confronted by a situation not of itsown making should be taken into account in assessing the standard ofeffort required.7 In this case, the Judge took no account of LeisureInvestments' knowledge, the resources at its disposal or the advice itreceived.[65] In summarising Leisure Investment's position, Mr Walker contended that itbehaved responsibly and robustly throughout the emergency. It co-operated with theauthorities and acted in accordance with best industry practice, the Doppelmayrmanual and its emergency plans. It sought advice from the manufacturer and followedthat advice. Leisure Investments was confronted with a fire it did not start and, in hissubmission, it was unjust and wrong to weigh its conduct in fine scales, with the7 Relying on Goldman v Hargrave [1967] 1 AC 645 (PC).benefit of hindsight and to an exacting standard. It should not be held liable for failingto identify a fire-spread risk that no one else had identified.Analysis[66] We are not unsympathetic to the difficulties faced by Leisure Investments andconsider the arguments raised by Mr Walker have some force. However, havingcarefully reviewed the evidence ourselves, we are not persuaded that the Judge reachedthe wrong conclusion.[67] At the time of the events at issue, Leisure Investments was aware of the closeproximity of the Marleys Hill fire, a major forest fire. It had itself already identifiedsuch a fire as its greatest risk. It knew that the majority of its chairlift corridor ranthrough plantation forests that adjoined urban development and at all material timesduring the three critical days was aware there was a reasonable possibility of a majorcrowning forest fire in the chairlift corridor. It was also aware that the seats on itschairlift were coated in plastic. Leisure Investments knew too that there wereconsiderable quantities of dry slash underneath the chairlift and that there was anelevated fire risk in the Port Hills area.[68] In those circumstances, it was not in our view necessary forLeisure Investments to have knowledge of relative ignition temperatures and meltingpoints before it could be held liable as failing to meet the standard of a reasonablechairlift operator by continuing to run the chairlift at walking pace backwards andforwards through a crowning forest fire and over flammable ground cover with theplastic chairs still on it. It is common knowledge that plastic melts when exposed toexcessive heat and burns. It is also common knowledge that dry slash in the summerheat is highly flammable especially in the sort of conditions prevailing in Christchurchthat summer.[69] The concern to protect the haul rope was understandable but asLeisure Investments knew the haul rope could run without the chairs still attached andit knew it was possible to remove the chairs. The fact Mr Johnstone did not advert tothe possibility of running the haul rope without the chairs or delayed taking that actionbecause there was no such instruction in the Doppelmayr manual and/or the chairswere not easily able to be removed – or at least not as easily as they might have beenhad there been parking rails – is no answer.[70] Mr Johnstone conceded in evidence that he was aware the chair seats werecoated in plastic polyurethane foam. Armed with that knowledge, a reasonablechairlift operator would, in our assessment, have appreciated that if the fire wascapable of damaging the encased plastic core of the haul rope, then the unprotectedplastic on the chair would obviously catch fire even more readily and accordinglywould have taken the necessary precautions.[71] Further, while the chairs were not easily removed, it was by no meansimpossible as evidenced by the fact that a significant number of chairs were able to beremoved in just a four hour period on the Wednesday morning. We agree with theproperty owners' counsel, Mr Ring KC, that there was sufficient time for LeisureInvestments to have removed all the chairs and so prevented his clients' loss had itonly started that exercise earlier. To put it another way, given the risk of leaving thechairs still attached, the burden of taking the precaution of removing them to eliminatethat risk was not unduly onerous. As Mr McCrostie said in evidence, the worst thatwould have happened is that Leisure Investments would have spent eight hours takingthe chairs off and another eight hours putting them back on.[72] This last point bears on the question of the standard of effort required ofLeisure Investments in a situation where the fire was caused by a third party, thearsonist. We accept as indeed do the respondents, that in determining whetherLeisure Investments was negligent, the "standard of effort" required of it must takeinto account its lack of initial responsibility, its knowledge and its resources.Removing the chairs was not as easy as it would have been had there been parkingrails but there was no evidence it was prohibitively resource intensive or excessivelydemanding.[73] All of this of course raises the question: when would a reasonable operator inthe position of Leisure Investments have commenced the exercise of removing thechairs?[74] In our assessment of the evidence, there was sufficient reason for concern onthe Tuesday that a reasonable operator in the position of Leisure Investments wouldhave started to remove the chairs in the afternoon at the latest instead of leaving it until9.30 am the following day. While there were reports on Tuesday that the fire was onthe boundary but under control, that evidence needs to be tempered with theconsideration that at the same time, Leisure Investments itself thought it necessary tokeep running the chairlift. Not only was Mr Charity apprehensive but Mr Johnstonehimself clearly anticipated the fire might reach the chairlift. He instructed staff forexample not to go to the top station because of the danger.[75] At the hearing before us, Mr Walker stressed that the concern that led toremoval of bike carriers on late Tuesday afternoon was about clumping. Thus, in hissubmission, the inference could not be drawn that this action was taken becauseLeisure Investments appreciated the risk of the carriers themselves catching fire. Itwas not, he argued, until Wednesday morning that the risk of the fire reaching thechairlift materialised. We disagree. In our view, on the evidence that risk was everpresent from Monday evening onwards and should have been appreciated byLeisure Investments given the inherently unpredictable nature of major forest fires.[76] In coming to these conclusions, we have not overlooked the specific criticismsmade of aspects of the Judge's analysis.[77] First, as regards the pleading point, we agree the allegations of "negligentlyleaving pine slash under the chairlift in breach of the fire safety management plan"and "negligently failing to remove the highly flammable coconut matting which wasadjacent" were never pleaded as particulars of negligence. Had they been, LeisureInvestments would have called other evidence about the pine slash, the coconutmatting and the plan. In those circumstances, we therefore agree with Mr Walker thatthe absence of a pleading unfairly prejudiced Leisure Investments and the Judgeshould not have found failing to remove the pine slash, coconut matting ornon-compliance with the plan to be a distinct breach of the company's duty of care.[78] However, in our view, that does not absolve Leisure Investments from liability.The critical point is that Leisure Investments knew the slash was there and must haveknown it was highly flammable. The known presence of the slash must be relevant toan assessment of what a reasonable operator in Leisure Investments' position wouldhave done.[79] Similarly, although we accept the Judge did make factual errors regarding theoriginal width of the corridor and the application of the manual to a crowning forestfire, we are not persuaded the mistakes were sufficiently material to vitiate his findingof liability. We have independently reviewed the evidence knowing the correct factsand reached the same conclusion.[80] Another criticism made of the Judge is that he placed excessive weight onMr McCrostie's evidence and little or no weight on the evidence of Mr Mauch (therepresentative from the other chairlift manufacturer) despite the latter havingconsiderably greater expertise and knowledge than the former and despiteMr McCrostie making mistakes and concessions which were never addressed in thejudgment.[81] As is well established, it is open to a trial judge to prefer the evidence of oneexpert over another. Mr McCrostie was qualified to give the evidence he did and hewas truly independent. According to the respondents, in contrast, Mr Mauch wasdemonstrably an advocate. We agree there are aspects of Mr Mauch's evidence thatsmack of advocacy but would not discount his evidence on that basis. The more tellingpoint is that the concessions made by Mr McCrostie did not in our assessment detractfrom his central thesis and much of what he had to say was essentially common sense.Further, while industry practice is undoubtedly very relevant in assessing standards ofcare and negligence, the evidence adduced was not evidence of an accepted industrypractice to take the various actions that Leisure Investments took. Nor did theDoppelmayr manual actively authorise or recommend those specific actions, namelyrunning the haul rope with plastic coated chairs still attached through a crowning forestfire backwards and forwards at walking speed.[82] For all these reasons, we agree with the Judge's finding of liability innegligence.[83] Although that conclusion means the appeal relating to liability must fail, out ofdeference to the detailed argument we heard on the other two causes of action, we nowturn to consider them.Claim under s 43 of the Forest and Rural Fires Act 1977[84] We begin by noting that s 43 of the Forest and Rural Fires Act 1977 is actuallyno longer in force, the Act having been repealed on 1 July 2017 and replaced by theFire and Emergency Act 2017.8 The latter does not provide for any civil liabilityrelating to forest and rural fires, only the imposition of criminal sanctions.[85] However, because the events at issue in this case occurred before the date of1 July 2017, the Forest and Rural Fires Act, including s 43, applies to this proceeding.9According to Mr Walker, the claim under s 43 was the respondents' "lead claim" attrial.[86] Section 43 at the time of the Port Hills fires read as follows:43 Recovery from person responsible for fire(1) Where any property has wholly or partially been destroyed ordamaged by or safeguarded from an outbreak or threat of outbreak offire, and responsibility for the outbreak is acknowledged by, or isestablished by action or otherwise as caused by, any person—(a) the costs of control, restriction, suppression or extinction ofthe fire may be recovered from that person by the FireAuthority or the New Zealand Fire Service Commission orthe eligible landholder or eligible landholders of the forestarea affected, as the case may be, incurring those costspursuant to fire control measures under this Act; and(b) any loss in, or diminution of, value of that property, and anyconsequential loss or damage not too remote in law, may berecovered from that person by the owner of the property.(1A) [Repealed](2) The amount of the costs so recoverable may be wholly or partiallyestablished by agreement, or by a Rural Fire Mediator, or byproceedings under section 48(4).8 Fire and Emergency Act 2017, s 195(b).9 See generally the Legislation Act 2019, s 34.(3) This section shall be deemed to be supplementary to and not insubstitution for any other rights of recovery that may exist in law orby enactment or otherwise howsoever.(4) Before imposing any levy under section 46 or section 46A, a FireAuthority shall reasonably endeavour to recover its costs pursuant tothis section.[87] The claim in this case by the property owners against Leisure Investments wasmade under s 43(1)(b) and as mentioned was upheld by the Judge.Legal background to s 43[88] In order to understand the issues raised on appeal, it is necessary to provide abrief explanation about the background to the Forest and Rural Fires Act, the commonlaw that relevantly applied prior to its enactment and subsequent case law.[89] Civil liability for damage caused by fire was part of the early common law. Ittook the form of a special action known as the ignis suus rule, the Latin phraseignis suus meaning "his fire". Under the rule, an occupier of land was strictly liablefor damage caused by the escape of fire from their land unless they could show thefire was started or spread due to the act of a stranger or an act of God.10[90] The rule was later modified by s 86 of the Fires Prevention (Metropolis) Act1774 (GB) 14 Geo III c 78 (the 1774 Act). That section of the 1774 Act later becamepart of the law of New Zealand and remained in force until 2008.11 Section 86provided that an action could not be maintained if the fire had begun accidentally."Accidentally" was interpreted to mean "produced by mere chance" or "incapable ofbeing traced to any cause".1210 See Bill Atkin "The Rule in Rylands v Fletcher" in Stephen Todd (ed) Todd on Torts (8th ed,Thomson Reuters, 2019) 597 at [11.6.01], citing among others Mayfair Ltd v Pears [1987] 1NZLR 459 (CA) at 461 and 467; and Balfour v Barty-King [1957] 1 QB 496 (CA) at 505.11 The operation of s 86 of the 1774 Act in New Zealand was preserved until then under sch 1 of theImperial Laws Application Act 1988. Section 86 ceased to have effect in New Zealand on1 January 2008: see the Property Law Act 2007, s 365(3)(a).12 Atkin, above n 10, at [11.6.01], citing Filliter v Phippard (1847) 11 QB 347, 116 ER 506 (QB) at357 and 510; and Goldman v Hargrave, above n 7, at 665–666.[91] Then in 1865 the landmark decision of Rylands v Fletcher established a newstrict liability tort for the escape of harmful things from one property to another.13Liability under what became known as "the tort of Rylands v Fletcher" was subject toa requirement that the harmful thing must have been brought onto the defendant'sproperty for a non-natural use.14[92] The new tort was applied to fire, it being held that the old ignis suus rule hadbeen subsumed into the new tort. This prevented claimants from being able to avoidthe non-natural use requirement.15[93] Prior to the enactment of the Forest and Rural Fires Act, the common lawposition as modified by s 86 of the 1774 Act can be generally summarised as follows.An occupier was liable for the escape of a fire lit deliberately (as in one lit intentionallyand not accidentally) on their land if:16(a) the occupier was negligent in lighting the fire or in allowing it to spread;or(b) the lighting of the fire amounted to a non-natural use of the land so asto attract strict liability.[94] The Forest and Rural Fires Act came into force on 1 April 1979. There hadbeen earlier legislation dealing with rural fires and recovery of firefighting expensesbut none of the previous statutes contained a provision identical to s 43.[95] For some time, there was a degree of uncertainty about whether s 43 created anew cause of action or whether its purpose was the more limited one of simply13 See Rylands v Fletcher (1866) LR 1 Exch 265 (Exch Ch), which was affirmed in Rylands vFletcher (1868) LR 3 HL 330 (HL) [Rylands (HL)].14 The non-natural use requirement was added by the House of Lords on appeal: see Rylands (HL),above n 13, at 330 and 339.15 See Atkin, above n 10, at [11.6.01], citing among others Boulcott Gold Club Inc v Engelbrecht[1945] NZLR 556 (SC) at 557; and Holderness v Goslin [1975] NZLR 46 (SC) at 51.16 At [11.6.01], citing Tucker v New Zealand Fire Service Commission [2003] NZAR 270 (HC) at[28].extending the scope of the remedies recoverable under the existing actions.17Unfortunately, the relevant legislative materials shed little light on Parliament'sintention in this regard.[96] The first decision to consider the section in any depth was the 2002 High Courtjudgment of William Young J in Tucker v New Zealand Fire Service Commission.18[97] The facts of Tucker were that Mr Tucker was driving a properly maintainedand certified B train vehicle down a state highway.19 Without warning two tyres onone of the trailers burst with the result that the rims on two of the wheels came intocontact with the road. This produced sparks and a roadside fire which damaged a pineplantation. The New Zealand Fire Service Commission and the Minister ofConservation incurred costs of just over $21,000 in bringing the fire under control andsought to recover these from Mr Tucker relying on s 43(2).[98] In his decision, William Young J addressed the meaning of what he describedas the "scrambled syntax" of s 43 (1),20 in particular, the requirement that: responsibility for the outbreak is acknowledged by, or is established byaction or otherwise as caused by, any person—[99] William Young J held that in order to make sense of those words, they shouldbe interpreted as requiring that the person either admitted being responsible for theoutbreak in the sense of having caused it or that there was a judicial finding in a courtaction that the person had caused the outbreak.17 See for example Hollamby v Attorney-General HC Blenheim M24/82, 31 March 1983 at 9–10.John Smillie, in an earlier edition of Todd on Torts, identifies "the strongest alternative view" tothe view that s 43(1) creates a distinct cause of action as being "that s 43(1) was intended merelyto confirm the position taken by Mahon J in New Zealand Forest Products Ltd v O'Sullivan [1974]2 NZLR 80 (SC) that a person who is otherwise legally responsible for causing a fire is liable foreconomic loss consisting of firefighting costs incurred by a claimant who suffers no physicaldamage to his or her property": see John Smillie "The Rule in Rylands v Fletcher" in StephenTodd (ed) The Law of Torts in New Zealand (4th ed, Brookers, 2005) 442 at n 167.18 Tucker, above n 16.19 A B train vehicle is a tractor unit with two semi-trailers.20 At [42].[100] In coming to that conclusion, William Young J rejected an argument that"responsibility for the outbreak" meant legally responsible. In his view, the sectionwas intended to apply so as to impose liability on a person who causes the outbreak,irrespective of whether that person was otherwise civilly liable for the fire and itsconsequences. That is to say, the "responsibility" connoted was causation in fact ratherthan responsibility in law and the breach of an existing legal duty.21[101] That meant the key issue was whether Mr Tucker could be regarded as havingcaused the fire.[102] In deciding this issue, William Young J accepted that foreseeability was not thecriterion. However, relying on the House of Lords decision in Environment Agency(formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd, he held thatfor the purposes of causation under s 43 a "common sense" distinction could be drawnbetween (a) acts and events which although not necessarily foreseeable in theparticular case are generally a normal and familiar fact of life and (b) events which areabnormal and extraordinary.22 Events in the latter category could not properly beregarded as causative. The facts of the present case were clearly in this category andtherefore Mr Tucker was not liable under s 43.23[103] The Judge also observed that the application of causation principles had to takeinto account the legislative context, the paradigm case Parliament had in mind beinga deliberately lit fire. The Judge acknowledged that liability was not limited todeliberately lit fires but what Parliament had in mind was relevant to "draw[ing] thecausation line".24 He also stated that in his view "where a person causes fireaccidentally but without negligence (or other breach of legal obligation) causation islikely to be difficult to establish".25[104] In 2005 – three years after Tucker was decided – s 43(1) was amended by theaddition of s 43(1A). It provided:21 At [42].22 At [49]–[54], citing Environment Agency (formerly National Rivers Authority) v Empress Car Co(Abertillery) Ltd [1999] 2 AC 22 (HL).23 At [47]–[61].24 At [55].25 At [66].To avoid doubt, section 86 of the Fires Prevention (Metropolis) Act 1774(Imp) does not apply—(a) in determining, for the purposes of this section, responsibility for theoutbreak or threat of outbreak of fire; or(b) to a recovery made under this section.[105] It will be recalled that s 86 of the 1774 Act stipulated no action was to lieagainst a person where the fire accidentally started. It follows that the intention of theamendment to s 43 (in precluding the application of s 86) was to make it clear that thefact a fire was accidental was not an impediment to liability under s 43.[106] The authors of Todd on Torts state that by merely reaffirming the strict natureof s 43 and not taking the opportunity to make any other amendments, Parliament mustin enacting s 43(1A) be taken to have endorsed the interpretation given the section inTucker.26 While we agree that s 43(1A) does affirm the existence of a distinct causeof action based on strict liability, the implications of s 43(1A) for the Tucker approachto causation are, in our view, less clear cut. As already mentioned, "accidentally"under the 1774 Act was interpreted as meaning a fire produced by mere chance. Thus,if the 1774 Act is excluded from s 43, fires produced by mere chance should still becaught under s 43 and the person held liable. Yet, arguably "mere chance" appears tobe the reason why Mr Tucker escaped liability.[107] Unfortunately, the background legislative materials provide no guidance as tothe reasons for the addition of s 43(1A).[108] Section 43(1A) was subsequently repealed in 2008. That came about becausethe 1774 Act was repealed in its entirety under the Property Law Act 2007. The repealof the 1774 Act was part of a general "clean out" of obsolete imperial legislation.27 Inthose circumstances, we do not consider it appropriate to attach any significance to itsrepeal in terms of the application of s 43.26 Bill Atkin "The Rule in Rylands v Fletcher" in Stephen Todd (ed) The Law of Torts in New Zealand(7th ed, Thomson Reuters, 2016) 591 at [11.6.02].27 See Law Commission A New Property Law Act (NZLC R29, 1994) at 4 and 422.[109] Counsel referred us to a number of decisions that have considered s 43 since2008.[110] The first of these is a 2011 decision of this Court in Garnett v Tower InsuranceLtd.28 It involved a dispute in the summary judgment context between a person beingsued under s 43 and their insurer. Although the focus was on the interpretation of therelevant insurance policy, this Court did have occasion to consider the scope of s 43.The Court expressly stated that liability under s 43 was "of a different nature fromliability for negligence" and that:29 by s 43(1) a person who is responsible for causing a fire in a forest or arural area is strictly liable for costs incurred both in fighting the fire and fordamage done to property – that is, without proof of negligence or want of care,[111] Liability under s 43 for the fire at issue in Garnett was the subject of a laterHigh Court trial and judgment in Nelson Forests Ltd v Three Tuis Ltd.30 That judgmentprovides further details about the fire. Mr Garnett and his partner ran a bed andbreakfast business through their company, the first defendant Three Tuis Ltd. Guestshad lit a fire in a wood burner and two days later Mr Garnett dumped the ashes by ascrub covered bank at the edge of a mown lawn. Within two hours, a serious fire hadtaken hold about the bank. Driven by a strong wind, and encouraged by dryconditions, the fire spread 4.7 kilometres destroying a large neighbouring forest. Boththe forest's owner and the Fire Service who incurred costs bringing the fire undercontrol filed proceedings under s 43, respectively relying on s 43(1)(b) and (a).[112] The trial judge Miller J found that the ashes had caused the fire and that theywere hot when Mr Garnett dumped them against combustible material.31 He alsofound that although Mr Garnett thought the ashes were cold that was only on the basisof an inadequate visual inspection.3228 Garnett v Tower Insurance Ltd [2011] NZCA 576.29 At [37]–[38].30 Nelson Forests Ltd v Three Tuis Ltd [2013] NZHC 856, [2013] NZAR 1151.31 At [16]–[17].32 At [16] and [23].[113] Miller J summarised what he considered the relevant legal principles in thefollowing terms:33[24] I accept, following Tucker v New Zealand Fire Service Commissionand [Environment] Agency [(formerly National Rivers Authority)] v EmpressCar Co (Abertillery) Ltd, that liability under s 43 is strict. The harm need notbe foreseeable. However, the defendant is not liable where the harm, althoughproduced by his or her actions, was an extraordinary consequence, not anormal fact of life.[114] The Judge went on to hold it could not possibly be said that the fire in questionwas an extraordinary consequence such that Mr Garnett could not be taken to havecaused it at all. Unlike Tucker, the case did not feature any:34 succession of events of which only one, an action not in itself intrinsicallylikely to cause fire, was directly attributable to Mr Garnett. The connectionbetween his actions and the fire was immediate.[115] The next case in time was another decision of this Court, AMI Insurance Ltd vLegg.35 Mr and Mrs Legg had built and burnt a fire heap on their property on16 December at a time when no fire restrictions were in place and conditions weresuitable. The fire burned without incident. It was tended from time to time byMr Legg using a tractor to push material from the periphery into the heart of the fire.The last time he did this was 22 December. On 10 January, embers deep within theheap unexpectedly caused it to reignite in very dry and windy conditions. Materialfrom the heap then blew onto nearby vegetation. Fire spread rapidly ontoneighbouring properties. The firefighting authorities sought recovery under s 43 fromthe Leggs for the costs of fighting the fire, which in turn prompted the Leggs to seekindemnity from their insurer.[116] Although the focus of this Court's decision was, as it had been in Garnett, onthe interpretation of an insurance policy, the Court expressly noted that the liabilityunder s 43 was strict liability.3633 Footnotes omitted.34 At [25].35 AMI Insurance Ltd v Legg [2017] NZCA 321, [2017] 3 NZLR 629.36 At [13].[117] The final decision referred to us was a High Court decision of Churchman J inMarlborough Lines Ltd v New Zealand Fire Service Commission.37 In that case, aperson carrying out work on a property cut down a tree which then fell across powerlines on the property. As a result, vegetation in the vicinity ignited causing a fire. Thefire then spread over approximately six hectares of vegetation. In extinguishing thefire, the relevant authorities incurred costs of over $100,000 which they then soughtto recover in the District Court under s 43 from the owner of the power lines,Marlborough Lines Ltd. The firefighting authorities alleged that by operating thepower lines, the lines company had produced a situation in which a fire could occur.[118] Marlborough Lines unsuccessfully sought a defendant's summary judgment inthe District Court. It then appealed to the High Court, Churchman J dismissing theappeal and holding that the claim under s 43 was tenable and should proceed to trial.38[119] In the course of coming to that conclusion, Churchman J noted that s 43 doesnot limit liability to situations where traditional causes of action such as negligence,nuisance or Rylands v Fletcher are made out. Instead, he said, it imposes strictliability.39 He went on to hold following Tucker that the case turned on whether thesequence of events that had occurred was extraordinary or ordinary.40 It seems clearthe Judge considered the firefighting authorities were likely to face an uphill battle attrial but ultimately decided it was not sufficiently clear cut as to warrant summaryjudgment.[120] We turn now to the issues raised on this appeal.Arguments on appeal[121] Leisure Investments says that in allowing the claim under s 43, the Judge erredin the following key respects:37 Marlborough Lines Ltd v New Zealand Fire Service Commission [2017] NZHC 2127.38 At [133].39 At [10].40 At [16].(a) wrongly characterised the so-called Chairlift Fire as an outbreak for thepurposes of liability under s 43. There was only one relevant outbreakand that occurred when the arsonist ignited the Marleys Hill fire.Leisure Investments only spread the fire. Liability under s 43 is basedon outbreak.(b) misinterpreted s 43 to require only causation in fact and failed toaddress whether Leisure Investments was responsible for the outbreakof the fire.(c) wrongly determined that Leisure Investments had caused an outbreakand could only be excused from liability by a subsequent extraordinaryevent.Causation and responsibility[122] This was the primary argument raised by Leisure Investments and we thereforeaddress it first.[123] As we understand it, the thrust of Leisure Investments' argument on causationand responsibility is that Tucker wrongly conflated the two. It is further argued thatthere is an internal contradiction in the Tucker analysis. While asserting that the causeof action is one of strict liability and equating responsibility with causation in fact, atthe same time the High Court Judge through the guise of causation introduced anelement of fault so as to produce a fair result on the facts before him. That was tostrain concepts of causation. The result reached in Tucker cannot be justified oncorrect causation principles and the Court should acknowledge that causation andresponsibility are intended to be distinct concepts.[124] In short, the argument is that it is a necessary pre-condition to liability that thedefendant must be responsible which requires a judgment about their conduct andculpability over and above causation.[125] We do not accept this submission if it is intended to suggest that the Courtshould go further than the Tucker extraordinary event exclusion and hold thatforeseeability of harm and negligence are pre-requisites to liability under s 43.[126] As detailed above, all the post-Tucker decisions including decisions of thisCourt have held that the action is one of strict liability and not dependent on fault.That approach was unequivocally re-affirmed by Parliament when it enacted s 43(1A).[127] It is also supported by the existence of s 43(3) which states that s 43 "shall bedeemed to be supplementary to and not in substitution for any other rights of recoverythat may exist in law or by enactment or otherwise howsoever". In our view, thatsection makes clear that while there may be concurrent liability under both s 43 andnegligence, that does not mean the two causes of action are co-extensive. Otherwisethere would be no point in making a s 43 claim available to property owners.[128] As regards the superadded Tucker requirement of ordinary event, for reasonsalready identified that was arguably overly generous to defendants. However weacknowledge that has become settled law. Whether that is more accurately viewedunder the rubric of responsibility or causation is immaterial. Further and in any eventneither the ordinary event requirement nor an argument that we should introducefurther concepts of fault can avail Leisure Investments given our conclusions inrelation to the negligence cause of action.Outbreak or spread?[129] As the Judge noted, the Oxford English dictionary definitions of the word"outbreak" refer to "a sudden or violent occurrence " while "spread" has beendefined as to "open something out so as to increase its surface area, width, or length"and "to extend or distribute over a large or increasing area".41[130] On appeal, it was common ground that under the Forest and Rural Fires Act an"outbreak" of fire is not the same thing as an "occurrence" of fire, the latter term41 High Court judgment, above n 1, at [134], citing Catherine Soanes and Sara Hawker (eds)Compact Oxford English Dictionary of Current English (3rd ed, Oxford University Press, Oxford,2005) at 718 and 1003.encompassing both controlled and uncontrolled fires whereas "outbreak" refers to theuncontrolled sudden happening of a fire. Importantly, both parties also agreed thatunder the Act the "outbreak" of a fire is not the same thing as the "spread" of a fire.[131] We agree it is reasonable to conclude those terms were intended to be distinctconcepts. All three – "occurrence", "outbreak" and "spread" – are used in varioussections in the Act42 including sections where they are used disjunctively such as"outbreak or spread",43 "occurrence or spread".44 The fact that s 43 imposes liabilityin respect of "outbreaks" only, with no reference to "spread" or "occurrence" must betaken to have been a deliberate choice on the part of Parliament.[132] We also consider it reasonable to infer that liability under s 43 was limited tooutbreaks in recognition of the fact that the liability being imposed was strict.[133] It follows from all of this that if Leisure Investments is correct and the fire thatdamaged the respondents' property is properly characterised as the spread of anexisting fire (the Marleys Hill fire) rather than an outbreak then regardless of whetherLeisure Investments was negligent the Judge should have dismissed the s 43 claimfrom the outset.[134] While the parties agree the two words "outbreak" and "spread" were intendedto mean different things, they do not agree on the features that differentiate one fromthe other. Unfortunately, neither word is defined in the Forest and Rural Fires Act andthe issue is not specifically addressed in any of the background legislative material.[135] Adding to the difficulty is that none of the decided cases involves a factualsituation similar to this one where the claim in effect depends on there being twoactionable outbreaks: the first the Marleys Hill fire ignited by the arsonist and thesecond the fire that (to use a neutral expression) emanated from the Park. As a result,this is the first occasion on which the issue of what is an outbreak as opposed to aspread has been considered in any depth.42 The term "occurrence" appears in ss 20 and 34; "outbreak" appears in ss 20, 21, 32, 35, 36, 38 and43; and "spread" appears in ss 2, 14, 20, 21, 23, 25, 32, 34, 35, 36, 38, 39, 40, 45, 53 and 58.43 See for example s 32.44 See for example s 34.[136] Mr Walker referred us to s 53 of the Forest and Rural Fires Act which uses thephrase "the origin of the fire or the spread thereof" and argued that this supported theinterpretation of "outbreak" as meaning the original fire, and not a secondary ignition.So too in his submission did the dictionary meaning of "spread" cited by the Judge,being to "open something out so as to increase its surface area" or to "extend ordistribute over a large or increasing area".45 That, Mr Walker argued, is exactly whathappened on 15 February 2017 in the Port Hills.[137] Mr Walker further argued it was unreasonable and artificial to conclude theignitions below the chairlift caused by the arsonist's fire constituted a new outbreak.He contended that what happened in this case was no different from a common formof fire spread, namely where brands and embers from an existing fire are carried onthe wind ahead of the fire to ignite new flammable material.[138] As will be apparent, if that were correct, it would arguably mean that in theLegg decision Mr and Mrs Legg should not have been found liable for the fire thatreignited several weeks later in dry and windy conditions. When that contention wasput to Mr Walker, he responded by submitting that the issue of whether the reignitionwas an outbreak was never considered in Legg and further that unlikeLeisure Investments it was Mr Legg who lit the original fire.[139] For the property owners, Mr Ring accepted that the word "spread" in thecontext of fire is used in the sense of a fire expanding its borders or even movinglocations. He also accepted "spread" can be used colloquially and generally to referto any new fire location. However, he argued that for the purposes of s 43, regardmust be had to the "[i]ndustry/technical meaning of spread" which in turn means thata distinction should be drawn between, on the one hand, the "passive" spread of a fireby natural forces, and on the other, the "active" spread of it as a result of human ormechanical intervention or agency. The fire at issue was in the latter category. It wasa case of igniting material being physically transported by human agency from themain fire to a secondary location where it then ignited combustible material. It was45 High Court judgment, above n 1, at [134].therefore no different in principle from someone uplifting a firebrand and dropping itin a different and removed location.[140] We have found this a difficult issue to decide.[141] While the bright line test suggested by Mr Ring – "spread" is limited to theexpansion of a fire due to natural forces, but once human or mechanical agency isinvolved it becomes an "outbreak" – has some obvious attractions, it is not without itsproblems.[142] It relies on technical understanding of what is meant by a spread but there isno evidence before us of any such general technical understanding. Mr Ring did referus to American literature but there is no evidence that terminology has been adoptedin this country. Indeed, it is arguably inconsistent with aspects of the reports of theNew Zealand fire authorities regarding the fire in this case. While arguably consistentwith the Garnett case, the test is also difficult to reconcile with Legg as well as s 25 ofthe Act. Section 25 creates an offence of "negligently permit[ting] any fire to spread"and although "permitting" can arguably be characterised as passive, the section doesclearly contemplate it is possible for spread to occur by human act or omission.Further, when asked by us whether a fire caused by an arsonist throwing an acceleranton an existing fire would be in the same category under his test as transporting theembers to a new location (the latter being Mr Ring's paradigm example of an outbreak)he was uncertain.[143] On the other hand, we do consider there is some force in Mr Ring's argumentthat the use of "outbreak" in the context of personal responsibility for the outbreakmust be intended to refer to the sudden existence of a fire at a time and place wherepreviously there had been no fire, the fire starting in a particular way and caused bythe defendant. We also agree it cannot have been intended that a fire resulting fromsomeone lifting embers from an existing fire and relocating them near flammablematerial elsewhere would be outside the scope of s 43. That would in our view be anabsurd result and contrary to the purpose of s 43 as identified in Tucker. There is noreason either as a matter of language or statutory purpose and policy which would inour assessment justify taking the absolute position that in any given scenario there canbe only one outbreak.[144] We consider that it is ultimately a matter of impression as to whether the firethat damaged the respondents' properties can properly be described as a new anddistinct fire and so an outbreak, or whether it was the spread of an existing fire. Inshort, it is a matter of fact and degree. Each case must turn on its own facts.[145] In our view, there are two critical factors in this case. The first is that the firewhich damaged the respondents' properties was ignited beyond the head of thespreading fire. The second is the very significant element of transportation that wasinvolved in creating the fire. Having regard to those two factors, we conclude that thefire at issue was an outbreak for the purposes of s 43.[146] It follows from all the above that we are satisfied the pre-requisites to liabilityunder s 43 were made out and that the Judge was correct to find Leisure Investmentsliable.[147] We now turn to consider the third cause of action.NuisanceThe argument[148] The tort of private nuisance is concerned with protecting the right of an owneror occupier of land to the quiet use and enjoyment of their land, free from unreasonableinterference. The interference must be both substantial and unreasonable before it willbe actionable.46[149] Mr Walker identified the basis on which the Judge found Leisure Investmentsliable in nuisance as being:(a) a party need not have acted negligently to be liable in nuisance;4746 See generally Bill Atkin "Nuisance" in Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters,Wellington, 2019) 533 at [10.2.01]–[10.2.03].47 High Court judgment, above n 1, at [200].(b) the focus is on the unreasonable effect of the interference on theclaimant's enjoyment of land, rather than the reasonableness of thedefendant's conduct;48(c) Leisure Investments created a state of affairs that caused the outbreakof the Chairlift Fire on its property, which was a nuisance;49(d) the nuisance was avoidable if Leisure Investments had removed thechairs earlier;50 and(e) the damage caused by the Chairlift Fire was reasonably foreseeable.51[150] On appeal, Mr Walker took particular issue with a statement made by the Judgethat if physical damage is caused to a neighbouring property, there must have been anunreasonable use of land by the defendant.52 In Mr Walker's submission, if that werecorrect it would mean that every fire constitutes a nuisance. The Judge still needed tohave regard to the reasonableness of the defendant's conduct to assess whether theeffect was unreasonable.[151] Mr Walker further developed this argument to submit that where an arsonisthas started a fire which has come onto the defendant's land and then because of somefeature of that land or the defendant's operation, the fire has accelerated or spread in aparticular way, the resulting interference with the claimant's use or enjoyment of theirland should only be considered unreasonable if the defendant was at fault in respectof the feature. It has to be reasonably foreseeable that the fire would accelerate or bespread by reason of the feature.[152] This case, he submitted, had to be fairly treated as one of a defendant dealingwith a third party fire, rather than starting its own fire.48 At [203].49 At [201].50 At [207].51 At [211].52 At [206].Our view[153] We acknowledge the existence of authority that where a nuisance proceedsfrom a state of affairs created on a person's land due to the unauthorised act of a thirdparty over whom the occupier has no control, the occupier is not strictly liable.53[154] However, it is also the law that if such an occupier continues the nuisance theywill be liable. An occupier is considered to have continued a nuisance if withknowledge of it they fail to take reasonable steps to remove or abate it.54[155] In this case, even if the fire is considered a spread rather than a new fire, it wasunquestionably the actions of Leisure Investment which caused the spread, actionswhich we have found were unreasonable.[156] We therefore conclude the Judge was correct to find Leisure Investments liablein nuisance as well as in negligence and under s 43 of the Forest and Rural Fires Act.Damages[157] The focus in the High Court in relation to damages was on the claims made bythe owners of the four most seriously damaged properties, namely Mrs Grace, Mr andMrs Kwon, the Pflaums and the Flanagans.[158] As the Judge noted, the claims made by those owners were generally advancedon the basis they were entitled to recover what their respective insurers paid to settleclaims under their insurance policies, plus additional uninsured losses. To the extentthe claims related to insured losses they were subrogated claims by the insurers.55[159] The Judge also noted that all claimants relied heavily on "extensive" evidenceprovided by a loss adjuster, Mr Bird. Mr Bird undertook an analysis of the quantumof insured and uninsured losses suffered by each claimant. He conducted face to face53 Atkin, above n 46, at [10.2.06(3)], citing among others Sedleigh-Denfield v O'Callaghan [1940]AC 880 (HL); and Goldman v Hargrave, above n 7.54 See Tindall v Far North District Council HC Auckland CIV-2003-488-135, 20 October 2006 at[65]–[70].55 High Court judgment, above n 1, at [213].interviews with many of the claimants and reviewed details of their properties as wellas reviewing documentation relating to the damaged properties and items. He thencollated the information and material he had collected into a master spreadsheet andprepared individual claim summaries. In his evidence, he said he considered all theclaims made appeared to be reasonable, save for a claim for damage to a bicycle, whichwas too remote.56[160] Initially, Mr Bird's evidence was the only material evidence on quantum.During the hearing, the claimants also called evidence on quantum from Mrs Graceand her son, Mrs Kwon and Mr Pflaum.[161] The damages awards made by the Judge comprised compensatory damages aswell as general damages.57 The awards included losses for which the claimants wereinsured as well as uninsured losses.[162] On appeal, Leisure Investments argues that the Judge's approach to damageswas flawed. In particular it contends that:(a) The Judge applied the wrong legal principles by awarding damagesbased on the owners' indemnity entitlements from their insurers insteadof tort principles. This was contrary to the well-established principlethat in subrogated recovery claims, the sum paid by the insurer isirrelevant.(b) Related to the above error, the Judge wrongly awarded damages forlosses in the absence of evidence the particular claimant had actuallysuffered that loss.(c) And finally, the Judge wrongly relied on the hearsay evidence ofMr Bird.56 At [245]–[251].57 General damages are not available in a claim under s 43 of the Forest and Rural Fires Act but areavailable in negligence and nuisance.[163] The complaints are most usefully addressed by reference to individual claims,but before doing so we consider the general question of the admissibility of Mr Bird'sevidence.[164] The Judge expressly acknowledged that aspects of Mr Bird's evidence raisedhearsay issues. However, he went on to note that the hearsay issues were "not pursued to any degree" by Leisure Investments. According to the Judge, "[g]enerally, theyseemed to be overtaken by the parties' approaches to all the evidence, including closescrutiny and cross-examination of Mr Bird as an expert loss adjuster".58[165] Leisure Investments contends the Judge is wrong about this. It drew ourattention to a minute issued by the Judge recording a discussion he had with counselfollowing opening submissions at the hearing. Amongst other matters, the minuterecords that Leisure Investments objected to Mr Bird's evidence on the grounds ofhearsay.[166] However, after recording the objection, the same minute goes on to say thatthis matter (along with others related to the plaintiffs' quantum evidence) was "simplynoted at this point" and that "[n]o directions [were] required from the Court".Mr Bird's evidence was subsequently read into the record without any furtherobjection, clearly leading other participants, including the Judge, to believe that in theinterests of efficiency and economy Leisure Investments had effectively acquiesced inthe evidence being admitted. The Judge estimated that requiring each plaintiff tothemselves give evidence would have resulted in an additional three weeks of hearingtime.59 A further point is that a significant part of Mr Bird's evidence would in anyevent have been within the business records exception to the hearsay rule.60[167] In all those circumstances, we are not persuaded that the admission ofMr Bird's evidence was an error warranting appellate intervention.[168] We also do not accept a further contention that Leisure Investments wasprejudiced by late quantum evidence from or on behalf of the property owners.58 At [253].59 At [375].60 See Evidence Act 2006, ss 17 and 19.No objection was taken to the admissibility of the evidence in terms of its lateness andmuch of it, in any event, was confirmation of Mr Bird's claim summaries which hadbeen provided to Leisure Investments in advance of the hearing.[169] We now turn to the specific claims.The FlanagansRepair costs[170] The Flanagans were an elderly couple and in poor health. Their house, situatedon their farm, had just been reinstated to an as-new condition following damage causedby the Christchurch earthquakes. They had only been back in the house around oneor two weeks when it was again severely damaged, this time by the fire. Mr Flanagansuffered a significant turn in his health as a result of the events of the fire and thecouple could not face the stress of another reinstatement project. They shifted toanother town and then into a retirement village, leaving the farm to be managed bytheir son and the house unrepaired.[171] Under their insurance policy, they were entitled to the reasonable reinstatementcosts required to restore their home to an as new condition.[172] They did not give evidence at the trial.[173] The Judge awarded them damages based on a notional reasonable cost ofreinstating the house, being the same as the cash amount paid under the insurancepolicy which the Judge accepted represented a proper assessment of theFlanagans' loss.61[174] There was no evidence the Flanagans intended to reinstate the house.And Leisure Investments says in the absence of such evidence, the award should havebeen on the basis of loss of value – that is, the difference between the value of thehouse in its damaged condition and its value immediately before the fire – not the costof reinstatement, a cost the Flanagans never incurred.61 At [266]–[269].[175] There is undoubted support for this argument in the case law.[176] The orthodox view is as follows:(a) The basic measure for compensatory damages for physical damage toland and improvements was traditionally the amount by which thevalue is diminished, rather than the usually higher cost of reinstatingthe property to its former state.62(b) In more recent times, the courts have taken a more flexible, pragmaticapproach and will award the cost of reinstatement where the plaintiffintends to restore the property and it is reasonable to do so.63 In Chasev de Groot it was held that the plaintiff "must" intend to reinstate beforesuch an award may be made and therefore the fact the plaintiffs hadalready sold the damaged property meant they were only entitled to thereduction in value.64[177] These propositions are stated in Todd on Torts as representing the current law.65However according to Mr Ring, there are no absolute or rigid rules. The overridingobjective is to be fair to both sides and reflect the extent of the loss actually andreasonably suffered by the plaintiff so as to put them back, as far as money can, in theposition that they were in before the tort was committed. Any so-called rules areguidance only and in any event there is, in his submission, no logical reason for a rulerequiring an intention to reinstate.[178] Mr Ring referred us to a 2004 High Court decision in La Grouw v Cairns,66which he submitted should be taken as reflecting the current legal position inpreference to what was said in Chase v de Groot.62 Bill Atkin "Remedies" in Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington,2019) 1313 at [25.2.08(3)(a)], citing among others Moss v Christchurch Rural District Council[1925] 2 KB 750 (KB); and Cousins v Wilson [1994] 1 NZLR 463 (HC) at 467.63 At [25.2.08(3)(a)].64 Chase v de Groot [1994] 1 NZLR 613 (HC) at 627.65 Atkin, above n 62, at [25.2.08(3)(a)].66 La Grouw v Cairns (2004) 5 NZCPR 434 (HC).[179] In La Grouw v Cairns the defendant argued that damages should not be basedon the cost of cure because the plaintiff had not undertaken the repairs and there wasno guarantee they would do so if damages were awarded on that basis. O'Regan Jrejected that submission and held that intention or lack of intention to reinstate hasrelevance only to reasonableness and hence to the extent of loss which has beensustained, but once that loss has been established, intention as to the subsequent useof the damages ceases to be relevant.67 In coming to that decision, the Judge relied ona House of Lords decision in Ruxley Electronics and Construction Ltd v Forsyth.68[180] Mr Ring also drew our attention to a passage in the judgment of Tipping J inthe Supreme Court decision of Marlborough District Council v Altimarloch JointVenture Ltd and noted that he too endorsed Ruxley.69 The relevant passage reads:[156] It is as well to remember at the outset that what damages areappropriate is a question of fact. There are no absolute rules in this area, albeitthe courts have established prima facie approaches in certain types of case togive general guidance and a measure of predictability. The key purpose whenassessing damages is to reflect the extent of the loss actually and reasonablysuffered by the plaintiff. The reference to reasonableness has echoes ofmitigation. A plaintiff cannot claim damages which could have been avoidedor reduced by the taking of reasonable steps.[181] Although those comments were made in the context of a contract case, Mr Ringsubmitted in effect that they were of universal application in the law of damagesgenerally and that it was significant that Tipping J was the author of Chase v de Groot.We assume the suggestion is that Tipping J had resiled from his previous view in lightof more recent developments.[182] In a later passage in the same Supreme Court judgment, Tipping J did howeveralso say:70Of course the plaintiff must have a genuine intention to expend the damagesto protect the performance interest. If that is not so, it would hardly bereasonable to award damages according to the performance measure.67 At [36].68 Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344 (HL).69 Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11, [2012] 2 NZLR726.70 At [161] (footnote omitted).[183] The footnote at the end of those statements refers the reader to a paragraph inthe decision of Tito v Waddell (No 2) where Sir Robert Megarry V-C graphically saidof a plaintiff:71 why should [the plaintiff] recover the cost of doing work which willnever be done. It would be a mere pretence to say that this cost was a loss andso should be recoverable as damages.[184] Drawing all these threads together, we make the following points:(a) Contrary to Mr Ring's contention, we consider there is a logical reasonfor the approach taken in Chase v de Groot as articulated in Tito vWaddell (No 2).(b) We do however agree there are no absolute rules and that the statementsmade in Chase v de Groot are best seen as a statement of a prima facieapproach.(c) Damages should reflect the extent of the loss actually and reasonablysuffered by the claimant.(d) Where a court is required to choose between alternative measures ofdamages (such as cost of repairs and diminution in value), the courtmust decide whether in the circumstances of the particular case, thehigher yielding measure is reasonable.(e) One of the key factors in determining reasonableness is whether theplaintiff genuinely intends or desires to pursue the course whichinvolves the higher cost.(f) The absence of such an intention or desire is likely to undermine thereasonableness of the higher cost measure.(g) Compelling circumstances will be required before the higher costmeasure will be awarded in the absence of such an intention.71 Tito v Waddell (No 2) [1977] Ch 106 (Ch) at 332.[185] In awarding the Flanagans damages based on the cost of repairs instead ofdiminution in value when they had no intention of repairing, the Judge noted the usualposition. However, he considered that flexibility was required given the "particularand tragic situation which the Flanagans faced following the fires".72 The Judge wenton to say that any decision they had taken not to themselves reinstate (for a secondtime) their lost house was understandable. A pragmatic approach in his view requiredthat the Flanagans were properly compensated for the loss of their brand new highquality home by a full payment to replace it.73[186] Having regard to the principles listed above at [184], we are not persuaded inall the circumstances that this was an error on the part of the Judge warrantingappellate intervention. There were compelling circumstances justifying a departurefrom the prima facie position and awarding damages on the basis of the cost ofreinstatement, even although the Flanagans did not intend to reinstate.Alternative accommodation costs[187] The Judge awarded the Flanagans damages of $30,000 for the cost ofalternative accommodation. This was the amount paid for alternative accommodationcosts by their insurer under their policy.74[188] Leisure Investments argues the claim should not have been allowed in theabsence of any evidence that the Flanagans had actually incurred the costs.The insurance position was irrelevant.[189] We accept, as indeed do the respondents, that as a general rule a plaintiff'sinsurance position is irrelevant. We further accept the usual rule is that a person whoclaims special damages such as the cost of alternative accommodation must prove it.[190] However, we also agree with the Judge that there can be no doubt thatalternative accommodation costs must have been incurred by the Flanagans.Their home was entirely gutted by the merged fire along with contents, vehicles and72 High Court judgment, above n 1, at [267]–[268].73 At [268].74 At [276]–[277].major farm buildings. Alternative accommodation would have been neededimmediately and whether that involved imposing on friends or family there wouldinevitably have been dislocation and other associated costs.[191] The approach taken by the Judge was in our view both pragmatic and just.The figure of $30,000 was in our assessment reasonable.Stress benefit[192] The Flanagan's insurance policy provided for a stress benefit of $2,000 andthis amount was claimed and awarded by the Judge.75[193] Leisure Investments says the claim was in the nature of general damages fordistress, upset and inconvenience and that contrary to established principle thereshould have been no award in the absence of supporting evidence.[194] Again, we accept the usual rule is that a person who claims general damagesfor distress, upset and inconvenience must provide evidence to support their claim bydetailing the impact the defendant's tortious conduct has had on their emotionalwellbeing.[195] However, on the other hand, requiring the Flanagans and the other claimantsto give evidence about the fire's emotional toll would undoubtedly have unduly andunnecessarily prolonged the hearing. Common sense would suggest thatthe Flanagans must have suffered very significant distress. As the Judge put it, theminor $2,000 stress payment would in reality have gone nowhere to address the realstress caused by the circumstances of these harrowing events.76Mrs Grace[196] Before the fire, Mrs Grace was living in a 436 square metres home which wasinsured for a replacement value of approximately $1.12 million. It was destroyed bythe fire. The insurance cover did not cover the full cost of replacing it with a like for75 At [276]–[277].76 At [277].like 436 square metres home and Mrs Grace did not have sufficient resources of herown to make up the balance. She could only afford to replace her destroyed homewith a 284 square metres house at an actual cost of $895,000.[197] The Judge awarded Mrs Grace damages of $1.32 million for the loss of herhouse based on the notional reasonable cost to reinstate a 436 square metres home, thecalculation being done by using the rate per square metre which Mrs Grace had beenquoted for construction of the smaller house that was actually built.77[198] Leisure Investments contends that the Judge's award means Mrs Grace hasbeen overcompensated by some $425,000. In its submission, the award should havebeen limited to her actual rebuild costs, or at most the cost of building the smallerreplacement house together with the depreciated replacement value of the 152 squaremetres that she could not afford to reinstate. It contends the approach taken is contraryto the conventional approach that where reinstatement is carried out in a differentmanner, damages may still be awarded on a notional reinstatement basis but any awardmust not exceed the cost of the work actually carried out.[199] We are not persuaded either of the outcomes posited by Leisure Investmentswould have been a just outcome in the particular circumstances and agree with theapproach taken by the Judge. As Mr Ring points out, had it not been for the fire,Mrs Grace would still be living in her 436 square metres home and when the timecame to sell she would have received its sale proceeds. In contrast, now and for theforeseeable future as a direct result of Leisure Investments' tortious conduct she isliving in a smaller home which when sold will yield a lesser sum.Cost of alternative accommodation and stress[200] Mrs Grace was awarded damages for the cost of alternative accommodationpending completion of her replacement home in an amount that exceeded the sumpayable under her insurance policy.78 Leisure Investments says these costs should be77 At [286] and [290].78 At [301].disallowed, although it is unclear on what basis given that, unlike for the Flanagans,there was evidence these costs were incurred.[201] As regards compensation for stress, although Mrs Grace gave evidence aboutthe significant emotional toll the fire had taken on her, the Judge only awarded her theamount of the stress benefit paid under the insurance policy of $2,000. The Judge'spragmatic approach thus worked on this occasion in Leisure Investments' favour.Sustainability benefit[202] A component of the $1,948,828.21 ultimately awarded to Mrs Grace was$20,000 that was described in the itemised list of insured losses simply as"[s]ustainability". It appeared alongside other items such as the stress payment andaccommodation allowance. This was described by counsel before us as asustainability benefit and appears to represent a component of Mrs Grace's insurancepolicy designed to ensure sustainable materials were used in the construction of hernew house.[203] Leisure Investments says this payment, together with the accommodationallowance and stress benefit, should also be disallowed. We are not, however,persuaded that it should be. There is no reason to doubt that Mrs Grace incurred thiscost as part of the cost of reinstatement. It is, in the scheme of the total damagesawarded, relatively modest and we do not see a reason to interfere with the Judge'scareful assessment of what was reasonable as between the parties.The KwonsContents claims[204] The Kwons sought compensatory damages of just over $307,000 for the lossof house contents. They had calculated this on the basis of the price Mrs Kwon thoughtshe had paid for the items when new. The Judge discounted the amount by 10 per centto account for the depreciation in value since new.7979 At [320]–[324].[205] Leisure Investments contends the amount of the discount was insufficient aswell as being inconsistent with the Judge's treatment of the contents claim made bythe Pflaums. In the Pflaums' case, the Judge applied a discount of 40 per cent despitethe fact that unlike Mrs Kwon, the Pflaums' contents claim was not exclusively newfor old, but also included some old for old.80[206] On the other hand, a comparison between the respective claims also needs totake account of the fact that the Pflaum claim was for a sum three times more than thesum insured and double the next largest contents claim.81 Any complaints aboutinconsistency therefore need to be seen in that light.[207] We are not persuaded the discounts were unreasonable. Appellate interventionis not warranted.The cost of alternative accommodation[208] The Judge awarded Mr and Mrs Kwon damages of $20,000 for the cost ofalternative accommodation.82 This, as in the case of the Flanagans, was the amountthat had been paid under their insurance policy. Unlike the Flanagans, Mrs Kwon didhowever give evidence, including evidence that she had reviewed Mr Bird's claimsheet and that it accurately reflected the loss she had suffered as a result of the fire.[209] Mrs Kwon did not specifically address the issue of alternative accommodation.However, their house was also completely destroyed by the fire. In thosecircumstances we consider it was reasonable for the Judge to infer that alternativeaccommodation would have been needed and that the amount of $20,000 wasreasonable.[210] The stress benefit payable under the Kwons' insurance policy was $1,000 andthat was the amount of the general damages awarded by the Judge.8380 At [355]–[361].81 At [355].82 At [328]–[329].83 At [329].[211] For the same reasons already traversed in the case of the Flanagans, we agreewith the Judge that a discrete payment for alternative accommodation and stress wasreasonable and properly claimed. We are not persuaded that either award should bequashed.The PflaumsGeneral damages and cost of alternative accommodation[212] The Judge awarded Mr and Mrs Pflaum their policy benefits for alternativeaccommodation ($20,000) and stress ($1,000).84 Leisure Investments says they shouldnot have been awarded.[213] Mr Pflaum gave evidence. He said the house was totally destroyed by the fireand that as at the date of the hearing (some three years after the fire) they were stillliving at another property pending a rebuild. He also confirmed in evidence theaccuracy of the items claimed in Mr Bird's spreadsheet.[214] In our view, no objection can be taken to the awards. The Judge did notoverlook the usual principles. He was cognisant of them but in the particularcircumstances considered a pragmatic approach was required. Importantly in the caseswhere he adopted the amount of the insurance pay outs, he did so because, in his view,they represented a reasonable measure of the particular loss and were for that reasonproperly claimable.[215] This ground of appeal is therefore also dismissed.Outcome[216] The appeal is dismissed.[217] As regards costs, there is no reason why costs should not follow the event. Weare also satisfied that the appeal should be classified as a complex appeal given thevolume of material.84 At [368].[218] We therefore make an order that the appellant must pay the respondents oneset of costs for a complex appeal on a band B basis together with usual disbursements.We certify for two counsel.Solicitors:Chapman Tripp, Christchurch for AppellantWotton + Kearney, Wellington for RespondentsSCHEDULE A – complete list of RespondentsCECILE GRACEALEXANDER DOUG PFLAUMBAE KUEN KWONMARK BALOGH AND HLS TRUSTEES LIMITEDAS TRUSTEES OF THE BALOGH FAMILYTRUSTCORY BEYNONPAUL JOSEPH DORRANCE AND DAVID PAULAMODEO AS TRUSTEES OF THE DORRANCEFAMILY TRUSTFABEL MUSIC LIMITEDGRAEME MCVICAR AND JOY MCVICARGAVIN BRINDLEYGREGORY GRAHAMIAN HOUGHTONJAMES FROSTJUNG KWON JANGDARA BIGWOODDAVID BAILEY AND SHARON BAILEYRICHARD WILHELM AND SUSAN WILHELMTERRENCE POWERS AND KAREN POWERSALAN BEUZENBERG ANDDEBBIE BEUZENBERGCHRISTOPHER JOHNSTONE AND KARENJOHNSTONETHE TRUSTEES OF THE TIROHANGA FAMILYTRUSTGRANT POULTNEY AND SUSAN POULTNEYGLEN MENZIES AND TRACEY MENZIESJERRY O'NEILL AND JILL O'NEILLPAUL DORRANCEPETER MORGAN AND MARY BRENNANWARREN FLANAGAN AND VILMA FLANAGANTRACEY COOK AND CLAUDE COOKJOANNE KINLEY AND WAYNE GIBBONNICK THURLEY ANDCATHERINE BARENDRECHTNORMAN MATTHEWSPERCY BULLPHILIP JOHNSTONPEER PRITCHARD AND SONYA ANNE BROOKSAS TRUSTEES OF THE PRITCHARD BROOKSFAMILY TRUSTROSS BONNINGTONSHONA MOORESTEVEN WILLIAMSALAN BEUZENBERG ANDDEBBIE BEUZENBERG AS TRUSTEES OF THEBEUZENBERG FAMILY TRUSTMONIQUE MENTINK AND LANDSBOROUGHTRUSTEE SERVICES NO. 10 LIMITED ASTRUSTEES OF THE MONIQUE MENTINKFAMILY TRUSTMIRANDA ANGELIQUE AND CRAIG NEWBURYAS TRUSTEES OF THE NEWBURY FAMILYTRUSTMIRANDA ANGELIQUE AND CRAIG NEWBURYTIMOTHY FOURNIER AND KATE BRACEFIELDVIKKI PFLAUMSUZANNE MILLAR AND CHRIS MILLARRACHEL CULLENSMARK AND KAREN SINCLAIR