LOCKIE V NORTH SHORE CITY COUNCIL HC AK CIV 2007-404-6546

LOCKIE V NORTH SHORE CITY COUNCIL HC AK CIV 2007-404-6546

The court held that the negligence simplicita claim was misconceived and the negligent misstatement claim failed because Walls, as an employee acting for his employer and on company letterhead, did not personally assume responsibility to the plaintiffs; accordingly there was no proximate duty to impose personal liability. On the affidavit evidence the third defendant satisfied the summary judgment test that none of the plaintiffs' causes of action against him could succeed. The s 4 Limitation Act 1950 bar applied to the pleaded claims; the contractual limitation point required further inquiry and was not finally determined.

Citation
openlaw-615e7ffd_97da_4cff_b3b4_ddcf851a4ea2.pdf
Parties
First Plaintiffs: BRYAN ALLAN LOCKIE; PATRICIA JOAN LOCKIE; MILES ANTHONY AGMEN-SMITH AS TRUSTEES OF THE LOCKIE FAMILY TRUST; Second Plaintiffs: BRYAN ALLAN LOCKIE; PATRICIA JOAN LOCKIE; First Defendant: NORTH SHORE CITY COUNCIL; Second Defendant: CORNELIS GERARDUS FRANCISCUS BROOS; Third Defendant: KELVIN LEONARD WALLS; First Third Party: CHRISTOPHER BRUCE COLEMAN; Second Third Party: BRIAN JAMES JONES; Third Third Party: LUMLEY GENERAL INSURANCE (NZ) LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 July 2011
Procedural Posture
Civil Tort Claims (negligence and Negligent Misstatement); Interlocutory Applications / Applications to Strike Out and for Summary Judgment (interlocutory)
Outcome
Summary judgment entered for the third defendant (Kelvin Leonard Walls); plaintiffs' claims against him dismissed; costs reserved
Legal Topics
Summary Judgment, Strike Out, Assumption of Responsibility, Employee Versus Corporate Liability, Limitation Period (s 4 Limitation Act 1950), Pre Purchase Inspection Reports
Tort Negligence Negligent Misstatement Contract Law Civil Procedure Limitation Law Summary Judgment Strike Out +4 more

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Parties

BRYAN ALLAN LOCKIE; PATRICIA JOAN LOCKIE; MILES ANTHONY AGMEN-SMITH AS TRUSTEES OF THE LOCKIE FAMILY TRUST

First Plaintiffs

BRYAN ALLAN LOCKIE; PATRICIA JOAN LOCKIE

Second Plaintiffs

NORTH SHORE CITY COUNCIL

First Defendant

CORNELIS GERARDUS FRANCISCUS BROOS

Second Defendant

KELVIN LEONARD WALLS

Third Defendant

CHRISTOPHER BRUCE COLEMAN

First Third Party

BRIAN JAMES JONES

Second Third Party

LUMLEY GENERAL INSURANCE (NZ) LIMITED

Third Third Party

Procedural Posture

Civil Tort Claims (negligence and Negligent Misstatement); Interlocutory Applications / Applications to Strike Out and for Summary Judgment (interlocutory)

Legal Issues

  1. 1 Whether a duty of care in negligent misstatement arose by assumption or imputation of personal responsibility by the employee (Dr Walls)
  2. 2 Whether the negligence claim (negligence simplicita) is viable versus negligent misstatement
  3. 3 Whether the plaintiffs' claims are statute-barred under s 4 Limitation Act 1950

Ratio Decidendi

The court held that the negligence simplicita claim was misconceived and the negligent misstatement claim failed because Walls, as an employee acting for his employer and on company letterhead, did not personally assume responsibility to the plaintiffs; accordingly there was no proximate duty to impose personal liability. On the affidavit evidence the third defendant satisfied the summary judgment test that none of the plaintiffs' causes of action against him could succeed. The s 4 Limitation Act 1950 bar applied to the pleaded claims; the contractual limitation point required further inquiry and was not finally determined.

Court Disposition

Summary judgment entered for the third defendant (Kelvin Leonard Walls); plaintiffs' claims against him dismissed; costs reserved

Orders

  • Summary judgment entered against the plaintiffs on the third defendant's application
  • Cause of action under the Fair Trading Act 1986 against the third defendant struck out by the plaintiffs' concession