O'Loughlin v Tower Insurance Limited [2013] NZHC 438 (7 March 2013)

High Court of New Zealand

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O'Loughlin v Tower Insurance Limited [2013] NZHC 438 (7 March 2013)

Last Updated: 27 March 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-002385 [2013] NZHC 438

BETWEEN MATTHEW JOHN O'LOUGHLIN AND VALERIE JEAN O'LOUGHLIN Plaintiffs

AND TOWER INSURANCE LIMITED Defendant

Hearing: 7 March 2013

Counsel: G Shand and KP Sullivan for Plaintiffs

AR Galbraith QC and MC Harris for Defendant

Judgment: 7 March 2013

_{RULING OF ASHER J}

Solicitors/Counsel:

G Shand, PO Box 13090, Armagh, Christchurch 8141. Email: [e-mail]

KP Sullivan, PO Box 5817, Lambton Quay, Wellington 6145. Email: [e-mail]

Gilbert Walker, PO Box 1595, Shortland Street, Auckland 1140. Email: [e-mail]

AR Galbraith QC, PO Box 4338, Shortland Street, Auckland 1140. Email: [e-mail]

O'LOUGHLIN V TOWER INSURANCE LTD HC CHCH CIV-2012-409-002385 [7 March 2013]

Introduction

[1] A ruling is required on the admissibility of the evidence of Dallas Leicester McDonald. Mr McDonald, a deponent for the plaintiff, describes himself as a project manager for a number of building entities who has had 10 years experience in the building industry.

[2] It is now the fourth day of hearing. On the second day of hearing, Mr Galbraith QC for the defendant raised in advance his objection to the admission of this evidence.

[3] Mr McDonald’s brief runs to four paragraphs. The first two paragraphs are

by way of background. The substantive two paragraphs read:

The property is severely damaged. To remedy the house requires reconstruction, rather than repair.

In my view any repair is impracticable. I would not be involved in any attempt to repair the house. As well as being impracticable any repair would not return the house to “as new” condition.

[4] I indicated in my Minute (No.3) of 5 March 2013, dictated after Mr Galbraith had raised the objection, that I was minded to uphold it. I recorded:

[6] Thus, I am minded to uphold Mr Galbraith’s objection. However, it may be that an amended brief could be filed on short notice which does at least briefly set out a reasoning process. Such an affidavit may be of assistance. The risk is, of course, that any such new brief filed at such a late time may prejudice the defendant who will not have an opportunity to respond.

[7] I have decided that the most fair way forward is to adjourn this application for 24 hours to be determined tomorrow morning. I have indicated the order I will make should the brief not be amended. If the brief is amended, it will then be open to Mr Galbraith to persist with his objection and raise any new issue or prejudice that may arise and I will deal with the application then.

[5] Two days have passed. Mr Shand advises that no amended brief will be offered. Mr Galbraith seeks a ruling.

[6] I have decided that this brief should not be admitted for reasons that I now set out, including those that are already in my earlier minute.

Decision

[7] While Mr Galbraith does not contest that Mr McDonald has provided some evidence of expertise, he objects to this evidence being admitted on the grounds that it is unlikely to provide substantial help to the Court because of its conclusory nature and brevity.

[8] Mr Shand submits that short as it is the evidence will assist the Court and directly addresses points in contention.

[9] Statements of opinion are prima facie inadmissible.1 However, s 25 of the Evidence Act 2006 sets out the basis upon which they can be admitted. The opinion of an expert in a proceeding is admissible if the fact finder is likely to obtain substantial help from that opinion in understanding other evidence in the proceeding, or in ascertaining any fact that is of consequence to the determination of the proceeding.

[10] These very broad statements from Mr McDonald will not assist me in either of those tasks. His evidence touches on matters that other experts have dealt with in detail. Bald statements such as these cannot be weighed or evaluated by a fact finder. For that to be done, the fact finder must know at least an outline of the facts relied on by the expert and his or her reasoning. No attempt is made in this brief to present either.

[11] Mr Galbraith has indicated that he will not cross-examine Mr McDonald. I do not regard that indication as unreasonable or tactical. Mr Galbraith will have no idea at all of what answers he might get if he sought to probe Mr McDonald’s conclusions. He might well be faced with new assertions that he would have no

_{opportunity to evaluate or properly contest.}

1 Evidence Act 2006, s 23.

[12] As I have indicated I will get no help from such bald conclusory statements. The only way that I could get assistance if Mr McDonald was called would be to ask him some questions myself as to his reasoning, but I would then be exposing the defendant to prejudice and new material could well come forward of which it had no notice.

[13] I must say that in evaluating the help I might get from the evidence, I am also conscious of Mr McDonald’s or the plaintiffs’ failure or inability to provide reasons despite my indication and the provision of an opportunity to do so. This in itself puts a further question mark over the value of his evidence.

[14] The issue can also be considered in terms of s 8 of the Evidence Act 2006, that is, in assessing its probative value against its unfairly prejudicial effect. For the reasons I have mentioned these bald conclusory statements have little or no probative value. Standing alone, however, they could be seen as having an unfairly prejudicial effect in that they are of a conclusory nature adverse to the defendant’s position. As I have said, if weight was to be placed on them, that would arise from further questioning into areas of which the defendant will have no advance knowledge.

[15] I conclude therefore that Mr McDonald’s evidence should not be admitted.

[16] If a fuller and more helpful brief was provided that would be considered on its merits. Although, of course, there would have to be an application to call a witness without an advance brief and that would have to be considered.

...................................

Asher J