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More specific pleadings needed from plaintiffs in lawsuit arising from Port Hills fire

22 Mar 2024

| Author: Andrea Hilton

High Court Rules 2016, rr 5.26(b), 9.14(e) and 15.1(1) – statement of claim particulars – further particulars – PriceWaterhouse v Fortex Group Ltd CA 179/98, 30 November 1998 – negligence pleadings – Forest and Rural Fires Act 1977 s 43 – privilege – discovery

Grainger v Orion New Zealand Limited [2024] NZHC 389.

 

Successful applications by Orion for further particulars concerning paragraphs 25-26, 28 and 29, and strike out of paragraphs 29.2.3 and 33.2.3 of the plaintiff’s statement of claim.

The plaintiffs owned properties damaged in the February 2017 Port Hills fire in Christchurch. Their causes of action were s 43 of the Forest and Rural Fires Act 1977 and negligence. They claim the fire was caused by two power lines clashing in the strong winds. The clash caused an “overcurrent event” which led to an EDO fuse on Pole AX728 exploding and the resulting metal particles igniting the vegetation beneath, but they cannot say where the overcurrent event occurred.

Orion disputed that the “overcurrent event” occurred at pole AX728, saying it could have been anywhere along the three kilometres of line connected to pole AX728. It wanted the plaintiffs to specify the location at which they claim the power lines clashed. It also sought particulars of what precautions the plaintiffs claim Orion should have taken to prevent the lines from clashing and how it failed to take those precautions.

Orion said there was evidence suggesting the fire had started before the overcurrent event and the fire itself might have caused the overcurrent. It had nearly 23, 500 EDO fuses and they were part of a protection system so it made no sense to claim they caused a fire when activated.

The plaintiffs pleaded that Orion had a duty of care to property owners in the vicinity of pole AX728. Orion breached this duty, they claimed, by failing to prevent power lines clashing in high wind or to mitigate against them clashing. They also said the lines were not tensioned correctly so they moved excessively in high wind.

Orion argued that the plaintiffs had failed to specify the duty of care or how that duty might have been breached. They also failed to plead any standards that Orion should have met or to specify how Orion might have failed to meet those standards. The plaintiffs’ counsel submitted they relied on circumstantial evidence to prove the lines clashed.

Orion claimed that the lines’ exterior coating would have been visibly damaged after clashing but no such damage was identified by Fire and Emergency New Zealand investigators.

 

Applicable principles: Particulars must inform court and other party or parties and would limit trial issues – sufficient particulars prevent trial by ambush – provision of particulars not to be onerous – plaintiff must plead standards relied upon – pleadings must show how defendant is in breach – need to plead loss caused by breach – discovery is not a fishing expedition – unused evidence from different proceedings privileged – information from privileged document not to be used.

 

Held: Application for further particulars granted and plaintiffs to replead paragraph 26 of their statement of claim, filling in the gaps and replead their negligence cause of action. The application for strike out is granted and paragraphs 29.2.3 and 33.2.3 are struck out of the third amended statement of claim.

 

After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practicing local government law.

 

Grainger & Ors v Orion NewZealand Ltd [2023] NZHC 389

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