Gisborne District Council v Port Gisborne Ltd
(Now Known as Tauwhareparae Farms Ltd) (CA)

IN THE COURT OF APPEAL OF NEW ZEALAND
CA118/06
[2007] NZCA 344

BETWEEN GISBORNE DISTRICT COUNCIL
Appellant

AND PORT GISBORNE LIMITED (NOW KNOWN AS TAUWHAREPARAE FARMS LIMITED)
First Respondent

AND TWIN BRIGHT SHIPPING CO SA & SOKI KISEN CO LIMITED
Second Respondent

AND ADSTEAM HARBOUR (NZ) LIMITED
Third Respondent

AND EASTLAND MOORINGS LIMITED
Fourth Respondent

Hearing: 10 May 2007
Court: Hammond, Arnold and Ellen France JJ
Counsel: M G Ring QC and L J Taylor for Appellant
C R Carruthers QC and R W van Panhuys for First Respondent
A Paterson (observing) for Third Respondent
Judgment: 10 August 2007

JUDGMENT OF THE COURT

A The appeal is dismissed.
B The first respondent is entitled to costs of $3,000 together with usual disbursements.

REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents Para.No
Introduction [1]
Issues [4]
Factual background [5]
The parties [5]
The incident [9]
A harbourmaster [11]
The pleadings [12]
The ship’s owners’ claim against the port company [12]
The port company’s claim against the council [13]
The High Court judgment [22]
Statutory context [25]
The appeal [37]
Nature of the duty alleged [40]
Need for a fact-specific inquiry? [45]
Proximity where situational duties alleged [56]
Other proximity and policy considerations [61]
Causation [72]
Result and costs [75]

Introduction

[1] On the evening of 6 February 2002 the Jody F Millennium ran aground after being asked by the port’s main pilot and Maritime Services Manager, Captain Sands, to leave the Port of Gisborne in face of inclement weather and port conditions. The ship’s owners sued the port company Port Gisborne Ltd (now Tauwhareparae Farms Ltd) for their losses. Port Gisborne Ltd joined Adsteam, who is Captain Sands’ employer; Eastland Moorings; and the Gisborne District Council (“the council”) as third parties.

[2] The claim by Port Gisborne Ltd (“the port company”) against the council was based on breach of statutory duty and negligence. In terms of the negligence claim, the port company claimed the council owed duties of care to appoint a harbourmaster who was employed full-time and locally resident. The port company also claimed that the council had a duty to give the harbourmaster a swell forecast the council had received from the MetService to warn of possible coastal erosion so that the harbourmaster could pass that information on to the port company.

[3] In a decision delivered on 26 May 2006, Williams J struck out the port company’s claim against the council for breach of statutory duty but declined to strike out the negligence claim against the council: HC GIS CIV 2003-416-1. The council appeals against the decision not to strike out the negligence claim.

Issues

[4] The issues on appeal are whether:

(a) The port company’s argument that the council owed a duty of care is tenable; and

(b) There is a tenable causative link between the alleged breaches of duty and the harm suffered.

Factual background

The parties

[5] At the time the vessel went aground, the port company was an indirect wholly owned subsidiary of the council. The port company was established as the port operator for the Port of Gisborne in 1988 under the Port Companies Act 1988. It was a local authority trading enterprise (“LATE”).

[6] Twin Bright Shipping Company SA is the registered owner of the vessel. The ship was at the relevant time in the beneficial ownership and management of Soki Kisen Company Limited.

[7] Adsteam had a contract with the port company for the provision of marine services at the Port of Gisborne. In this capacity, Adsteam appointed Captain Sands as its Marine Services Manager at Gisborne and its principal pilot at the port. The council had licensed Captain Sands as a pilot.

[8] Finally, Eastland Moorings Limited, the second third party, at the pertinent time had a contract with Adsteam to provide mooring services.

The incident

[9] The Jody F Millennium berthed at Port Gisborne on 3 February 2002 to take on a cargo of logs. As Williams J explains at [13], on and in the days prior to 6 February 2002, Poverty Bay, and the Port of Gisborne in its north-east corner, “was subject to a gale from the southerly quarter with accompanying large swells”. The Judge continued at [14] noting that at about 2138 hours on 6 February the vessel left its berth and commenced to make its way to sea through the harbour exit channel. At [14] Williams J observed:

She touched bottom in the channel at about 2152 hours. The grounding damaged her steering and affected her capacity to make sufficient way on the required heading in the then circumstances. She ran aground off Waikanae Beach, only a few hundred metres from the harbour mouth. Despite being partially unloaded and salvors’ efforts, she remained aground for 18 days. She was eventually refloated on 24 February. She was towed to the Port of Tauranga where the balance of her cargo was discharged and temporary repairs effected. She was then towed to Japan where permanent repairs were affected.…

[10] The owners of the vessel accept that the cause of damage was the initial grounding in the exit channel.

A harbourmaster

[11] After 12 months without a harbourmaster, a couple of weeks prior to the incident, the council had appointed Captain Rycroft as a harbourmaster for the Port of Gisborne on a part-time basis. Captain Rycroft lived at Napier and was also employed part-time as the Bay of Plenty Regional Council’s harbourmaster. The council had also appointed five full-time enforcement officers.

The pleadings

The ship’s owners’ claim against the port company

[12] The vessel’s owners’ claim against the port company, relevantly, is based on breach of contract and negligence. The alleged breaches include failing to provide a safe port, allowing Captain Sands to direct the master to leave port at a time when that was unsafe, failing to pass on weather and swell warnings, and allowing Captain Sands to assume the role of “de facto” harbourmaster.

The port company’s claim against the council

[13] Williams J directed the port company to file and serve an amended statement of claim within 21 days of the judgment. An amended claim was not filed within that time frame but a draft amended statement of claim was appended to the port company’s submissions on appeal. The parties agree that the appeal is to be determined on the basis of the draft amended statement of claim.

[14] There are two main aspects to the claim. The first relates to the appointment of a harbourmaster including the alleged failure to resource and support a harbourmaster available to deal with urgent situations. The second aspect concerns the failure of the council to pass on the MetService “Heavy Swell Forecast” for Gisborne Coast to the port company, the harbourmaster, Captain Sands or the ship until it was too late.

[15] The amended pleading starts with the proposition that the council was the statutory authority responsible for the regulation of safety, navigation and use and management of ships at the port. The pleading is that the council had and exercised statutory powers to regulate these matters including specific statutory powers relating to, first, the appointment of a harbourmaster; second, the passing of bylaws; third, the erection and maintenance of navigational aids; fourth, the licensing of pilots; and finally, the gathering of weather information.

[16] Further, the port company avers that with effect from 17 October 1999, the council implemented the Gisborne District Bylaws 1999 in relation to certain harbours within its jurisdiction including the Port of Gisborne.

[17] The duty of care to the port company, port users and the ship is said to arise through the council’s:

(a) Position as the controlling authority of the port;

(b) Relationship of ultimate control over the port company;

(c) Close relationship with the port company through their “inter-related activities”; and

(d) Assumption of responsibility for and the exercise of the powers conferred on it by the statutory provisions.

[18] The port company says that the council has a duty of care to the port company, port users and the ship to ensure that:

(a) In appointing the harbourmaster, the safety and operation of the port is under the direction of an experienced, full-time harbourmaster;

(b) By appointing a harbourmaster, the harbourmaster was available to deal with urgent situations;

(c) Having appointed the harbourmaster, that he was resourced and supported so as to be able to give advice to masters and the pilot about safety and method of ship movements; and

(d) Information including the swell forecast was provided promptly to the port company.

[19] The alleged breaches of this duty of care are said to arise through the belated appointment of a part-time harbourmaster residing in Napier, the failure to resource and support the harbourmaster, and the absence of any system in place for monitoring and providing information to the harbourmaster.

[20] The port company says that in breach of these duties, the council did not pass the weather report received onto the port company until it was too late. The alleged consequence of the breach is that Captain Sands and the ship did not get the assistance they should have got. They could have sailed earlier. Further, it is claimed that an experienced harbourmaster would not have allowed the ship to depart when it did.

[21] Accordingly, the port company pleads that any loss suffered by the vessel (the plaintiff) was caused or contributed to by the council’s negligence.

The High Court judgment

[22] The starting point adopted in the High Court in terms of proximity was that the port company and the council were pleaded to “have undertaken separate but inter-related activities” (at [110]). Williams J concluded that in order to determine whether there was a duty of care and a breach, fact-specific inquiries were necessary. The Judge put it this way:

[111] Both were involved in the daily operation of the port at the time of the casualty. The District Council’s appointment of a harbourmaster would have been an important aspect of the port’s operation particularly as regards the harbourmaster’s powers vis-à-vis those of the pilot and both were important as regards ship movements. And the actions or omissions of those two functionaries seen against the prevailing circumstances and the actions or omissions of all others involved in the management of the Jody F Millennium leading up to the casualty are fact-specific inquiries which should await determination on evidence given at trial. Plainly, too, the possession and dissemination by the District Council – or lack of it - of weather and swell information is also a factual aspect requiring determination on evidence given at trial. So, too, does whether the circumstances of Captain Rycroft’s appointment and location met the Port Company’s operational requirements and the District Council’s obligations in that regard.

[23] Williams J treated the port company’s claim as a complaint about the way in which the council had exercised its discretion to appoint a harbourmaster. That was a separate matter from the council’s general statutory functions in relation to navigation safety and the council should have recognised that exercising its discretion might foreseeably result in liability for his actions or omissions. The Judge considered it was consistent with the statutory scheme and policy to hold that there was a duty of care in relation to the exercise of the discretion and, in particular, to the resourcing and supporting of the harbourmaster after appointment. Once the power had been exercised, and the council had involved itself operationally in the port to the extent of resourcing and supporting its appointee and, more importantly collecting weather and swell information, there seems to be no reason in policy for such a body, public or otherwise, not to be liable for its failure and the failure of its employee to act in the ways pleaded (at [125]).

[24] Finally, the Judge saw this as a claim for contribution and indemnity in relation to matters such as salvage, towage, claims by third parties and by cargo interests, not a claim for purely economic loss.

Statutory context

[25] It is important to place the claim in its statutory context. The starting point is s 37S(1)(e) of the Local Government Act 1974 (now repealed). Under that section, the council’s functions in relation to the harbour include:

(i) The regulation and control of navigation safety;

(ii) The functions, duties, and powers set out in Part 39A:

[26] Part 39A of the 1974 Act deals with navigation. In terms of s 650A, councils may carry out harbour works. For the purposes of Part 39A, the council’s powers include “erect[ing] and maintain[ing] navigation aids”: s 650A(1)(a)(i).

[27] The appointment of harbourmasters is dealt with in s 650B which provides that a regional council may appoint:

(1) … such harbourmasters and enforcement officers (including honorary enforcement officers) as it thinks necessary for the purposes of this Part.

[28] Section 650B(3) provides that harbourmasters appointed under s 650B(1) “must have such qualifications as may be required by maritime rules”. At the relevant time, the only statutory prescription for harbourmasters was found in the General Harbour (Nautical and Miscellaneous) Regulations 1968 made under the Harbours Act 1950. We come back to those regulations.

[29] The general powers of harbourmasters and enforcement officers are set out in s 650C. The powers of the harbourmaster include a power to enter and remain on any ship (s 650C(1)).

[30] In terms of s 650C(3), for the purpose of ensuring navigation safety the harbourmaster or enforcement officer may give a number of directions regulating various matters including “the time and manner in which any ship may enter into, depart from, lie, or navigate in those waters:” (s 650C(3)(a)).

[31] The harbourmaster has a power to remove ships and hazards (s 650D). In addition, in terms of s 650E, the harbourmaster may regulate some navigation activities, for example, requiring a person who seems to be in charge of a ship to stop and give his or her name and address.

[32] In terms of s 650J, a council may transfer to another public authority any of its functions, duties or powers relating to navigation safety. The council may also delegate to a port operator any functions, duties, or powers concerning navigation safety other than the power to make bylaws. In this section “port operator” includes the port company under the Port Companies Act and “any other operator of facilities for the loading or unloading of cargo or passengers carried by sea”: s 650J(6).

[33] The power to make bylaws concerning navigation and related activities is set out in s 684B. Bylaws maybe promulgated to do a number of things including:

(a) Generally regulate and control, for the purposes of navigation and safety, the use or management of ships (including the mode and place of their mooring, anchoring, position, unmooring and removal):

[34] Section 684C makes it clear that navigation bylaws are not to affect port operations. Bylaws under s 684B are not to limit or affect the ability of a port company or an operator of a port facility to maintain its operations within areas owned or controlled by it except to the extent the council considers necessary in the interests of navigation safety.

[35] Reference should then be made to the long title to the Port Companies Act which provides as follows:

An Act to promote and improve efficiency, economy, and performance in the management and operation of the commercial aspects of ports and, to this end, -

(a) To provide for the formation of port companies to carry out port related commercial activities and control the ownership thereof; and

(b) To establish requirements concerning the accountability and ownership of such companies and the responsibilities of Harbour Boards; and

(c) To repeal the New Zealand Ports Authority Act 1968 and certain other enactments relating to ports and harbours.

[36] Finally, r 49 of the General Harbour (Nautical and Miscellaneous) Regulations 1968 sets out the qualifications for the post of harbourmaster. If the harbourmaster is full-time, he or she must be a British subject of at least 25 years of age and hold a certificate of competency as master of a foreign-going ship (r 49(1)). By r 49(2) he or she must produce up to date certificates of good conduct and sobriety and a medical certificate. Regulation 49(3) requires a candidate for the position of full-time harbourmaster to produce a recent form and colour test certificate. The regulations are silent as to the qualifications for a part-time harbourmaster: see r 49(4).

The appeal

[37] The focus of the oral argument was on the council’s submission that the claim is fatally flawed because the duty alleged is a duty to the port company to protect it from loss arising out of its legal liability for negligence. The council’s case is that there is no such duty. Even if it is wrong about that, the council says there are other problems with the alleged duty such that the claim should be struck out.

[38] The port company’s response is that there is a tenable claim that will turn on factual matters requiring determination at trial.

[39] We deal first with the arguments based on the nature of the duty alleged and then with the council’s more specific criticisms. There is no dispute between the parties as to the principles applicable to the strike-out application. Those principles are well-settled and a recent summary is found in Attorney-General v Body Corporate 200200 [2007] 1 NZLR 95 at [50]-[51] (CA).

Nature of the duty alleged

[40] The council says the allegation is that the council owed a duty to the port company. The council argues that duty can only be to protect the port company from loss by way of liability for negligence and the cases are clear that there is no duty to protect someone from their own negligence. That is put on two bases, first, foreseeability and second, that this is a claim for pure economic loss. In terms of foreseeability, the council submits that a duty is owed only to protect from forseeable harm and the council could not foresee the port company’s negligence.

[41] Hence, the council submits that the Judge has wrongly conflated the vessel’s claim against the port company with the port company’s claim against the council.

[42] The council further argues that this cannot be a claim for contribution in terms of r 75 of the High Court Rules (dealing with third party notices) as the port company now says because the claim is not put on the basis that both the port company and council are liable for the same damage. Rather the council says that the port company’s claim is based on a duty owed by the council to the port company. Mr Ring submits it that is not possible to have a contribution claim which does not rely on the claim made by the plaintiff.

[43] We agree with Mr Ring that contribution in this context arises out of “common liability to the plaintiff (of the defendant and third party)”: McGechan and McQueen (ed) McGechan on Procedure (looseleaf ed) at [HR75.02(1)] and see also Blanchard (ed) Civil Remedies in New Zealand (2003) at [14.3.1]. However, we consider that if the amended statement of claim and the third party notice are given a fair reading, the port company’s claim is for contribution to the physical damage incurred by the vessel. The claim is really put on the basis that both the port company and the council had duties in relation to navigation safety in the port and the council’s breach of its duties has contributed to the damage to the vessel. The duty of care is pleaded as a duty owed by the council to the port company, port users and the ship such that the port company is entitled to an “indemnity or contribution” from the council. The reference to the vessel is also carried through into particulars of breach, the consequences of the breach and the losses suffered. On this basis the claim is, as the Judge found, not limited to pure economic loss. Nor is it properly characterised as a claim to protect against the port company’s negligence.

[44] There is a difficulty in that Mr Carruthers disavowed in oral argument any reliance on pleaded duties to the ship or other port users. Mr Ring submits that it is too late to go back on that. However, we consider we should deal with the matter on the basis of the pleadings. Viewed in that way, the matter is properly put as a claim for contribution. We add here that although it is also pleaded as a claim for indemnity, it is properly characterised as a claim for contribution. To the extent that the Judge referred to both indemnity and contribution, that was not correct.

Need for a fact-specific inquiry?

[45] The council’s first specific complaint is that the Judge was wrong to conclude a fact-specific inquiry was necessary. Rather, the council says, whether the council owed a duty turns on the statutory framework and the policy-orientated nature of the council’s decision.

[46] The council emphasises that the Act contemplates the appointment of a parttime harbourmaster and, in any event, there is no need to appoint a harbourmaster at all. Accordingly, the Court is faced with an alleged duty of care in a situation where the discretion (to appoint a harbourmaster) is exercised within the statutory power and the decision is wholly policy-orientated. The council also submits that in the absence of any actionable statutory duties, there is no tenable basis for the Court imposing common law duties of care. Finally, in terms of the weather information, the council argues that it is no more than a bystander.

[47] As Williams J recognised, the council has a discretion as to whether or not to appoint a harbourmaster. That is apparent from s 650B(1). It is also the case that the legislative scheme contemplates the appointment of a part-time harbourmaster. Nor is there any suggestion that there were qualifications for the position which Captain Rycroft did not possess.

[48] These factors are not the end of the matter as the council would have it. That is because the focus of the claim is on how the discretion has actually been exercised.

[49] The council then maintains that the exercise of the power is not subject to any duty of care because any acts or omissions on its part relate to matters of policy, not to operational matters. The Council relies on the rejection of any duty of care in relation to such policy decisions in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 738 (HL) where Lord Browne-Wilkinson said:

I understand the applicable principles to be as follows. Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist.

[50] This Court in Attorney-General v Body Corporate did not go as far as this preferring to put the matter on the basis that the “more policy-orientated and less operational” the relevant power “the less likely a duty is to be imposed” (at [42]). The Court went on to observe that the policy/operational test is not always easy to apply.

[51] In any event, we consider the exercise of power involved here is not necessarily policy-orientated or at least not solely policy-orientated. Williams J at [124] described the pleading as “perhaps” a failure to appoint a competent official but, more directly, an allegation of failure to “resource and support [Captain Rycroft] sufficiently – including by giving him its latest weather and swell information such that he could be involved in the decision for the ship to leave port”. The pleading is not confined to the failure to pass on the weather information. In this context, the effect of the statutory scheme is certainly to give the council a role, albeit a limited one, in operational issues.

[52] Although the statutory scheme does not support the imposition of a claim based on breach of statutory duties, that does not mean there can be no common law duty. It is still possible for common law duties to arise especially as the duty alleged is not inconsistent with the statutory scheme.

[53] In terms of the duty to provide weather information, the legislation is silent about that. However, the Council having appointed the harbourmaster and having some duties in terms of navigation safety, could arguably have had to put some system in place for the transfer of such information.

[54] Against this background, what would a fact-specific inquiry add? In our view, the Judge put it correctly when he said:

[112] …what would be critical at trial is assessment of the materiality of the actions and omissions of all those actually or potentially involved in the “Jody F Millennium” being where she was, when she was, and grounding as and when she did. The … Council cannot assert that the actions or inactions pleaded against it in relation to its appointment of the harbourmaster and the way in which it dealt with weather and swell conditions is not capable of playing a part in that pivotal question. That potential risk-sharing strongly suggests that, in that aspect of the … Council’s pleaded activities, there was sufficient proximity between the Port Company and the Council to justify the imposition of a duty of care on the latter, or that, at least, the factors just discussed mean the position is better judged on the evidence.

[55] It may well be possible, as Mr Carruthers submitted, for evidence as to industry practice in relation to the operation of ports to shed some light on whether or not the council owed a duty. For that reason, strike-out would be premature.

Proximity where situational duties alleged

[56] The council’s second specific criticism is based on the approach to be taken where situational duties are alleged, that is, where the claim is focused on particular circumstances of risk.

[57] The council says the Judge did not properly apply the relevant principles in Attorney-General v Body Corporate. In that case, this Court said at [46] that where a plaintiff relies on situational duties the court in the proximity phase of the inquiry should:

[B]e careful to ensure that the narrow duty alleged can credibly be regarded as discrete from a broad (and untenable) duty of care in relation to the relevant statutory functions;…

[58] The Court also emphasised the need in assessing policy considerations to “analyse carefully the implications, in terms of the scheme and structure” of the statutory framework “of recognising even a situational duty”: at [46].

[59] We see no error in the approach taken in the High Court on this aspect. Williams J acknowledged the need to treat the allegations relating to the harbourmaster as separate from the council’s general functions. The Judge did not see those general functions as capable of giving rise to a claim in negligence.

[60] The council’s real concern, and that reflected in this Court’s observations in Attorney-General v Body Corporate is that the alleged duty is too broad and indeterminate, especially given the policy drivers behind the council’s decision. However, as we have discussed, we do not see the matter as solely policy-driven. In any event, all that is being said is that there is a basis for concluding that these matters should be determined at trial.

Other proximity and policy considerations

[61] Finally, the council argues that other proximity and policy considerations militate against the imposition of duties.

[62] In this context, the council addresses the primary proximity factors set out in Attorney-General v Body Corporate and says these tell against the imposition of a duty of care. Ultimately, the council says it is not “just and reasonable” to impose the duty alleged (Attorney-General v Body Corporate at [36]).

[63] The primary proximity factors as set out at [37] in Attorney-General v Body Corporate are as follows:

(a) whether duties of care have been imposed in analogous situations;

(b) the substantiality of the nexus between the defendant’s alleged negligence and the plaintiff’s loss (a factor which may to some extent overlap considerations of remoteness and causation);

(c) general considerations of vulnerability on the part of the plaintiff and the potential burden on the defendant (or others similarly placed) of taking precautions against the risk in issue …; and

(d) the nature of relevant risk.

[64] In terms of analogous cases, Mr Ring says he is unaware of any similar case where a duty of care has been imposed. The submission is that the proposed duty and, particularly, the degree of proximity cannot be based on the parent/indirect subsidiary relationship. That would be inconsistent with the immunity of a shareholder for the conduct and management of its subsidiary: Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZLR 513 (PC); and Dairy Containers Ltd v ANZ Bank Ltd [1995] 2 NZLR 30 at 89 - 90 (HC).

[65] On the degree of nexus, the council argues there is no substantial nexus particularly as the harbourmaster was never consulted.

[66] The council submits that the port company was not vulnerable in the sense this factor requires.

[67] For the reasons discussed above, the council also says the relevant risk is the purely economic risk of the port company’s liability for negligence. We have already dealt with this aspect.

[68] On the first point, about analogous cases and the parent/indirect subsidiary relationship, Williams J observed, correctly, that:

[112] While it would be unusual to impose a duty of care on the ultimate parent company of a subsidiary, legal obligations of port companies are reasonably well established as are those of pilots and harbourmasters so that such a linkage is not definitive against the finding of a duty of care.

[69] We do not see the imposition of a duty in this case as cutting across the position in other analogous cases.

[70] As to the degree of nexus, the point is that the evidence at trial may reveal some industry practice as to what a prudent council would have done in this case.

[71] While the port company was not vulnerable that is not the focus here. In any event, however, overall, in our view it was open to the Judge to conclude matters of proximity led to allowing the claim to proceed.

Causation

[72] Williams J expressed his conclusion on causation at [130]:

[I]f the allegations against the … Council concerning the harbourmaster and to the weather and swell information are made out, it is arguable they may have played a causative part in the ship being where she was when she was, and thus being causative of the grounding and the amounts claimed flow from that.

[73] In reliance on Price Waterhouse v Kwan [2000] 3 NZLR 39 at [28] (CA), the council says that the port company has to show that the council’s act or omission constituted a material and substantial cause of the loss. It is not enough to show that the act or omission merely provided the opportunity for the loss to occur.

[74] Todd (ed) The Law of Torts in New Zealand (4ed 2005) at [21.3.01] makes the point that the defendant is not liable if he or she “has done no more than contribute to the coincidence of time and space in which damage could happen”. However, once the claim is properly read as a claim for contribution, this argument can only be dealt with once the relevant factual findings have been made. There is no error in the Judge’s approach to causation.

Result and costs

[75] For these reasons, the appeal is dismissed. The first respondent is entitled to costs of $3,000 together with usual disbursements.

Solicitors: Minter Ellison Rudd Watts, Wellington for Appellant
Langley Twigg, Napier for First Respondent
Rennie Cox, Auckland for Third Respondent
Kennedys, Auckland for Fourth Respondent