Claims - Parry Field Lawyers

Why weren’t Board members liable in the Port of Auckland case?

By Steven Moe (Partner) and Hannah Carey (Special Counsel) at Parry Field Lawyers

Former Port of Auckland Chief Executive Tony Gibson has recently been sentenced for health and safety breaches. It’s the first time a high profile CEO has had such a prosecution brought which was in relation to the death of stevedore Pala’amo Kalati in 2020. The outcome: he will pay a $130,000 fine and $60,000 in costs.

Judge Steve Bonnar at the sentencing noted that the CEO had been a “hands-on CEO in relation to health and safety issues at the port”. Perhaps that ironically worked against him, as it may have highlighted and showed a failing in this area. The judge said he had “failed to exercise the care, diligence and skill” which is expected of a reasonable officer.

The impact of the case, and an obvious question

This will likely have a chilling effect on those being recruited for CEO roles – but as this news broke it led to an obvious question. What about the Board of Directors? They seem to be largely silent in the proceedings, yet surely, they were integral to the health and safety at the company as well?

When we talk with clients on governance or provide training an essential part involves emphasising that it is the “PCBUs” who are ultimately responsible. That acronym stands for a “Person Conducting a Business or Undertaking” – and that includes the Directors.

The reason Officers have such potential liability is that they can exercise significant influence over how the business is done.

In this case Maritime NZ brought the prosecution against the CEO and the Company, not the Directors. The Company itself pled guilty and paid fines of more than $500k and the Judge noted it had paid a large amount in private reparations to the family.

So why was the CEO charged?

Mr Gibson was charged alongside the Company and this was done as it was alleged that he did not exercise the due diligence needed to keep workers safe and ensure that the company complied with its health and safety obligations.

In Mr Gibson’s case, he was alleged to have failed to take a number of steps and had not done the following. This had resulted in the exposure of the workers at the Port to risk of death or serious injury because of a failure to:

Take reasonable steps in order to ensure that the company had appropriate processes in place as well as resources that ensured they were followed, so as to minimise or eliminate key health and safety risks; and
After they were in place, take appropriate steps to verify the actual provision and use of those resources and processes.

The key factors that led to the CEO being liable

The key factors here regarding why it was the CEO and not Board members who had the proceedings brought against him appear to relate to the fact that the CEO had been the one tasked by the Board with a role of leading the Port company.

This included ensuring its systems and processes were in place to ensure the safety of workers and compliance for health and safety. It also seems that he was ultimately responsible for health and safety at the Port.

Practically speaking, this also meant that Mr Gibson had the capacity and ability to influence the conduct of those responsible for this area at the Port Company. This extended to ensuring reporting processes and policies were in place so that any failures could be addressed prior to their occurring. In other words, the buck stopped with him.

This was shown by the fact that:

Mr Gibson was not a hands-off or remote CEO, operating at a significant distance from the Port Company’s day-to-day operations. Ironically, this may have made him more liable. This is because he personally took the time to get to know the key risks and what controls were or were not in place. As one example of this, Mr Gibson knew of the high risks involved in stevedoring and the role of the workers, including the specific risk (which was handling suspended loads) which eventually led to Mr Kalati’s death.
There were other examples of this which likely influenced the decision to bring the action against him. Some of these included:
- While there seems to have been a Health and Safety Committee in place it had actually not carried out its responsibilities – and that was down to Mr Gibson being ultimately responsible for it.
- Yearly health and safety strategy plans in those years which were adjacent to the incident had not been prepared by the company and that was something Mr Gibson was responsible for and approving.
- While there had been an external audit two years before the recommendations for how to improve health and safety, this had not been implemented and Mr Gibson both knew of the recommendations and was also aware that they had not been actioned yet.

The Judge noted that he had not considered hard controls which might have included signage, or barriers, and adequate lighting around operating cranes. However, it seemed clear that a reasonable CEO, with Mr Gibson’s knowledge and experience, would have looked at the practises in place and seen the shortfalls and ensured additional steps were taken to address any shortfalls.

Was this the right approach … how about those Directors?

Even if the situation really was the way it is described in the case it is still unclear to us why proceedings were not brought against the Directors of the Company as well. Is it really because the CEO in this instance had taken on the full burden of the Health & Safety risk?

At a policy level surely, this is going to send the wrong signal – the Board has the ultimate say on how the company fulfils its mission. Yet this result might lead to Boards allocating important supervision work to a CEO as a way to try and abdicate responsibility (and liability) for health and safety. That is unlikely to be the result that is wanted.

It appears that the Court itself recognised this point. This is because it was noted that they were not placing weight on the mere fact that the Board had provided approval of Mr Gibson’s performance. Also, it was noted that the Court was not being asked to consider failings by any other officers (that is, the Directors) – because the prosecution had not been brought against them.

Boiling it down to the essence of the issue

While directors are all officers and, therefore, could theoretically all have been charged, we think the actual decision appears to come down to Mr Gibson having taken on more specific responsibilities, and having more influence in relation to health and safety matters, than the directors. This led to it being easier to show he had more ability to influence the conduct of the company.

We imagine because this was the first of its kind case in NZ, that it was the lowest hanging fruit that they went after, in the hope of a successful prosecution. But every case is going to be very fact specific and the Judge did indicate that, just because you’re not hands on, doesn’t mean you will avoid being charged or avoid liability. You still need to exercise oversight/make appropriate enquiries.

For example, the Judge seemed to recognise this tension and did this when commenting on the difference between what an officer (ie a director) might know vs the practical implementing to happen at paragraph 55:

“A practical tension exists, therefore, between the purpose of the legislation, which is to sheet home the due diligence duty to those at the “apex of large hierarchical organisations” and the fact that officers in such organisations will be, by virtue of the nature of their role and the size of such organisations, removed from the day-to-day implementation of business systems, processes and health and safety standards. There may be several tiers of management sitting between the officer and those on the shop floor. It is clear, however, from the scheme of the legislation and existing authority, that an officer cannot comply with his or her due diligence obligations by simply relying upon those with specific responsibilities for health and safety in the management chain below them or by assuming, without proper enquiry, that the organisation’s systems are adequately addressing health and safety risks.”

Some key takeaways

We have focussed on the fact that it was the CEO who was charged and not the Directors.

While each health and safety prosecution is always highly fact specific, if you are an officer, even in a large organisation, we recommend that at a minimum, a board should ensure that they:

Don’t just rely on others – this includes those with specific health and safety responsibilities, as you need to check that the systems you believe are there are actually in place and even more important, are being implemented.
Understand and are familiar with the operations of the business and the activities and the work carried out – that way any risks or hazards will be both properly identified and can be proactively addressed.
Ensure that you stay updated by having effective reporting lines, which will ensure that you get ongoing information.
Ensure that if you have assigned health and safety obligations to certain roles, or those with specialist skills, that they do in fact have the ability to perform their roles and regularly monitor and check that they are doing what they are tasked with doing.

The culture is set from the top – if your board doesn’t take it seriously then why will others in the organisation. So, make sure this is prioritised so if there ever were to be an investigation it would be obvious that you had set the right tone for those in the company.

Please note that this article is not a substitute for legal advice and you should contact your lawyer about your specific situation. Please feel free to contact us by phone 03 348 8480.

If you are able to demonstrate that a deceased person failed to fulfil a promise to leave you something after they die, how much will the Court give you?

All claims under the Law Reform (Testamentary Promises) Act (“TPA claim”) are fact-specific. If a claimant succeeds in convincing a court that they have a valid claim (see this article for details on what that requires), the Court will make an award out of the assets of the Estate.

When assessing what size of an award is appropriate, the Court takes into account:

The value of the services or work;
The value of what was promised;
The amount of the estate; and
The nature and amounts of the claims of other persons in respect of the estate.

It can be difficult to assess the commercial or market value of the services performed, especially where they are intangible.

The Court will principally focus on the deceased’s perception of their value. However, there cannot be a major disproportion between the award and the value of the services.

The Court will also take into account any reciprocal benefits that the claimant received from the deceased – whether those are tangible things like payment of groceries, or intangible such as a return of companionship and support.

All TPA cases are heavily influenced by their unique context. Please contact us for specific advice. We have experience in both bringing and defending TPA claims.

For more details about what it takes to succeed in a TPA claim, see this article.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

What happens if someone promises to leave you something after they die, but then fails to actually do so? If you performed services for the deceased person in reliance on that promise then you may have a claim under the Law Reform (Testamentary Promises) Act 1949 (“TPA claim”).

To succeed in a TPA claim, you would need to prove that:

You rendered services to, or performed work for, the deceased person during their lifetime;
The deceased person made a promise to you , either express or implied, to reward the claimant for the services provided;
There is a nexus between your services rendered or work performed and the promise; and
The deceased person failed to make the promised testamentary provision or to otherwise remunerate you .

What is a promise?

Promises are defined broadly in the Act. It includes statements or representations of fact or intention. The promise may be made either before or after the services were rendered or the work performed.

It is not necessary that the deceased person ever specified an amount or particular piece of property as the reward. In one case, the Court found that statements such as “I will see you right” and “I will look after you” were sufficient.

In determining whether or not a promise has been made, the Courts may place more emphasis on what you could reasonably have understood by the deceased’s statement than on what the deceased actually intended. However, promises made “in the heat of the moment” and fuelled by emotion may not amount to a promise in terms of the TPA.

Additional evidence of the promise, such as written statements or confirmation by others, will strengthen your claim that the promise was made. However, claims without supporting evidence can still succeed. The Courts also consider the circumstances in which the promise was said to have been made.

Did you perform services for the deceased?

Services can be a variety of things. Cases have recognised things like:

farm work and supervision;
housekeeping and domestic services;
financial advice and assistance with tax returns; or
companionship, affection and emotional support.

If the claimant is a family member, they must show that this kind of support was “something extra” over and above what could normally be expected of a relative.

For example, the Court has found that a stepson’s frequent calls and visits to his stepfather and “odd jobs” around the house were normal in the context of the relationship. By contrast, carrying out significant maintenance and improvements to a house and providing full-time care is usually considered to be beyond what is normally expected.

Were the services related to the promise?

You must show that the promises was made, at least in part, to reward the you for services or work, either performed in the past or expected in the future.

That connection may be expressly stated by the deceased or more commonly inferred from the circumstances. The greater the services or work, the more likely the court is to infer that the promise was made as a reward for the services or work.

All TPA cases are depend by their distinctive facts. We are happy to discuss with you the merits of a potential claim that you have, or that someone else has made against an estate.

For more details on how much you might receive in a successful claim, see this article.

One of an executor’s duties is to obtain probate. But what is probate and how does it work?

Probate is the process by which a Court officially recognises a deceased person’s will and the executors of that will.

Probate is required to ensure that:

The will being relied on is actually the last valid will created by the deceased;
Those applying for probate are the executors named in the will; and
The executors will carry out the deceased’s wishes in line with the law.

Once the High Court grants probate, the executors are legally authorised to deal with the deceased’s property.

Is probate required?

Probate is required for an executor to deal with any asset which exceeds $15,000. If the deceased person did not have any assets in excess of $15,000, the executors do not need to apply for probate. If you are not sure whether an estate is in that category, we are happy to discuss this with you.

If the person died without a will, they are referred to as dying “intestate”. A different process, called seeking letters of administration, is required in that situation.

Have you got the right will?

The first step is to locate the deceased’s last will. A will is often held by the deceased’s lawyer or another entity like the Public Trust.
If you suspect that there is a will but cannot locate it, it is possible to ‘advertise’ for a will. This alerts lawyers and similar entities who will then check their records to see if they hold the will.
There are various legal requirements for making a valid will, including that it be in writing, signed by the will-maker and signed by two or more witnesses.
There is a process by which the Court can validate a document that does not meet the legal requirements but nevertheless sets out the deceased’s testamentary intentions.
A probate application generally requires the original will. However, there are some exceptions to this if the original will has been lost or destroyed.
You must also be confident that the deceased had sufficient mental capacity to make the will.
If you think any of these situations may apply in your situation, please contact us so we can help you work through your options.

Making the application

Once you have the correct will, one or more of the executors named in that will can apply for probate.

You will need to make an affidavit (a statement sworn before a lawyer, registrar or JP) which:

Contains evidence that the will-maker has died (such as a death certificate or an affidavit from someone who went to the funeral);

Contains evidence of where the deceased was living just before they died; and

States that the will is the deceased’s last will.

You may need to file an affidavit that deals with the physical condition of the will, for example if the will has a mark, is crumpled, or has staple holes. The Court will be concerned that the document has been tampered with or previously had something else attached to it. The lawyer who looked after the will can swear an affidavit about the original condition of the will.

Other evidence may be required in some situations, such as where the will-maker had a visual impairment or a shaky signature.

Time frames

Once all the necessary documents have been filed, the High Court will review them. The Court aims to process a standard application within 6-8 weeks, but this may take longer if the Court is busy or the application is complex.

If the Court has any concerns about the application, it may ask for further information or an amended application. This will impact the time it takes to receive probate.

Receiving the grant of probate

Once you have obtained probate, you can proceed to gather in the estate’s assets and act out the will’s directions. For more information about the duties of an executor, see this article.

The grant of probate is important for starting off the timeframe for potential claimants to bring various claims against the estate, such as those under the Family Protection Act or the Property (Relationships) Act, testamentary promises claims and claims by creditors.

We have assisted many people obtain probate and to manage their responsibilities as executors and are happy to talk with you about how we could help you.

Consequential loss is a loss that arises as a result of a breach of contract. In contracts, parties often exclude liability for consequential loss which is provided for in an exclusion clause.

If you are entering into negotiations for a contract, it is important that you understand what consequential loss is, when damages can be claimed for consequential loss, and how to effectively exclude liability.

A question that arises when dealing with consequential loss is how far you can actually go in claiming damages for a consequential loss? Where do you draw the line?

Say, for example, that Mrs Smith has purchased a freezer for her catering business from Mr Jones, which she has filled with ice cream. This ice cream is for a stall that she has been running at the local fair for a few years now, and is a favourite for many fair-goers. Unfortunately, the freezer broke the day before the fair causing all of the ice cream to melt and meaning that Mrs Smith cannot serve ice cream at her ice cream stall and would therefore not make any profit. The lack of ice cream at the stall meant that there were a lot of grumpy children, and grumpy children meant grumpy parents which resulted in a lot of backlash on the fair.

The following year, the fair suffered a 50% reduction in attendance as a direct result of the grumpy children and the lack of ice cream, and the organisers then had to cancel the fair in subsequent years and claimed the amounts they lost from poor Mrs Smith.

Mrs Smith now wants to sue Mr Jones in damages for the loss of profit and the amounts claimed by the fair organisers, which were losses resulting from the breaking of the freezer. But how far can Mrs Jones actually go in claiming these damages? Let’s look at some cases and see what they say.

Hadley v Baxendale

In an 1854 English Court of Exchequer decision Hadley v Baxendale, Alderson B famously established the remoteness test, which is a two-limb approach where the losses must be:

Considered to have arisen naturally (according to the usual course of things); or
Reasonably considered to have been in the contemplation of the parties at the time when they made the contract as a probable result of the breach of it.

Alderson B said that in order for a party to successfully claim damages on the grounds of consequential loss, the loss must fall into either of those two categories.

McElroy Milne v Commercial Electronics

In 1992 in New Zealand, Cooke P said this test no longer applied in modern law, and he established a multi-factorial discretionary approach in which a range of factors are to be taken into consideration, including foreseeability.

Transfield Shipping v Mercator Shipping (The Achilleas)

This is more recent English House of Lords decision concerning the late return of a ship. In this case, the judges established that while Hadley v Baxendale is generally a good approach, there are certain circumstances where it may not necessarily apply.

These judgments create confusion in determining what actually constitutes a consequential loss and where to draw the line. Generally speaking, however, the loss must have been in the contemplation of the parties for it to amount to a consequential loss.

A way forward: What should the clause say?

In our view there are three ways forward:

No exclusion of consequential loss – this means that the parties are leaving it up to the interpretation of the Courts;
Include a general consequential loss clause; or
Incorporate a bespoke clause for the specific contract.

Where possible, we recommend a general exclusion of consequential loss with some examples of specific situations (essentially a bit of both 2 and 3 above).

Other options available:

Remember that a contract is ultimately a give and take from each side and another way that a party can limit liability in a contract is by putting a total cap on their liability.

Another option is that a party could limit liability by stating a time period in which the other party can bring a claim. A small company negotiating with a large multinational will have less scope and a template agreement is much more difficult to get changes made to it.

Ultimately, whichever route is taken depends on the preference of the parties, and their negotiations will also play a role in determining what liability is excluded.

Every situation is unique and how much Mrs Smith could claim for will depend on what the contract said and the circumstances of the situation. Whatever your scenario, we have a dedicated commercial team at Parry Field Lawyers who can give you personalised advice on all aspects of your business ventures. This article is also based on a more detailed analysis of the cases mentioned above – contact us if you would like a free copy of that.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Please contact Kris Morrison or Steven Moe at Parry Field Lawyers (348-8480).

Following the Kaikoura earthquake in 2016, EQC and private insurers advised that private insurers would act on behalf of EQC in receiving, assessing and settling home and contents claims arising from the earthquake, even those claims that were under the EQC cap. Customers were reassured however that this approach would not change their entitlements under their insurance policy or the Earthquake Commission Act (‘the Act’) and that insurers would receive training to ensure compliance with the Act.

Homeowners affected by the Kaikoura earthquake may well be wondering what exactly is the extent of their entitlement under the Act. This article considers that issue. For homeowners dealing with EQC in respect of the Canterbury earthquakes, please see our earlier article “EQC is repairing my home – what am I entitled to?”

What is the extent of EQC’s obligations?

If you have fire insurance, your home is secured against damage caused by natural disaster for its “replacement value” (generally up to a maximum of $100,000 plus GST).

Under the Act, this means that you are entitled to receive the costs “reasonably incurred” to replace or repair the damaged part or parts of your home to a condition which is “substantially the same as but not better or more extensive” than its condition “when new”.

In other words, you are not automatically entitled to repairs (or the cost of repairs) which give you a home which is better than what you would have had when it (or any part of it) was originally built. However, you are entitled (subject to certain conditions) to receive repaired property which is largely the same in appearance, quality and working order as it was “when new”.

Consequently, you are not limited to receiving what is known as an “indemnity” payment, whereby an insurer is only responsible for paying for the cost of repairing your home to the condition it was in before the damage (which in most cases will be less than new).

Does EQC have to cover the cost of ensuring the repairs comply with current building regulations?

Yes, as a general principle.

The EQC Act provides that:

· EQC’s obligation to pay to replace/repair a person’s home to a largely new condition (but not better or more extensive than what the home was like when new) is modified “as necessary to comply with any applicable laws” (which would include current building regulations).

· The cost of such compliance is EQC’s responsibility – EQC is responsible for paying any costs “reasonably incurred” to comply with any applicable laws in relation to the replacement or reinstatement of your home.

In other words, while in general EQC is not obliged to pay to repair your home to a condition which is better or more extensive than what it was like originally when new, this limitation is modified where it is necessary for the repairs to comply with any applicable laws.

Consequently, this means that you may end up with something which is better than what you had before. This is because, although your home (or part of it) may have complied with building regulations at the time it was built, this may not be the case now. Therefore EQC may have to pay for additional work to be done to ensure that any repair to the relevant part of your home complies with current regulations.

This may include paying the cost of upgrading non-earthquake damaged aspects if those aspects need to be upgraded as part of completing the repair of your earthquake damage. In other words, if your earthquake damage cannot legally be repaired without also upgrading non-earthquake damaged parts, EQC may be responsible to meet those costs too.

However, that doesn’t mean that your entire home has to be fully upgraded to comply with the performance requirements of the Building Code. In general, only the relevant repairs have to comply with the scope of the Building Code that applies to that particular type of repair. With the exception of such things as ﬁre safety, the balance of your home only needs to comply with the Building Code to the same extent as it did before the earthquake.

Be aware however that, if your home (or part of it) did not comply with building regulations at the time it was built or no building consent was obtained when required, you may have to contribute to the cost of any additional work required to ensure that your repairs comply with current building regulations. This is particularly if the failure to obtain a building consent/comply with the relevant regulations caused or increased the earthquake damage to your property.

Is EQC responsible for paying any other costs?

Yes. Under the Act, EQC is also responsible for paying any costs “reasonably incurred”:

· To demolish your home (or any part of it) and remove debris but only to the extent that such was required to enable your property to be repaired/replaced;and

· To pay architects’ fees, surveyors’ fees and council fees.

Are there repairs/damage EQC may not have to cover the cost of?

Possibly. EQC is only responsible under the Act for covering damage to your home which occurred “as a direct result of a natural disaster”. Consequently, if you have damage to your home which was not caused by the Kaikoura earthquake (e.g. pre-existing damage) but which is also being repaired as part of your earthquake repairs, you may have to meet the cost of that.

However, this is not always the case. If your earthquake damage cannot be repaired without the non-earthquake damage aspects also being addressed, EQC may still be responsible to pay (see point 2 above for example). Likewise, if pre-existing damage has been made worse by the earthquakes.

Correspondingly, if your home (or part of it) did not comply with building regulations at the time it was built or no building consent was obtained, you may have to contribute to the cost of any additional work required to ensure that your repairs comply with current building regulations (again see point 2 above).

Every situation is unique so please discuss your situation with a professional advisor who can provide tailored solutions to you.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Contact Paul Cowey at Parry Field Lawyers, paulcowey@parryfield.com (03 348 8480)

The Christchurch earthquakes changed the landscape in many areas of life. One such area is insurance. Prior to September 2010 the words “EQC claim” were never muttered by a Christchurch property lawyer. Nowadays, if a Christchurch property lawyer goes a day without mentioning those words, they have done extremely well.

Recently and with the recent events in Kaikoura in the forefront of our minds, we brought you an article that looked at some lessons learnt from the Christchurch earthquakes from a home owners perspective which you can find here. We thought that it would be also useful to also look at this issue from the purchaser’s perspective.

The area of EQC and private insurance claims has evolved significantly since September 2010 and in many situations the 2016 position is more complicated than the position immediately after the earthquakes. This is mainly because many home owners have had pay outs for various aspects of damage to their properties, some of which has been completed and some of which has not. Almost all contracts for the sale and purchase of property contain provisions in relation to the claims that have been made on the property and the assignment or otherwise of those claims to the purchaser. Purchasers need to be on guard. The effect of getting these clauses wrong should not be understated. We offer the following tips to ensure that your interests are protected and no surprises occur on settlement.

Know your terminology

Be aware that there is a difference between an EQC claim and a private insurance claim. Unless there has been more than $115,000.00 damage to the property, an EQC claim will relate to damage to the dwelling and a private insurance claim will relate to aspects outside of the dwelling like the paths and the driveways.

Obtain information early on

In your discussions with the real estate agent, discuss with them the EQC and private insurance position of the property. In particular, what damage has occurred and obtaining scopes of work, did the vendor receive a cash settlement or did they have the repairs carried out by way of a managed repair process. This helps to inform you as to how much work has been completed on the property and the mode of repair.

Beware the cash settlement

If a cash settlement has occurred and the work has not been carried out, is the vendor agreeing to pay over the cash amount on settlement and if so, will the cash settlement be sufficient to complete the required work? If the cash settlement has been used to complete the work, can the vendor provide evidence (photographs, receipts and invoices) of the work having been completed? Often times, vendors who are cash settled for cosmetic work complete the work themselves. Therefore be wary of work that while technically “completed” has not been completed to a tradesman like standard. Your building report or other professional reports can be of use to determine the quality of work completed.

Obtain sign offs

If the work to the property has been carried out by way of a managed repair, ensure that you obtain all sign offs as well as any Council building consents and code compliance certificates in relation to the work. As you have probably seen in the media in recent times, even signed off work has had quality issues and therefore even with work that has been signed off, we would still encourage you to obtain independent professional reports to ensure the work has been completed to a good standard.

Feed back to your lawyer

The above information can then be fed back to your lawyer who can draft an appropriate clause in relation to the assignment of the EQC and private insurance claims. Your lawyer may want to confirm the information obtained with the vendor’s solicitor as well.

Make it a condition

You should consider making your approval of the EQC and private insurance information in relation to the property and the assignment of these claims a condition of the contract. This means that should any aspect of the EQC or private insurance position of the property that becomes clear through your due diligence process not be favourable to you, you have the ability to cancel the contract.

Beware of precedent clauses

We would caution you about relying on a standard EQC and private insurance provision that has not be tailored to the particular circumstances of the property. At Parry Field, we have more than 20 different clauses we use in relation to the assignment of EQC and private insurance claims so you can see that the variance is large.

Reliance on professional reports not commissioned by you

Be aware that professional reports (for example building and engineer’s reports) that are not commissioned by you (i.e. that you don’t pay for) can not be replied upon by you legally. Such reports must be commissioned and paid for by you if you wish to able to legally rely on them. Therefore, in a situation where a property has had significant damage, we would strongly encourage you to obtain your own structural engineer’s report in relation to the property.

Honesty is the best policy

if there is work still to be completed on the property, you should disclose this to your insurer and bank as early as possible. In relation to your insurance, this will likely result in your insurer excluding the damaged areas of the property from your policy coverage until the work has been completed. However, this is certainly the lesser of two evils given that if your insurers find out that you did not disclose damage when you are making an insurance claim for further damage to your property (a fire for example), this could void your policy and you be left with some hefty clean up costs.

Don’t rush

This is likely to be the biggest investment of you life so take your time, speak to your lawyer early to ensure the contract is right for you. This could save you thousands of dollars down the track.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance with this, or with any other Property matters, please contact Paul Owens at Parry Field Lawyers (348-8480) paulowens@parryfield.com

Painting is easy when you don’t know how, but very difficult when you do. Edgar Degas

Our experiences over five years ago in Christchurch have unfortunately been brought to life again by the recent earthquake and the damage suffered in North Canterbury, particularly in Kaikoura. We know the power of an earthquake and have for several years now been helping our clients achieve good outcomes on their EQC and private insurance claims.

Reflecting on what we have learned over these years has resulted in the thoughts set out here. As the quote above indicates, sometimes with a little knowledge something can appear easy when in fact, digging a little deeper, it is much more complicated and difficult than you realised. Doing the hard work though, whether it involves painting or something else (like insurance claims), will result in a better outcome.

Our intention in sharing these thoughts is to proactively assist those who may now be at the start of a journey they weren’t anticipating and who could benefit from what we have learned about EQC and insurance claims. We are talking here about homeowners; for those with commercial premises and businesses there will be other points to consider (we have done a separate article for those who may have had businesses interrupted which you can access here.

The following are the most important principles to be aware of, and steps you should take, to help achieve a positive outcome with your EQC or insurance settlement:

Make an EQC claim and an insurance claim straight away if there is evidence of damage to your property.

Notify your insurer even if you think the damage is only cosmetic. By submitting the claim you enter the system. While you do have 3 months to submit claims, we recommend doing it sooner rather than later so that the wheels can start turning.

Take good photos of damage and also source or retain any photos (or reports) you have of your home before the quakes. Don’t rely on EQC or your insurer to record the damage.

This lessens the risk of a dispute over what is and isn’t earthquake damage and, should there be any further earthquakes, what damage was caused by each event. That can become relevant where claims have to be shared over more than one earthquake, which has been an issue in Christchurch.

Not all insurance policies are equal – get advice on your policy/EQC entitlements before doing anything further.

This not only ensures you know what you are entitled to from EQC/your insurer but also ensures that any professionals you use to help quantify your claim do also. In a number of cases we’ve dealt with, engineers/quantity surveyors haven’t been properly briefed in line with policy/EQC entitlements so cases have either been overstated or understated. This can stymie negotiations and cause delay and further expense.

In this regard it is worth mentioning that sometimes legal fees are covered by home insurance policies which may mean that your insurer will cover any fees you incur clarifying your entitlements.

It can pay to be proactive and obtain your own professional advice (i.e. engineering) up front.

The EQC process can be a long and slow one. You may be better served getting your own advice early on in the piece, rather than waiting for an assessment.

If you do obtain professional advice, make sure the evidence you obtain is going to be robust and stand up to scrutiny.

While companies purporting to specialise in earthquake assessments and repairs may save you some initial costs, in our experience those assessments may not stand up to scrutiny when push comes to shove. Use reputable structural or geotechnical engineers, land surveyors and quantity surveyors – it will ultimately save you time and cost in the long term.

Appreciate upfront that that the onus is on homeowners to establish their loss rather than on EQC/insurers.

Therefore, while insurers/EQC usually carry out assessments, if you disagree, it’s not actually up to EQC/the insurer to prove their assessment. Rather, you need to obtain your own evidence, be it engineering, quantity surveying advice etc. In some cases EQC and insurers will cover these costs.

Watch out for cowboy contractors.

There are a lot of people making a lot of money from an unfortunate situation and we have seen situations where vulnerable people have been taken for a ride. To avoid this, ask for testimonials and evidence of their work.

Also, watch out in particular for contingency arrangements where you pay a cut of your insurance or EQC settlement to the company assisting you. It may seem they are taking the risk or the hassle away from you but, in our experience, often insufficient work is done to ensure you get the best result you can.

Be satisfied with any scope of works before any repair work begins or before you receive a cash settlement.

If repairs are being carried out for you, you want to ensure that all damage is reflected in the scope and the repair methodology is correct. Once repair work begins, you don’t want additional issues to arise, particularly if you have moved out for the repairs. That can mean the work has to stop while the issues are resolved, which can cause significant delays as well as issues with ongoing temporary accommodation. As always, get advice on the scope from appropriate professionals.

Similarly with a cash settlement, you want to ensure that it covers all damage and provides the correct repair. Once you’ve settled with EQC or your insurer, you don’t want to find that the cash settlement is insufficient to cover the actual cost of repairs or a rebuild. We have found, for example, that a quantity surveyor’s costings may differ markedly from those of EQC or insurers.

If EQC or the insurer is doing the repairs, also be aware that any building contract presented at the back end of the process is not a mere formality.

It is a document that requires careful consideration/advice. Inadequate attention to it can result in other issues once the repair/rebuilding work begins and may be counterproductive to the whole process. Again, many insurers pay for legal advice on these contracts.

Finally, as the cliché goes “patience is a virtue”.

Unfortunately, throughout the process, patience may be something you need in large supply. Dealing with EQC and insurers can take time and a lot of effort so it is good to try to reduce stress levels where you can but anticipate that it may take longer than you think to get through.

As we noted early on, when you look into something it may seem harder and more complicated than you first thought. However, if you embrace the challenge, you can achieve a successful outcome. With EQC and insurance claims, the hard work of preparation is key. We hope that the information provided here has been helpful to better prepare those now needing to make an insurance and EQC claim.

Every situation is unique so please discuss your situation with a professional advisor who can provide tailored solutions to you. Please contact Paul Cowey at Parry Field Lawyers (03 348 8480) paulcowey@parryfield.com

Business owners in Christchurch largely failed to take advantage of their business interruption cover. Here are some tips from our experience with those who did well.

Things to do:

Take photos of everything, before the clean-up if possible.
Get a copy of your business interruption policy schedule and the full wording document (if you don’t have them your insurance broker may do. If in doubt call the insurance company who will provide the full policy wording.)
Understand the cover that your particular BI policy provides. Your broker or your lawyer will help if they have had previous BI insurance experience (if not then get an advisor with experience). Most BI policies will pay for all claims preparation costs including legal and accounting advice. Good advice will make a very sizeable difference to your claim.
Business interruption cover usually only lasts 6-12 months starting from the date of the damage. Plan to make ALL the business adjustments you can within that period. That way the insurer will pay.
Possible policy responses may include re-establishing the business elsewhere, or changing the focus of the business.
Many BI policies cover staff wages and increased costs of business.
You can often obtain an interim payment from the insurer if you can clearly show a loss covered by the policy. A decent payment at this time allows more options and better decision making.

Don’t:

Decide to muddle through and think about it later. If you do that, your cover will expire and you may get nothing.
Make large changes to your business at your own cost without understanding what your BI cover provides for. BI cover is frequently more than expected.
Make decisions based on advice from someone who has not read your full policy wording.

For those waiting to settle earthquake claims, the six year limit to get judgment against your insurer is looming. This article considers the time limit, answers some key questions and proposes some options.

What is the time limit?

An insurer can defend a claim if it is filed in Court more than 6 years after the date of “the act or omission on which the claim is based” (Limitation Act 2010). For pre 1 January 2011 claims, time runs from “accrual of the cause of action” (Limitation Act 1952). This is unlikely to make much difference. So the time limit for claims is likely start expiring on 4 September 2016.

If no Court proceedings are filed and a time limit defence is successfully raised by an insurer, the claim will be struck out by the Court. The insurer can then refuse to pay anything.

Why have a time limit?

The law has long required those seeking justice not to sleep on their rights. Delays in bringing an action can mean loss of witnesses, dimming of memories, and losses that could be avoided by bringing a dispute to Court promptly. Defendants should not have claims hanging over them indefinitely, which they may need to hold insurance cover for. For insurance claims, the time limit for taking action has long been 6 years.

When does the 6 years start running from?

Probably the date of the earthquakes. The New Zealand Courts are yet to consider this issue for earthquakes. English cases suggest that under insurance policies, contractual rights exist from the moment an insured event happens. Therefore the time limit would run from the date of the relevant earthquake.

Some commentators believe time should run from the date an insurer declines a claim, or ignores it. A New Zealand decision about an illness policy did hold that the time limit started when the insurer made a decision to decline a claim. But the English decisions seem to fit better with earthquake claims. It would be difficult to be precise about when an insurer has “declined” a claim. What about reasonable delay? What about just being unreasonable? No claimant will want to spend days in Court arguing about whether their claim is allowed to be in Court at all.

What is the relevant earthquake?

This will depend on which quake caused the damage. EQC has allocated damage based on broad percentages. Where it really matters however, it will be necessary to prove more precisely exactly what damage was caused when. It may be difficult to determine this. The Court may need to decide based on expert evidence, photos, computer modelling etc.

My insurer has delayed my claim. Will this affect the time limit?

Unlikely. As the time limit for property insurance claims is likely to run from the date of the relevant earthquake, conduct of the insurer is usually irrelevant. If earthquake damage was hidden, and came to light later, that may qualify as late knowledge and postpone the start of the 6 year limit. It is unclear whether EQC waiting for 6 years to decide that a claim is over cap would prevent an insurer relying on the 6 year limit.

Can the government use Limitation Defences for EQC or Southern Response?

The government is able to use Limitation defences, but it is uncertain if that applies to EQC. EQC is not an insurer, instead it offers a statutory scheme of insurance. But the Courts have applied Limitation defences to similar claims “by analogy” in the past, so it is likely they could be used for EQC.

Limitation defences will apply in the usual way to the AMI policies that Southern Response took over.

What happens if the six years runs out?

If proceedings are not issued before 4 September 2016, no damage from the 4 September 2010 earthquake would be payable. A claim for February 2011 damage could still be made. But a lot of effort would be needed to prove the exact cost of the damage caused in September, which would then be deducted from any pay out.

Claimants can still attempt to negotiate with their insurer after the time limit expires. But if they will not pay, Court action cannot be taken. This will leave claimants with no negotiating power and no options.

Can a Court extend the 6 year limit?

No. The limit is set by Statute. The Court can use a late knowledge period to postpone the starting of the 6 year limit in certain circumstances. The period then usually runs from the date when the claim was known, or could have been discovered, e.g. in sexual abuse claims and some latent defects in buildings. Generally, neither silence by the insurer or entering into negotiations will be enough.

Does the time limit automatically apply?

No, the time limit only applies if an insurer raises it as a defence. Insurers can agree to a “standstill”, or they can agree not to use a Limitation defence for a period of time. Such a “Waiver” must be clear and unequivocal, making it unfair for an insurer to later try to rely on a limitation defence.

We have written to the Minister responsible for EQC and to the Insurance Council of New Zealand. We asked them to give a public waiver, and asked for written confirmation that neither will raise the 6 year limit to try and avoid paying valid claims. We are awaiting their response. There are several possible outcomes:

(a) No response.

This would signal insurers (and their reinsurers) want to rely on limitation defences. The only safe way to protect claims will be to file Court proceedings. Legal costs may be partly recoverable from the insurer.

(b) Insurers refuse to offer a waiver to all claimants, telling them to seek a waiver one by one.

But if waivers are to be freely offered, why require people to write in one by one? This will involve many insurer’s hours which could otherwise have been spent solving outstanding claims. Some claimants will do nothing and fall through the cracks. The individual waivers granted by insurers may be adequate, or they may not. Claimants without legal advisors are unlikely to know until it is too late. Claimants with legal advisors will have to foot the bill for seeking and receiving an appropriate waiver. These legal costs may be partly recoverable from insurers.

This would need to be clearly and publicly stated. It could postpone the date for filing Court proceedings until 4 September 2018.

(d) The government could bring some clarity.

It is not likely that Parliament could act, or a Court decision could move through the appeals process in time, given the September 2016 deadline.

I have signed an agreement but have not been paid.

If the insurer has agreed to the claim and signed an agreement the positon may be different. A contract to pay the cost of rebuilding a house will usually become its own cause of action. If an insurer fails to perform under that contract, the limitation period would usually run from the date of that breach. Note however that while this will often be the case, it will depend entirely on the wording of the agreement and the promises the insurer has made.

How do I avoid missing out if insurers will not give up the limitation defence?

The Limitation Acts provide that time stops running when the claim is filed in Court. Any claim will need to be filed in Court within 6 years from the date of the relevant earthquake, so by 3 September 2016 or 21 February 2017.

Where there is uncertainty as to which earthquake caused the relevant damage, it would be safest for claimants to file their claim before 4 September 2016.

If you have not yet settled your earthquake claim, do not leave it too late to seek competent, professional advice. Claimants may be able to recover a part of their legal costs from insurers. Good advice may also help you settle your claim well before the relevant time limits. But either way, the September 2016 time limit will soon be upon us.

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If we can assist in any way with your insurance claim, please do not hesitate to contact us at insurance@parryfield.com.