Details sought from plaintiffs in Ōhau fire case
The 101 plaintiffs at the centre of a multimillion-dollar damages claim from the “catastrophic“2020 Lake Ōhau fire have been ordered by the High Court to supply the defendant company with more detailed particulars of losses by early May.
Associate Judge Owen Paulsen’s order, delivered on March 21 after a High Court hearing in Timaru on February 27, is the latest step in litigation in which the plaintiffs “allege the defendant (Network Waitaki) is responsible for the fire and the resulting loss of their property”.
Proceedings began in June 2023, with the defendant requesting further particulars on July 3, 2023. The plaintiffs responded on July 21, 2023, but the defendant was unsatisfied with the response, and filed the February application seeking both further particulars and initial disclosure.
“The defendant’s primary concern is that it is prejudiced because the plaintiffs’ pleading does not fairly inform it of the case it has to meet, limit the scope of the matters that may be put in evidence at trial, and enable it to know what witnesses to brief and call,” Associate Judge Paulsen said. “The plaintiffs oppose the defendant’s application.”
The plaintiffs’ case is that faults in the Network Waitaki system that occurred early on October 4 were the result of a “catastrophic failure at a power pole (35693) on the defendant’s network”, and that a fire originated in the immediate vicinity of that power pole shortly after.
The plaintiffs also consider that the failure at 35693 caused a second fire about 80m north of the pole, and “plead the fires merged and destroyed or damaged the plaintiffs’ property”.
The plaintiffs’ lawyer, Craig Stevens, said the event was “the largest urban fire in New Zealand's history, with 48 homes destroyed and six more seriously damaged”.
Fire and Emergency New Zealand investigated several possible causes of the fire, and concluded that “the most probable cause” was the failure of the cross-arm at the pole, “but the report was inconclusive as to whether there had been a second fire”.
“While it appears that in earlier correspondence the lawyers representing an insurer, and now the plaintiffs, had advanced a different theory as to the cause of the fire, the plaintiffs have adopted the conclusions of the Fenz report,” Associate Judge Paulsen said.
“The defendant does not accept the conclusions in the Fenz report and says the plaintiffs’ case is no more than a hypothesis, and one that is pleaded at an unacceptable level of generality.”
The defendant said it “must have a clear understanding of the plaintiffs’ case so that experts are properly briefed and are able to carry out their own investigations which will need to begin well before the briefing of witnesses”, adding that the amended statement of claim does not identify the property said to be destroyed or damaged in the fire, nor the amounts being claimed except in broad terms. An open-ended statement that the losses would exceed $40 million did not meet that obligation.
Associate Judge Paulsen said the defendant could not be expected to wait until discovery had been completed, or until expert evidence was exchanged, to be provided with particulars of the losses being claimed by each plaintiff.
“While I have no doubt the task of quantifying each plaintiff’s losses is a large one, there is no evidence before me of any particular difficulties which prevented the task from being completed before now.”
Associate Judge Paulsen backed the plaintiffs’ stance on evidence relating to the detachment of the cross-arm on the pole. However, he said the defendant was entitled to further particulars on what the molten metal was that the plaintiffs’ claimed had fallen to the ground, starting the fire, and also entitled to know where and when the plaintiffs said the two fires merged.
Associate Judge Paulsen ordered the plaintiffs to, within 40 working days, file and serve a second amended statement of claim that included further particulars of the losses sustained by each plaintiff that they sought to recover from the defendant.
He also ordered an amended statement of claim that stated the composition or nature of the molten material that fell to the ground, starting the fire; and the location and time the plaintiffs believed the two fires merged, or if the plaintiffs did not know, to state this in the re-pleading.