he Court of Appeal has confirmed that manufacturers of products which form key components in the construction of weathertight buildings owe a duty of care to the owner.

There have been a number of appeals issued recently in relation to cases we have reported on previously. Jo Stafford has prepared a short summary on the decisions of note.

The Court of Appeal recently upheld an Employment Court finding that four Uber drivers were employees rather than independent contractors.

This article reviews two recent United Kingdom cases of interest to those who defend and insure professional negligence and liability claims.

This case provides a useful analysis of a designer’s liability for negligent design, concisely summarising relevant principles governing contractual interpretation and the assessment of damages.

In two recent decisions, the High Court provided further guidance on the application of s 393 Building Act 2004 to amended pleadings

The much anticipated judgment of the District Court in Maritime New Zealand v Goodhew was delivered on 22 July 2024.

WorkSafe charged 13 defendants in 2020. Of those, six pled guilty and one was found guilty at trial. Of the seven guilty parties, one had been sentenced.

The High Court has recently grappled with the issue of whether a trust can be the subject of a WorkSafe prosecution under the Health and Safety at Work Act 2015.

The UK Supreme Court has confined personal injury claims by secondary victims to cases involving accidents, confirming the Alcock requirements and striking out claims by secondary victims who suffered personal injury as a result of witnessing a close relative’s death or injury due to medical negligence.

After six out of the 13 defendants prosecuted by WorkSafe successfully applied to have charges against them dismissed and another six pled guilty, WorkSafe has successfully prosecuted Whakaari Management Limited: the last remaining party.

When commercial parties to litigation agree to settle their dispute on terms prior to trial, ordinarily the only thing left to do is to notify the court and file a notice of discontinuance.

Nuisance is more regularly featuring as a cause of action available where there is damage to land and structures.

The High Court decision in Davern confirms the obligation of a contractor, engaged by an insurer, to a homeowner to administer and coordinate a managed repair.

We are seeing more insurers using cyber exclusions and endorsements in their Personal Indemnity policies to restrict cover for cyber events. This trend is likely to continue. However, express exclusions for cyber events are not (yet) standard in the PI market in New Zealand. Darren Turnbull investigates what recent activity in the UK insurance market might eventually impact the market here.

Unfortunately, there are no shortcuts to achieving effective cyber security. Achieving a sufficient level of security requires genuine engagement with the issue. Reliance on dated systems, and a ‘she’ll be right’ attitude will only result in disaster. Tony Clark takes a closer look at what genuine engagement looks like.

We are routinely told that artificial intelligence is poised to revolutionise the practice of law. For generative AI tools like ChatGPT, it might even be true. That makes it all the more important to understand its strengths and limitations. Linda Hui provides an overview of how ChatGPT works, what it can and can’t do, and some of the issues faced by early adopters.

To put AI-generated through a full test we asked Stacey Wright, McElroys’ e-discovery guru, to generate an article for this issue of Navigate using ChatGPT as a showcase of its capabilities and limitations. Using topic prompts, she was sent back a lengthy piece which we have not edited. Read all about the impact of AI technology on Discovery in New Zealand.

To round up our article summary, we return to reality! Peter Hunt looks at whether a Rugby World Cup coach could be subject to an injunction if he coaches a new team against a former team.

A full bench of the Supreme Court has had the final say in relation to an issue arising out of a complaint to the office of the Health and Disability Commissioner

A real estate agent who provides inaccurate information to a purchaser is only liable for the consequences of negligently supplying that information.

In February 2017 a devastating wildfire in the Port Hills of Christchurch burned through more than 1,600 hectares of land and destroyed nine homes, some of them newly rebuilt properties which had been destroyed in the 2010-2011 earthquake sequence.

Disputes about the meaning of life policies do not often come before the Courts in New Zealand. Insurers might regard the scope of life insurance as settled and uncontroversial – payment is dependent upon the duration of human life.

In this recent decision the English High Court considered the ability of a shipowner to limit its liability where there has been both physical damage and economic loss to cargo.

The Court of Appeal has upheld the High Court’s decision dismissing Beca’s application for strike out or summary judgment.

Cybercrime has increased massively in recent years. The latest Cyber Security Insights Report produced by the New Zealand watchdog, Computer Emergency Response Team, states that New Zealanders have suffered the highest financial loss ever reported in a three-month period to the end of September 2022 of $8.9 million.

The recent Court of Appeal judgment involving Napier City Council and Riskpool resolves the issue of whether a claim involving both weathertightness and other defects may be wholly excluded based on a weathertightness exclusion.

The substantive hearing of the Health and Safety at Work Act 2015 (HSWA) charges against 10 organisations and three individuals in relation to the Whakaari White Island eruption is due to be heard in nine months.

In this proceeding, where McElroys acted for the defendant insurer, The High Court provided guidance on the repair of earthquake damaged concrete elements to the “when new” policy standard and on what the insured is required to do to prove damage.

The High Court recently considered whether, in providing documentation to the potential purchasers of a property, a real estate agent had misled them as to weathertightness issues. The Court was required to decide whether the agent/agency was a mere conduit of the information provided to the purchasers or something more.

Increasingly the Courts are being called on to adjudicate disputes between parties with diverse backgrounds. Recently the Supreme Court provided guidance on navigating such disputes in Donglin Deng v Lu Zheng [2022] NZSC 76.

We are maintaining a watch on Ministry of Transport proposals to increase the maximum penalties for offences under the Maritime Transport Act 1994 (MTA).

The UK Supreme Court recently handed down judgment in the important auditor’s negligence case of Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20. It addressed the scope of a professional’s duty of care including the proper application of the principles in SAAMCO (South Australian Asset Management Corp v York Montague Ltd [1997] AC 191).

This article provides an overview of vaccine mandates and considers issues for employers going forward.

The High Court’s April decision in Body Corporate 355492 v Queenstown Lakes District Council principally considered the application of the longstop to amended pleadings.

The District Court has dismissed charges against the National Emergency Management Agency (NEMA) on the grounds that NEMA did not owe a duty under s36(2) of the Health and Safety at Work Act 2015 (HSWA) to identify and analyse the risks to the life of visitors and tour operators on Whakaari White Island from volcanic hazards.

In Sneesby v Southern Response, the High Court held that a settlement agreement was a bar to a new claim by the policyholder against Southern Response. This was in respect of alleged misrepresentations when settling the earthquake claim. Kiri Harkess looks at why Associate Judge Lester arrived at a different conclusion on this issue to that of Justice Gendall in Dodds v Southern Response.

In Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, three Police and Defence Force workers sought to judicially review the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (Order) effective on 16 December 2021 under s 11AA of the COVID-19 Public Health Response Act 2020 (Act). The Order required certain Police and Defence Force personnel to be vaccinated by 1 March 2022. The judicial review was heard by Cooke J.

In MNZ v Tauranga Fishing Charters Ltd, the District Court ordered the defendant company be convicted and discharged without the imposition of any fine. The decision not to impose a fine is a rare outcome in any regulatory prosecution, particularly one involving a charge under the Health and Safety at Work Act 2015 (HSWA).

When an insured notifies a claim, the insurer appoints a loss adjuster or assessor to investigate. This may seem straightforward, but questions can arise… At which point does the loss adjuster’s file attract the protection of privilege?

This case concerned the scope of a ship owner’s obligation to exercise due diligence to make a vessel seaworthy. This concept features significantly in Article III and Article IV of the Hague-Visby Rules, which were incorporated into the bills of lading issued by the carrier.

Employers in many sectors are now faced with the need to implement COVID-19 vaccination mandates, either as a result of a statutory order, or following a risk assessment. The Employment Court decision 23 November 2021, WXN v Auckland International Airport Ltd, demonstrates the importance of properly determining whether an employee is “an affected person” and acting in good faith towards vaccine-hesitant or opposed employees, including following a fair process.

“Get in line or get out of our way.” That was the message laid down by New Zealand’s own climate activist India Logan-Riley at COP 26, the United Nations climate summit held in Glasgow in November 2021. IMO has long been under pressure to get shipping in line with the goals of the Paris Agreement to keep the increase in global average temperature well below 2°C above pre-industrial levels, while pursuing efforts to limit the increase to 1.5°C.

FibreTech owned an industrial building in Christchurch which was damaged in the 2010/2011 Canterbury earthquake sequence. FibreTech made a claim under their material damage policy after the 4 September 2010 earthquake. In November, the High Court’s decision in FibreTech Holdings Ltd v Vero affirmed the importance of release clauses in settlement agreements.

The UK Supreme Court has issued a judgments on the scope of professional duties that will alter the way in which liability for negligence is analysed in common law countries. The Court has released the decision Khan v Meadows [2021] UKSC 21 in which it applied a new 6-step test to a medical negligence case. We review the judgment with focus on the steps and how the Court applied the test to the question of whether Dr Khan was liable for the birth of a haemophiliac, autistic child.

The UK Supreme Court recently handed down judgment in the important auditor’s negligence case of Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20. It addressed the scope of a professional’s duty of care including the proper application of the principles in SAAMCO (South Australian Asset Management Corp v York Montague Ltd [1997] AC 191).

McElroys recently attended a LegalWise seminar on settlement agreements. We have prepared a quick refresher on important aspects to be aware of when entering into a settlement agreement.

It is not very often that an employment case reaches the Supreme Court. However, in August this year that Court settled the jurisdiction of the Employment Relations Authority (Authority) versus the High Court, where an employee alleges they have suffered harm as a result of the employer’s negligence.

The High Court says “no” in the latest in a series of decisions addressing limitation for contribution claims under s17 Law Reform Act 1936.

Anyone involved with claims involving trustees or executors of estates would be well-advised to be aware of the protections provided by Beddoe orders.

Insurers should be mindful of the Consumer Guarantees Act 1993 (CGA) when providing services to insureds under or outside of policies, making representations about services, and as regards the performance of those services (including by their contractors).

In the devastating Port Hills fires of 2017, $11m of claims were made against the adventure park whose negligent actions had contributed to the loss of a number of houses. But does new for old justify a deduction for betterment?

A decision of the UK Supreme Court in April 2021 addressed the issue of intention in the application of “deliberate acts” exclusion clauses in liability insurance policies.

The Court of Appeal addresses the standard of proof imposed on an employer when carrying out workplace investigations. The relevant standard is reasonableness only.

The Court of Appeal reemphasises the need for negotiating parties to be precise and to take care in their communications with each other. In the right context, a factual statement as to present conduct may amount to an implied promise as to future conduct, sufficient to found an estoppel.

The next step in the Mainzeal saga has occurred with the issue of the Court of Appeal’s judgment on 31 March 2021. The directors remain liable, albeit on the basis of a breach of a different statutory duty than that found in the High Court. However, a new approach to compensation for a breach of s136 (duties as to obligations) appears to move away from an assessment of loss suffered by the company, to that suffered by company creditors.

The High Court has issued judgment against unprincipled trustees who sold a forest on trust land without the co-owner’s knowledge or consent. The co-owner sought to recover its losses from the trust. Due to the trust’s breach, there was little evidence of the value of the lost forest. The key issues of interest to liability insurers are the date for assessment of loss and the consequence of spoliation of evidence.

The Health and Safety at Work Act 2015 substantially updated New Zealand’s health and safety regime. The new legislation maintained the core concept of keeping people free from harm, but shifted the focus from the workplace to a broader concept of how work is conducted.

Justice Osborne in the High Court at Christchurch has recently issued two judgments demonstrating the Court’s willingness to exercise its supervisory jurisdiction over class actions when called on to do so. The decisions arise out of the Ross v Southern Response litigation that we have reported on previously.

Queensland Supreme Court considers whether an excess policy is a marine policy subject to specific marine insurance legislation or a general insurance statute.

On 15 January 2021, the United Kingdom Supreme Court handed down its highly anticipated judgment in the COVID-19 Business Interruption (BI) Insurance Test Case.

The Supreme Court has confirmed in Ross that plaintiffs may bring “opt-out” representative actions. Prior to this, only “opt-in” representative actions had been allowed by the courts. An “opt-out” action may be brought on behalf of a defined “class” so that all persons falling within the definition of that class will be treated as plaintiffs unless they actively opt out of the proceedings.

The Sleight’s Christchurch property was significantly damaged during the Canterbury Earthquake Sequence (CES). IAG insured the property. The reinstatement standard in the policy was “to a condition as similar as possible to when it was new”.

In October 2019, Bell AJ declined to strike out the Retro Apartments Owners’ claims for non-weathertightness defects as it was time-barred under the Building Act longstop. Bell AJ’s judgment was an unabashed policy decision. Bell AJ and the Court of Appeal subsequently declined leave to appeal the strike out judgment due to the proximity of trial.

Mr Cooper was the sole director of Debut Homes Ltd (Debut), a residential property developer. By the end of October 2012 Debut was in real financial difficulty. The IRD put the company into liquidation in March 2014. Debut’s liquidators issued proceedings against Mr Cooper for breaches of ss 131, 135 & 136 Companies Act 1993 (CA).

Mr Taylor, a self-employed insurance broker, held an income protection insurance policy with Asteron. In 2010, Mr Taylor became sick and was unable to work. He made a claim, which Asteron accepted. Asteron paid Mr Taylor total disability benefits (TDB) until September 2014. It then suspended payments because Mr Taylor would not provide financial information Asteron required to assess his loss of earnings.

On 15 September 2020, the English High Court delivered its highly anticipated judgment in the Financial Conducts Authority (FCA) test case concerning COVID-19 business interruption claims.

Context is Everything: An insurer’s unqualified and wrong statements about policy entitlements lead to liability for misrepresentations and misleading and deceptive conduct

The Privacy Act 2020 will come into force on 1 December 2020. The reforms in this legislation aim to strengthen privacy protections and encourage businesses and organisations to identify risks and prevent incidents relating to personal data that may cause harm.

The Covid-19 pandemic has had a significant impact on many businesses across the country. It has brought into sharp focus the question of available insurance cover for losses under Business Interruption (BI) insurance policies and the extent of that cover.

The Supreme Court has delivered an important decision on the law of penalties in 127 Hobson Street Limited v Honey Bees Preschool Limited [2020] NZSC 53. Honey Bees Preschool Limited (Honey Bees) was a preschool that leased premises from 127 Hobson Street (Landlord). One of the obligations under the lease was for the Landlord to provide a second elevator in the building to facilitate access to Honey Bees’ business on the fifth floor.

The purpose of the Earthquake Tribunal is to provide an alternative path to resolve insurance disputes between policyholders, insurers and EQC that is “speedy, flexible and cost effective”. When a question of law arises, the Tribunal may refer that question to the High Court for its opinion, following which, the Tribunal must continue the hearing in accordance with that opinion.

During lockdown the Court of Appeal released its decision in Attorney-General v Strathboss Kiwifruit Ltd. The Court of Appeal overturned the High Court’s decision regarding the liability of MAF to the growers. Andrea Challis explains the decision and the challenges in bringing novel negligence claims against public authorities

The Supreme Court has written the final chapter in the Lodge/TradeMe anti-competition case. It found there was an understanding between realtors to pass on the TradeMe fee to vendors rather than absorb that cost internally.

What are parties’ rights and obligations where the lockdown prevented both sides from performing their obligations under a contract?

Any expectation by counsel or witnesses that extensive adjournments to current fixtures will be granted due to delays caused by the COVID pandemic have been put to rest with a recent High Court decision.

The Employment Court has held that a courier driver engaged under an independent contractor’s agreement is at law an employee, and entitled to the protections and benefits of the Employment Relations, Wages Protection, Holidays, and Parental leave legislation.

A shipowner’s right to limit liability is a well-known feature of international maritime conventions. The right to limit liability exists unless it can be proved that the loss resulted from the shipowner’s “personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result”.

Judges often need to make determinations on matters requiring the application of expertise or specialised knowledge. An expert gives opinion evidence to the Court on a technical, scientific or other specialist issue. Experts give evidence of opinion, not fact, based on their knowledge, training or experience.

In the recent decision of Bolstad v EQC & Tower Insurance [2019] NZHC 3283 the High Court declined to transfer a proceeding to the Canterbury Earthquakes Insurance Tribunal (Tribunal).

Following an earlier summary of the litigation our Senior Associate Darren Turnbull takes an in-depth look at the decision and the implications for liability insurers in New Zealand.

On 11 November 2019, the New Zealand Court of Appeal delivered an important judgment – the first case of its kind to be decided by the New Zealand Court of Appeal. The appeal was from a decision of the High Court that insurers of at-fault drivers are liable to pay third party replacement hire car costs that not-at-fault drivers agreed to pay to hire replacement vehicles, while their damaged vehicle is being repaired.

On 30 October 2019, the Supreme Court of the United Kingdom delivered an important judgment (Travelers Insurance Co Ltd v XYZ) which addressed the question whether a liability insurer should be subject to a non-party costs order as a result of the role it played in litigation.

In 2013 the Body Corporate and unit owners of the Waterfront Apartments in Napier issued proceedings against the Napier City Council (Council) and other defendants alleging that their properties had been constructed with watertightness, fire protection and structural defects.

In a recent decision from the New South Wales Court of Appeal, Bank of Queensland v AIG Australia Ltd [2019] NSWCA 190, the Court overturned a decision of the Supreme Court which considered whether there were multiple claims under a Civil Liability Insurance Policy and, if so, whether they should be aggregated.

In May 2018 Mr & Mrs Ross (Ross) issued proceedings against Southern Response Earthquake Services Ltd (SR) claiming that SR provided incomplete information relevant to the settlement of their residential earthquake claim. The causes of action largely reflect those recently determined in Dodds v Southern Response Earthquake Services Ltd [2019] NZHC 2016.

Southern Response had thought it had settled the Dodds’ insurance claim, in December 2013. It had provided the Dodds with the costing to rebuild their home that the Dodds were entitled to be paid under their policy. But it did not provide them details of the costs they were not entitled to.

Trial periods can be useful tools for employers to assess whether an employee can meet employment expectations and is the right fit. As of 6 May 2019, they are permissible only for employers who employ fewer than 20 employees

Bob Jones was in the news again recently, not as might be expected for an incendiary newspaper column or an airline fracas, but the more mundane business of voidable insolvent transactions and another twist in the sorry saga of Blue Chip NZ.

When will a Court transfer a proceeding to the Canterbury Earthquake Insurance Tribunal?

The CEIT, chaired by former District Court Judge Chris Somerville, has been established with the objective of resolving longstanding Canterbury earthquake insurance disputes in a “speedy, flexible and cost-effective way”.

In Bushline Trustees Limited v ANZ & England [2019] NZCA 245, the Court of Appeal has reversed the High Court judgment.

The entitlement to replacement benefits is conditional on reinstatement by the insured and cannot be assigned.

The English Admiralty Court recently released a judgment illustrating the application of established principles regarding seaworthiness following the grounding of a cargo ship. For the first time, a Court held that a defective passage plan prepared prior to the commencement of the voyage rendered the vessel unseaworthy.

A claim is made against an insured, who turns to its insurer for cover. The insurer instructs a lawyer to act in the defence of the claim. Normally this tri-partite relationship works well, because there is a common interest in defeating the claim or reducing the damage. However, tensions can arise due to the differing interests and obligations of the parties.

The UK Court Appeal has recently again considered the Hague Visby Rules and in particular the meaning of the potential defence of Fire and the burden of proof on Carrier. In this case a fire was stared deliberately by the Chief Engineer, and Cargo interests sought to say the deliberate nature of the crew’s actions meant the Carrier could not rely on the fire defence.

What duties do a broker and an insurer owe to an insured to tell the insured about the extent of their insurance cover and if that cover is adequate for their changing needs or to cover their claim? Would it be enough to place the insurance requested by the insured and tell the insured?

Sometimes, an insured does something that breaches the fundamental obligation of good faith that underpins all insurance contracts. In those circumstances, the insurer may wish to bring an end to the insurance contract and its obligations.

Mr Sandman sued Wilson McKay for dishonest assistance. He alleged that Wilson McKay had knowingly assisted the daughter of, and an attorney for the testator in producing a will that significantly reduced the benefits that were provided for him in a prior will.

If negotiations are the evidence of what a contract means, why write the contract at all?

On the topic of sexual harassment what usually comes to mind is an employer, employee or client/customer making sexually suggestive remarks to an employee, or touching another employee inappropriately.

Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27 the NSW Court of Appeal determines this issue in Australia.

Volcafe v CSAV [2018] UKSC 61 – Burden of Proof in Cargo Claims under the Hague and Hague-Visby Rules – The Supreme Court in the UK clarifies the Legal Test.

Malthouse Ltd v Rangatira Ltd [2018] NZCA 621 (20 December 2018) the Court of Appeal clarifies the role of “commercial sense” in contract interpretation.

The workshop provided an opportunity to keep abreast of topical issues and meet with colleagues across the marine and insurance industry.

Which collision rules apply when one vessel is simply drifting, awaiting a pilot?

A recent High Court decision, gives some guidance to insurers and insureds on what “when new” vs “as new” policies require of insurers and what repairs are required to rubble foundations

McElroys is proud to announce that it has won the Insurance Specialist Law Firm of the Year award.

The High Court in Bligh v Earthquake Commission [2018] NZHC 2392 has quashed orders that a solicitor pays costs incurred after the solicitor withdrew as counsel.

On 15 August 2018, the Supreme Court delivered its judgment in the long-running Feltex litigation.1 This was a representative action brought by Eric Houghton on behalf of approximately 3,600 shareholders.

Three companies appealed against sentences imposed on them for breaches of the Health and Safety at Work Act 2015 (HSWA), Stumpmaster, Tasman Tanning and Niagra Sawmilling.

In September 2010 the Southland Stadium roof partially collapsed following a heavy snowstorm. The Stadium required extensive repairs costing over $15 million. Southland Indoor Leisure Centre Charitable Trust (Trust), the owner, brought proceedings against AS Major, the engineer responsible for the Stadium’s structural design, and Invercargill City Council (Council).

Prattley owned a commercial building in Worcester Street, Christchurch. It was insured for indemnity value only with a sum insured of $1,605,000. It was damaged in the 4 September 2010, 26 December 2010 and 22 February 2011 earthquakes.

Trustees Executors Ltd (TEL) issued proceedings against Fund Managers Canterbury Ltd (FMC), its directors and officers, and auditors, in the Wellington High Court. The claim against FMC and the D&Os concerned alleged negligence and breach of the Fair Trading Act arising from lending decisions in conjunction with the Canterbury Mortgage Trust Group Investment Fund (CMT) which was wound up in 2009.

In the first case the Montecillo Trust engaged Mr Rutter for the purposes of design, project management and supervision for the construction of a rest home in Dunedin in 2005.

The settlement agreement should not be re-opened as the mistakes alleged by Prattley were the kind contemplated by the parties and therefore covered by the release clause.

Mark Hotchin, a director of Hanover Finance Ltd and other collapsed finance companies (referred to collectively as Hanover), faced proceedings by the Financial Markets Authority (FMA). The FMA alleged that the Hanover directors, including Hotchin, distributed offer documents containing untrue statements on which investors relied when purchasing securities or rolling over their investments.