Bligh case

In August 2018, the High Court released a judgment that rejected the entirety of Mr Bligh’s claim that a $950,000 repair of his home was necessary as a result of the September 2010 earthquake.

EQC welcomes the High Court’s decision as it follows on from other recent decisions that confirm EQC’s approach to assessing and determining earthquake damage in these cases is correct.

Justice Nation confirmed Mr Bligh had the burden of proving, on the balance of probabilities, the facts that are material to his claim that his property sustained damage as a result of the earthquake.  

His Honour had difficulties accepting Mr Bligh’s credibility and accepting his assertions that certain parts of his home and garage were damaged as a result of the earthquakes when these were not consistent with the technical evidence that was presented during the hearing. 

His Honour held Mr Bligh was unable to prove there was earthquake damage to his property for which either EQC or IAG could be liable.  As such, Mr Bligh’s case was dismissed in its entirety.

A copy of the judgment can be found here

Some key outcomes of the Bligh decision can be summarised as follows:

  • EQC’s approach to assessing damage was correct: In particular, the High Court endorsed EQC’s approach to identify the particular physical change, alteration or disturbance (if any) that occurred to the structure or materials of Mr Bligh’s house (and garage) as the direct result of the earthquake and how (if at all) any such physical change materially affected the structural integrity or performance of the house for the worse (at [29]).
  • The plaintiff must provide credible technical expert evidence to prove the loss they allege they have sustained: The judgment is a reminder to homeowners that they have the burden of proving, on the balance of probabilities, the loss they believe they have sustained as a result of an earthquake (at [31]).  In this case Mr Bligh’s evidence was inconsistent with the expert evidence called by EQC and IAG that explained why there was no evidence of earthquake damage.  The High Court was also critical of Mr Bligh’s structural engineer, Mr Kearney, who allowed his assessment of the property to be inappropriately influenced by Mr Bligh’s views as to the cause of the damage to his property (at [115-117]).
  • The credibility of witnesses is important: The High Court had to assess the credibility of certain lay witnesses who asserted the property sustained damage as a result of the earthquakes.  The High Court noted this assessment involved an assessment of a witness’s honesty in the evidence they had given, and if a witness had been shown to have been dishonest, their evidence in respect of this matter would be put to one side (at [49]).  The High Court noted that Mr Bligh’s credibility as a witness was severely dented because his assertions of alleged earthquake damage was undermined by the evidence of other witnesses or conclusions  drawn from the photographic evidence (both pre and post-earthquake) presented during the course of the hearing (at [89]).

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