Goodier case

In September 2019 the High Court released a judgment that rejected the claim of the Goodiers that EQC and IAG were liable for substantially higher payments to remediate their house and garage.

The case concerned a landslide that occurred during the June 2015 Whanganui storm event.  This landslide (one of many) washed away a significant part of the driveway, land, and retaining walls at the Goodiers’ property on Bastia Hill in Whanganui.

It was agreed the landslip was a natural disaster and EQC and IAG had already paid the Goodiers $136,790.27 for loss of land, retaining walls, actual damage to the residential building, together with an imminent risk payment is respect of further damage occurring to a corner of the garage. 

By the time the hearing occurred, the Goodiers had dropped a claim against EQC for any further payment in respect of land and for general damages. The case really revolved around whether the landslip had caused significant further damage to the house and garage.

A PDF copy of the decision can be found here (1.1MB)

Some key legal points to note are:

  • Justice Cull reiterated the general principle of insurance law, that it is the insured who must make out his or her claim under the policy of insurance. They have the burden of proving, on the balance of probabilities, every material fact of their cause of action [79]. A shift in that burden to a point where there is a “tactical” burden on the insurer will only shift where there is credible evidence supporting a proposition made by the plaintiff, to the extent required to meet their evidential burden [81].  
  • The Judge did not accept the “inference” evidence of the laypersons called as witnesses by the Goodiers, in the face of rational expert evidence [348]. She concluded the layperson evidence needed to be treated with caution, especially around the timing of the damage and that it didn’t resolve the issue of ‘causation” [222].
  • The Goodiers’ expert was not a structural or geotechnical engineer and the Judge found he was unable to give a coherent explanation of his theory of how the landslip might have caused the further damage to the house and garage claimed [104]. In contrast she found the expert geotechnical and structural evidence from EQC and IAG sound and concluded it was demonstrated that the further damage to both the house and garage was not caused by the landslip [346].
  • Mr Shand, the Goodiers’ lawyer had tried to advance an argument based on overseas authorities that the house should be covered by insurance because it was unusable or uninhabitable [72]. This was on the basis that the Council had issued a s124 notice under the Building Act 2004, declaring the building dangerous and not to be used or occupied. The court rejected this argument and noted it was bound by the Kraal decision in New Zealand, which required physical damage to the property [77]. She held the s124 notice did not impact on the EQC Act obligations [352]. 

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