Skip to content
Res Ipsa

Southern Response Earthquake Services Limited v Dodds [2020] NZCA 395, 7 September 2020

Court
Court of Appeal
Judgment
7 September 2020
Neutral
[2020] NZCA 395

Areas of law

Insurance - Contract - Misrepresentation - Fair Trading Act 1986 - Breach of Duty of Good Faith - Damages
Download PDF
Preparing viewer…

Judgment analysis

AI-generated summary

It can misstate holdings, facts, or citations. Always confirm against the judgment PDF.

Facts

The respondents' house was damaged beyond economic repair in the 2010/2011 Canterbury earthquakes. Their insurance policy with Southern Response provided a 'Buy Another House' option, where the insurer would pay the cost of buying another house, capped at the cost of 'rebuilding your house on its present site'. To quantify this cap, Southern Response provided the Dodds with an 'Abridged Detailed Repair/Rebuild Analysis' (Abridged DRA) prepared by Arrow International Ltd, which showed a rebuild cost of $895,937.78. Southern Response represented this figure as the maximum amount available under the 'Buy Another House' option. The Dodds elected this option and entered into a Settlement Agreement on this basis. They later discovered, through a Privacy Act request, that Southern Response held a 'Complete DRA' which contained an additional 'AMI Office Use' section. This section included further estimated costs for rebuilding, such as professional fees and contingencies, amounting to approximately $205,000 more than the figure in the Abridged DRA. Southern Response had intentionally not disclosed this information, holding a good faith but incorrect view that these costs were not relevant to the cap for the 'Buy Another House' option. The respondents sued for the difference, alleging misrepresentation, misleading and deceptive conduct under the Fair Trading Act 1986, and breach of a duty of good faith. The High Court found Southern Response liable for misrepresentation and breach of the FTA.

Held

  1. An insurer who makes unqualified, absolute statements to a consumer insured about their policy entitlement based on an incomplete version of an expert report makes actionable misrepresentations of fact (that the report is complete and represents the insurer's full estimate) and of law/mixed fact and law (about the policy entitlement) under the CCLA if those statements are incorrect.
  2. Providing an abridged expert report while withholding a more comprehensive version containing higher cost estimates, and representing the abridged version as the complete basis for a settlement offer, constitutes misleading and deceptive conduct in breach of s 9 of the Fair Trading Act 1986.
  3. The loss suffered by an insured who is induced by such misrepresentations to settle their claim is the difference between the true value of their rights under the policy (as would be calculated with the complete information) and the lower sum they were persuaded to accept. This loss is recoverable as damages.
  4. To establish inducement, the insured need only show that the misrepresentations were a material factor in their decision to enter the specific settlement agreement at the offered figure; they are not required to speculate on what alternative course they would have taken had correct information been provided.

The appeal is allowed in part. The damages awarded to the respondents in the High Court are reduced by $10,656.44. The appeal is otherwise dismissed. The cross-appeal is dismissed.

Key passages3

To determine if there has been a misrepresentation of fact, the enquiry is what a reasonable person would have understood from the words in all the circumstances. Relevant factors include the transaction's nature, parties' knowledge, their relative positions, and the words used.

“[11] Whether there has been a misrepresentation of fact is not determined merely by considering the literal meaning of the words used without regard to the context. The enquiry is what a reasonable person would have understood from those words in all the circumstances. Relevant considerations will often include the nature and subject-matter of the transaction, the respective knowledge of the parties, their relative positions and the words used. Where a party with superior knowledge takes it upon itself to make a representation of fact without qualifying it by reference to the basis for its assertion, it will generally have to accept the consequences of being wrong. However, each case will ultimately turn on its own facts.”

It is doubtful that the old common law rule that statements of law could not amount to misrepresentations remains good law, following English developments holding the distinction between statements of law and fact is no longer maintainable for misrepresentation.

“[132] ...it was held in Pankhania v HackneyLBC that the “misrepresentation of law” rule is no longer good law. Thus, for the purposes of the law of misrepresentation, the distinction between statements of law and statements of fact is no longer maintainable and that even an incorrect statement of an abstract proposition of law may amount to a misrepresentation unless it is apparent that all that is being offered is an opinion without implication that the speaker has reasonable grounds for that opinion.”

Statements made by an insurer about entitlements under its policies, where it is not apparent that only an opinion is being offered and where it is reasonable for the insured to rely on the statement's correctness, qualify as representations for the purposes of s 35 of the CCLA.

“[133] For present purposes, however, it is sufficient for us to say that the statements made by Southern Response about entitlements under policies issued by it, in circumstances where it is not apparent that all that is being offered is an opinion, and where it is reasonable for the representee to rely upon the correctness of the statement, qualify as representations for the purposes of s 35 of the CCLA.”

Cases mentioned in judgment

  • Avonside Holdings Ltd v Southern Response Earthquake Services Ltd [2013] NZHC 1433

  • Avonside Holdings Ltd v Southern Response Earthquake Services Ltd [2014] NZCA 483

    Followed
  • Bloxham v Robinson (1996) 7 TCLR 122 (CA)

  • Brennan v Bolt Burdon (a firm) [2004] EWCA Civ 1017, [2005] QB 303

    Distinguished
  • Clifton-Mogg v National Bank of New Zealand Ltd (2001) 10 TCLR 213 (HC)

  • Cox & Coxon Ltd v Leipst [1999] 2 NZLR 15 (CA)

  • Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805 (CA)

  • Dodds v Southern Response Earthquake Services Ltd [2019] NZHC 2016

  • Dodds v Southern Response Earthquake Services Ltd [2019] NZHC 2741

  • Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11, [2012] 2 NZLR 726

    Applied
  • Mouat v Clark Boyce [1992] 2 NZLR 559 (CA)

  • New Zealand Motor Bodies Ltd v Emslie [1985] 2 NZLR 569 (HC)

    Applied
  • Pankhania v London Borough of Hackney [2002] EWHC 2441 (Ch)

  • Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2015] NZHC 1444

    Distinguished
  • Red Eagle Corp Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492

    Applied
  • Ridgway Empire Ltd v Grant [2019] NZCA 134, (2019) 20 NZCPR 236

    Applied
  • Southern Response Earthquake Services Ltd v Avonside Holdings Ltd [2015] NZSC 110, [2017] 1 NZLR 141

    Followed
  • Taylor v Asteron Life Ltd [2020] NZCA 354

  • Young v Tower Insurance Ltd [2016] NZHC 2956, [2018] 2 NZLR 291

Legislation mentioned

  • Fair Trading Act 1986, s 9, s 13, s 43
  • Contract and Commercial Law Act 2017, s 35
  • Privacy Act 1993
  • High Court Rules 2016, r 11.10
  • Interest on Money Claims Act 2016
  • Consumer Guarantees Act 1993