"The nuclear meltdown at Fukushima ... the Fonterra botulism scare ... the Christchurch earthquakes – in all these recent crises the role played by scientists has been under the spotlight. What is the first duty of scientists in a crisis – to the government, to their employer, or to the wider public desperate for information? And what if these different objectives clash? In this penetrating BWB Text, leading scientist Shaun Hendy finds that in New Zealand, the public obligation of the scientist is often far from clear and that there have been many disturbing instances of scientists being silenced. Experts who have information the public seeks, he finds, have been prevented from speaking out. His own experiences have led him to conclude that New Zealanders have few scientific institutions that feel secure enough to criticise the government of the day." - Publisher information. http://librarysearch.auckland.ac.nz/UOA2_A:Combined_Local:uoa_alma21259423940002091
In September 2010 and February 2011 the Canterbury region of New Zealand was struck by two powerful earthquakes, registering magnitude 7.1 and 6.3 respectively on the Richter scale. The second earthquake was centred 10 kilometres south-east of the centre of Christchurch (the region’s capital and New Zealand’s third most populous urban area, with approximately 360,000 residents) at a depth of five kilometres. 185 people were killed, making it the second deadliest natural disaster in New Zealand’s history. (66 people were killed in the collapse of one building alone, the six-storey Canterbury Television building.) The earthquake occurred during the lunch hour, increasing the number of people killed on footpaths and in buses and cars by falling debris. In addition to the loss of life, the earthquake caused catastrophic damage to both land and buildings in Christchurch, particularly in the central business district. Many commercial and residential buildings collapsed in the tremors; others were damaged through soil liquefaction and surface flooding. Over 1,000 buildings in the central business district were eventually demolished because of safety concerns, and an estimated 70,000 people had to leave the city after the earthquakes because their homes were uninhabitable. The New Zealand Government declared a state of national emergency, which stayed in force for ten weeks. In 2014 the Government estimated that the rebuild process would cost NZ$40 billion (approximately US$27.3 billion, a cost equivalent to 17% of New Zealand’s annual GDP). Economists now estimate it could take the New Zealand economy between 50 and 100 years to recover. The earthquakes generated tens of thousands of insurance claims, both against private home insurance companies and against the New Zealand Earthquake Commission, a government-owned statutory body which provides primary natural disaster insurance to residential property owners in New Zealand. These ranged from claims for hundreds of millions of dollars concerning the local port and university to much smaller claims in respect of the thousands of residential homes damaged. Many of these insurance claims resulted in civil proceedings, caused by disputes about policy cover, the extent of the damage and the cost and/or methodology of repairs, as well as failures in communication and delays caused by the overwhelming number of claims. Disputes were complicated by the fact that the Earthquake Commission provides primary insurance cover up to a monetary cap, with any additional costs to be met by the property owner’s private insurer. Litigation funders and non-lawyer claims advocates who took a percentage of any insurance proceeds also soon became involved. These two factors increased the number of parties involved in any given claim and introduced further obstacles to resolution. Resolving these disputes both efficiently and fairly was (and remains) central to the rebuild process. This created an unprecedented challenge for the justice system in Christchurch (and New Zealand), exacerbated by the fact that the Christchurch High Court building was itself damaged in the earthquakes, with the Court having to relocate to temporary premises. (The High Court hears civil claims exceeding NZ$200,000 in value (approximately US$140,000) or those involving particularly complex issues. Most of the claims fell into this category.) This paper will examine the response of the Christchurch High Court to this extraordinary situation as a case study in innovative judging practices and from a jurisprudential perspective. In 2011, following the earthquakes, the High Court made a commitment that earthquake-related civil claims would be dealt with as swiftly as the Court's resources permitted. In May 2012, it commenced a special “Earthquake List” to manage these cases. The list (which is ongoing) seeks to streamline the trial process, resolve quickly claims with precedent value or involving acute personal hardship or large numbers of people, facilitate settlement and generally work proactively and innovatively with local lawyers, technical experts and other stakeholders. For example, the Court maintains a public list (in spreadsheet format, available online) with details of all active cases before the Court, listing the parties and their lawyers, summarising the facts and identifying the legal issues raised. It identifies cases in which issues of general importance have been or will be decided, with the expressed purpose being to assist earthquake litigants and those contemplating litigation and to facilitate communication among parties and lawyers. This paper will posit the Earthquake List as an attempt to implement innovative judging techniques to provide efficient yet just legal processes, and which can be examined from a variety of jurisprudential perspectives. One of these is as a case study in the well-established debate about the dialogic relationship between public decisions and private settlement in the rule of law. Drawing on the work of scholars such as Hazel Genn, Owen Fiss, David Luban, Carrie Menkel-Meadow and Judith Resnik, it will explore the tension between the need to develop the law through the doctrine of precedent and the need to resolve civil disputes fairly, affordably and expeditiously. It will also be informed by the presenter’s personal experience of the interplay between reported decisions and private settlement in post-earthquake Christchurch through her work mediating insurance disputes. From a methodological perspective, this research project itself gives rise to issues suitable for discussion at the Law and Society Annual Meeting. These include the challenges in empirical study of judges, working with data collected by the courts and statistical analysis of the legal process in reference to settlement. September 2015 marked the five-year anniversary of the first Christchurch earthquake. There remains widespread dissatisfaction amongst Christchurch residents with the ongoing delays in resolving claims, particularly insurers, and the rebuild process. There will continue to be challenges in Christchurch for years to come, both from as-yet unresolved claims but also because of the possibility of a new wave of claims arising from poor quality repairs. Thus, a final purpose of presenting this paper at the 2016 Meeting is to gain the benefit of other scholarly perspectives and experiences of innovative judging best practice, with a view to strengthening and improving the judicial processes in Christchurch. This Annual Meeting of the Law and Society Association in New Orleans is a particularly appropriate forum for this paper, given the recent ten year anniversary of Hurricane Katrina and the plenary session theme of “Natural and Unnatural Disasters – human crises and law’s response.” The presenter has a personal connection with this theme, as she was a Fulbright scholar from New Zealand at New York University in 2005/2006 and participated in the student volunteer cleanup effort in New Orleans following Katrina. http://www.lawandsociety.org/NewOrleans2016/docs/2016_Program.pdf
The recent instances of seismic activity in Canterbury (2010/11) and Kaikōura (2016) in New Zealand have exposed an unexpected level of damage to non-structural components, such as buried pipelines and building envelope systems. The cost of broken buried infrastructure, such as pipeline systems, to the Christchurch Council was excessive, as was the cost of repairing building envelopes to building owners in both Christchurch and Wellington (due to the Kaikōura earthquake), which indicates there are problems with compliance pathways for both of these systems. Councils rely on product testing and robust engineering design practices to provide compliance certification on the suitability of product systems, while asset and building owners rely on the compliance as proof of an acceptable design. In addition, forensic engineers and lifeline analysts rely on the same product testing and design techniques to analyse earthquake-related failures or predict future outcomes pre-earthquake, respectively. The aim of this research was to record the actual field-observed damage from the Canterbury and Kaikōura earthquakes of seismic damage to buried pipeline and building envelope systems, develop suitable testing protocols to be able to test the systems’ seismic resilience, and produce prediction design tools that deliver results that reflect the collected field observations with better accuracy than the present tools used by forensic engineers and lifeline analysts. The main research chapters of this thesis comprise of four publications that describe the gathering of seismic damage to pipes (Publication 1 of 4) and building envelopes (Publication 2 of 4). Experimental testing and the development of prediction design tools for both systems are described in Publications 3 and 4. The field observation (discussed in Publication 1 of 4) revealed that segmented pipe joints, such as those used in thick-walled PVC pipes, were particularly unsatisfactory with respect to the joint’s seismic resilience capabilities. Once the joint was damaged, silt and other deleterious material were able to penetrate the pipeline, causing blockages and the shutdown of key infrastructure services. At present, the governing Standards for PVC pipes are AS/NZS 1477 (pressure systems) and AS/NZS 1260 (gravity systems), which do not include a protocol for evaluating the PVC pipes for joint seismic resilience. Testing methodologies were designed to test a PVC pipe joint under various different simultaneously applied axial and transverse loads (discussed in Publication 3 of 4). The goal of the laboratory experiment was to establish an easy to apply testing protocol that could fill the void in the mentioned standards and produce boundary data that could be used to develop a design tool that could predict the observed failures given site-specific conditions surrounding the pipe. A tremendous amount of building envelope glazing system damage was recorded in the CBDs of both Christchurch and Wellington, which included gasket dislodgement, cracked glazing, and dislodged glazing. The observational research (Publication 2 of 4) concluded that the glazing systems were a good indication of building envelope damage as the glazing had consistent breaking characteristics, like a ballistic fuse used in forensic blast analysis. The compliance testing protocol recognised in the New Zealand Building Code, Verification Method E2/VM1, relies on the testing method from the Standard AS/NZS 4284 and stipulates the inclusion of typical penetrations, such as glazing systems, to be included in the test specimen. Some of the building envelope systems that failed in the recent New Zealand earthquakes were assessed with glazing systems using either the AS/NZS 4284 or E2/VM1 methods and still failed unexpectedly, which suggests that improvements to the testing protocols are required. An experiment was designed to mimic the observed earthquake damage using bi-directional loading (discussed in Publication 4 of 4) and to identify improvements to the current testing protocol. In a similar way to pipes, the observational and test data was then used to develop a design prediction tool. For both pipes (Publication 3 of 4) and glazing systems (Publication 4 of 4), experimentation suggests that modifying the existing testing Standards would yield more realistic earthquake damage results. The research indicates that including a specific joint testing regime for pipes and positioning the glazing system in a specific location in the specimen would improve the relevant Standards with respect to seismic resilience of these systems. Improving seismic resilience in pipe joints and glazing systems would improve existing Council compliance pathways, which would potentially reduce the liability of damage claims against the government after an earthquake event. The developed design prediction tool, for both pipe and glazing systems, uses local data specific to the system being scrutinised, such as local geology, dimensional characteristics of the system, actual or predicted peak ground accelerations (both vertically and horizontally) and results of product-specific bi-directional testing. The design prediction tools would improve the accuracy of existing techniques used by forensic engineers examining the cause of failure after an earthquake and for lifeline analysts examining predictive earthquake damage scenarios.
