In ruling on the application by the Army for costs against the Berrymans, Justice John Wild summarised the crux of the issues.
Although Mr Moodie's [the Berryman's lawyer] written outline of submissions was a vitriolic attack on the Army rather than a logical, measured submission, I think his points are these (and this is very much me recasting Mr Moodie's argument for him):
a) Had the Army told the whole truth to the coroner at his inquest, the Army would have included in its evidence the essence of the Army report which reflected the Butcher report, if not the Butcher report itself.
b) Had the coroner had that evidence, he would not have found that the cause of the collapse of the bridge - and therefore of Mr Richards' death - was lack of maintenance by the Berrymans.
c) Instead, the coroner would have found that the bridge collapsed under the weight of Mr Richards' utility truck because of:
i) The Army's faulty construction of the bridge transoms (the Army's use of unsuitable untreated timber, laminated or bolted together without the joins being flashed or sealed), coupled with:
ii) The speed and weight of Mr Richards' vehicle.
d) The coroner would not have found lack of maintenance was a cause of the bridge collapsing, ie, he would have found the Berrymans blameless.
On the choice of timber, Justice Wild referred to the Butcher report.
The relevant part of the Butcher report is: The decision to use untreated timber in the original bridge cannot be supported. The October/November 1985 design was based upon the use of macrocarpa, which untreated has a reasonable durability when not in ground contact. The alternative suggested was Tanalith-treated pinus radiata.
In the construction of the bridge, I am informed that second-hand oregon from a building in Wanganui was used for the transoms and stringers.
Imported oregon has been widely used in New Zealand in the past as structural material but in my experience always under cover. It is durable when continuously immersed in water, but has a very short life when exposed to the weather or when subject to alternate wetting and drying.
Mr Butcher said: I understand from Mr Berryman that the final design prepared by [the junior Army officer, whose name is suppressed] was subject to review by Mr Berryman and Mr W. Emmett, a Wanganui bridge contractor, and some changes were made to the towers, cables and the connection of the cables to the anchorages.
The decision was also made about this time to use second-hand oregon from the Imlay Freezing Works and available from the Wanganui Demolition Co. This was in place of the more expensive treated pinus radiata allowed for in the earlier designs ... Although Mr Butcher does not state in that passage who decided to switch ... the inference is that it was the Berrymans, as a cost-saving measure.
Mr Moodie submitted that "the use of untreated oregon had been approved by [the junior Army officer] before being purchased for the project by the Berrymans".
Justice Wild said the officer's response to the substitution of the oregon timber was not clear.
On the role of the Army, Justice Wild's ruling says:
The final submissions to the Coroner's Court by counsel for the Army include this: It is clear that the officer was junior and necessarily did not have years of practical experience. So far as the Army was concerned, this was a construction exercise which was carried out properly. That is, the bridge was built in a proper manner ... Accordingly, in a causative sense, there was nothing in the entire construction of this bridge that contributed to the accident.
In the face of the Army report, and the Butcher report on which it was based, that is clearly not correct.
On the building of the bridge, Justice Wild commented:
I agree with Mr Moodie that the Army's submission to the coroner that it had built the bridge in a proper manner, and that nothing in the entire construction of the bridge had contributed to the accident, was wrong, and that the Army either knew, or ought to have known, that it was wrong.
I accept Mr Moodie's submission that, had the coroner had the benefit of the Army report and/or the Butcher report, it is likely he would have attributed blame to the Army for initial faulty construction of the bridge ... Such attribution of blame would be consistent with the criticism the coroner did make of the Army, which was restricted to putting a comparatively junior, inexperienced and unqualified (in engineering terms) officer in charge of the bridge-building project.
Referring to the speed of Mr Richards, Justice Wild says:
The coroner did conclude that Mr Richards may well have been travelling in excess of the 5km/h speed restriction over the bridge and that his speed "may have contributed to the accident". However, the coroner saw, as the crucial point, the engineering evidence that the bridge was nearing the end of its practical life as a load-bearing structure and was bound to fail, and sooner not later ...
"I think the coroner's finding that the late Mr Richards may have contributed to his own death by travelling across the bridge at a speed in excess of the 5km/h restriction would not have altered.
On the coroner's verdict, Justice Wild says:
I am unable to accept Mr Moodie's submission that the coroner would have exculpated the Berrymans: held them blameless. Indeed, notwithstanding the benefit of the Butcher report, I consider the likelihood nigh certainty is that the coroner would still have found that the substantial and overriding cause of the collapse of the bridge was its decayed and dilapidated state, which resulted from the lack of any programme of inspection and regular maintenance.
As it was the Berrymans who, undeniably, had been responsible for maintaining the bridge from its handover by the Army, that finding would entail the coroner placing most of the blame for the collapse squarely on the Berrymans. Mr Berryman had formally accepted the maintenance responsibility in the Agreement of Satisfaction he signed on March 23, 1986, when the Army handed over the bridge ... It follows from what I have said above that I do not accept that the coroner, armed with the Butcher report, would have found the Berrymans blameless.
In his final comments, Justice Wild says:
The now very public "Berryman bridge saga" is a neat demonstration of several characteristics of New Zealand and New Zealanders, some of which are good, some unfortunate.
First, it demonstrates the admirable tendency of New Zealanders to rally behind people they perceive to be the underdogs ... Here, the public have perceived the Berrymans to be the underdogs. This is a good characteristic of New Zealanders, provided those they are supporting are worthy underdogs.
Second, it demonstrates the tendency and ability of "underdogs", and those advocating on their behalf, to manipulate public opinion by carefully selecting facts favourable to their cause, and ignoring or obscuring unfavourable facts. Mr Moodie has done that. For example, he has:
a) Obscured the position as to the selection of second-hand untreated oregon for the transoms and stringers under the bridge decking.
Publicly, and in his submissions to me on costs, Mr Moodie has stated that [the junior officer] approved the oregon before the Berrymans purchased it. Mr Moodie has never publicly acknowledged that the Army specified macrocarpa or tanalised pine for the transoms and stringers, and that the switch to untreated second-hand oregon was at the Berrymans' request, in order to save them the cost of the more expensive, and suitable, materials the Army had specified. As I have said, the Army's attitude to the Berrymans' choice of the oregon timber is unclear.
b) Ignored the evidence that the Berrymans were aware of the much-decayed state of the bridge before the fatal collapse occurred. I have referred to some of that evidence in this judgment, in particular the Berrymans' evidence to the coroner that they had, in 1993, contacted their engineers and a Wanganui bridge-builder respectively to design and fabricate replacement steel transoms for the bridge.
A third, and regrettable, New Zealand characteristic demonstrated by "the Berryman bridge saga" is the tendency of many New Zealanders to bash institutions which are important in our country. Here, the Defence Force has been thoroughly bashed.
The coroner has been bashed.
Other parts of the New Zealand judicial system, in particular this court, have also been bashed as somehow having been party to covering up Army "deceit and duplicity". As the facts of this matter gradually become publicly known, is it in order to ask whether all this bashing has been justified? And to ask what it has achieved?
Throughout all this, the Berrymans have steadfastly refused to accept any blame whatsoever ... Or, if ever they have, then I am unaware of it.
I have said enough in this judgment to indicate that I seriously doubt that the Berrymans are the blameless underdogs in this matter.
* The Berryman saga: 1986-2005
In 1986 King Country farmers Keith and Margaret Berryman asked the Army to build a suspension bridge leading on to their farm.
They paid $60,000 for materials, and the Army agreed to design and build the bridge as a training exercise for Fijian soldiers.
Structural parts of the bridge were built using untreated Oregon timber.
The Berrymans bought the timber, but the inexperienced Army engineersupervising the design and construction agreed it could be used.
In March 1994, beekeeper Ken Richards died when two timber beams supporting the deck failed, and his utility fell 30m into a river.
The Army told the coroner in 1997 the bridge was well-built, and nothing in its design or construction could have caused the failure.
The Coroner effectively cleared the Army. He held the Berrymans almost completely to blame, saying rot was evident and they should have seen it.
But the Army knew, or according to High Court Justice John Wild "ought to have known", what it told the coroner was wrong.
The Army had not disclosed to the coroner it held a confidential report that said it was wrong to build a bridge using timber prone to rotting.
Justice Wild made his remarks in a reserved decision awarding the Defence Force almost $9000 costs against the Berrymans, after a failed court attempt to get the Army's evidence made public.
The Solicitor-General is considering if there should be a fresh inquest.