Toeta v Department of Electric Power Supply [1989] CKHC 2; PLAINT No 51.1988 (22 May 1989)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
PLAINT No. 51/88

BETWEEN

TUAKANA TOETA
of Rarotonga, Builder
First Plaintiff

AND

TATA TOETA
of Rarotonga, Married Woman
Second Plaintiff

AND

DEPARTMENT OF ELECTRIC POWER SUPPLY
a Department of state constituted pursuant to the provisions of the
Department of Electric Power Supply Act 1973-74
Defendant

Counsel: Mr. Gibson for Plaintiffs
Mr. McFadzien for Defendant.

Date of Hearing: 19^th and 22^nd May 1989
Date of Judgment: 22 May 1989.

JUDGMENT OF ROPER CJ

Shortly after 8.00am on the 9^th of June 1988 the Plaintiffs' home in Arorangi was destroyed by fire and they now claim that the fire was caused by the negligence of the Defendant. The defence is a simple denial of negligence.

Counsel have agreed that the inquiry should be limited to the question of liability at this stage, with damages reserved for further consideration should negligence be proved.

When Mr. Toeta commenced building the house he had arranged for a temporary electricity supply to be brought in and although he and his wife had moved into the house some two weeks before the fire they were still dependent on this temporary supply. The house was still not complete and Mr. Toeta worked on it when he had time. The temporary supply consisted of a main cable which ran from the Defendant's pole to a meter box on a mango tree close to the house. A length of standard domestic flex ran from a three pin plug on the meter box into the house through a window to a multi-plug unit. The main cable from the pole to the meter box had been installed by the Defendant and a private firm of electrical contractors had put the meter box in place. Mr. Toeta himself ran the flex from the meter box to the house. The main cable installed by the Defendant did not go directly to the meter box but to a bracket attached to the mango. It then looped to the ground before entering the meter box. The flex installed by Mr. Toeta was looped around the tree and through the window.

On the 20^th May 1988 the power supply to the house failed. A burn was seen on the main cable. A fault man from the power authority attended and according to Mr. Toeta, "swapped some wires". Power was restored. On the 21^st of May Mr. Toeta noticed sparks on the main cable. This phenomenon had also been observed by Mr. Wichman, who lived with the Toetas. He described the sparks as moving in the direction of the mango tree. A repairman arrived on the night of the 21^st, cut the cable where the sparks had been observed and made a temporary repair, which consisted of nothing more than joining various wires in a crude fashion and leaving them bare of insulation. Mr. Samuel the fault man said that he had referred the matter to the fault man on day shift so that a proper repair could be done. Although Mrs. Toeta rang the power authority on about three occasions no-one came to carry out the repair. A few days before the fire Mr. Toeta noticed sparking at the temporary joint.

On the morning of the 9^th June Mrs. Toeta was speaking on the phone when she heard an unusual sound and observed, as she said, "a flash coming from the outside, a sprinkling of fire with a hissing and a sparkling."

This "sparkling" continued along the flex to where it ran under a wardrobe. She said the clothes in the wardrobe began to burn. She then grabbed her children and ran from the house.

The Expert Evidence

Some three days before the fire Mr. Joseph, a linesman with the power authority and a friend of the Toetas, saw the temporary join in the course of a visit to the house. He thought the join was unsafe and that it showed signs of previous burning and melting. He declined Mr. Toeta's invitation to fix it as it was a job for a faultman and a request for repair had already been made.

On the 15^th December 1988 the evidence of a Mr. Paul Groutsch was taken before Quilliam J as Mr. Groutsch was not going to be available to give evidence at the substantive hearing. He was a Senior Electrical Inspector with the Defendant.

Mr. Groutsch's evidence is not very helpful because he had convinced himself that the fire had been caused by an explosion of gas leaking from a gas bottle and ignited by a spark from a nearby refrigerator and that any electrical fault had been a consequence of the fire and not the cause of it. Mr. Gibson sought to counter that by calling a number of witnesses who said the refrigerator was not switched on and in the course of the hearing Mr. McFadzien very properly abandoned the exploding gas theory.

Mr. Gibson called Mr. Anderson, a registered electrician since 1978, a holder of an advance trade certificate and presently Chief Engineer at the Rarotongan Hotel.

Mr. Anderson concluded that the problem had started at the temporary join in the main cable, aided by moisture and contaminants, and that the join should have been insulated. From an examination of the cable and flex he believed that there had been a partial short circuit at the temporary join between the phase and neutral, resulting in spiral melting along the length of the cable with the resulting high current then passing to the flex. He believed that some current went through the meter, although not enough to blow the fuse, but the bulk of the power went directly to the flex. This caused the flex to arc and char with sufficient heat to cause a fire.

Mr. Turaki Acting Secretary of the Defendant and the holder of the New Zealand Certificate of Engineering - Electrical option was called by Mr. McFadzien. The substance of his evidence was that the electrical fault which caused this fire occurred within the house and not along the length of cable for which the Defendant was responsible. He said that if there had been a 10 amp fuse in the meter box that would have blown and there would have been no problem.

There was no evidence of any circumstance in the house which may have been responsible for a fault. The only appliances in use were a radio and a video, which according to Mr. Anderson, would result in only one amp running through the flex. Furthermore, if the fault occurred in the house one would expect the meter fuse and the pole fuse to be in the same condition, but they are not. The suggestion that the fire was caused by a fault in the house wiring is too speculative to justify serious consideration.

It is for the plaintiff in this case to establish on balance that the fire which destroyed their house resulted from negligence on the part of the Defendant. I am satisfied that it was negligent to leave the temporary join in the state it was. The Defendant, through its employees was aware of the condition of the uninsulated join and must have been aware of the hazard it presented. Despite requests it did not remedy the fault and the fire was a direct result of that failure.

I therefore find that there was negligence on the part of the Defendant which justifies award of damages. That is the only decision I am required to make at this stage.

The case is therefore adjourned sine die to be brought on at 7 days notice should that necessary.

ROPER CJ

22 MAY 1989