Seru v Lautoka City Council [2011] FJHC 197; HBC111.2009 (1 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 111 of 2009

BETWEEN

MITIELI SERU
of Lot 80 Nanuya Street, Lautoka, Transport Officer, as the Administrator of the ESTATE OF NETANI TIKINITABUA also known as NETANI TINATITABUA late of Lot 80 Nanuya Street, Lautoka, Caretaker, Deceased, Intestate
Plaintiff

AND

LAUTOKA CITY COUNCIL
a body corporate duly constituted under the provision of the Local Government Act Cap 125.
1st Defendant

AND

FIJI ELECTRICITY AUTHORITY
a body corporate duly constituted under the provisions of the ELECTRICITY ACT CAP 180.
2nd Defendant

AND

LAUTOKA CITY COUNCIL
a body corporate duly constituted under the provisions of the Local Government Act Cap 125.
3rd Defendant

Before : Master Anare Tuilevuka

Solicitors : Chaudhary & Associates for the Plaintiff.
Mishra Prakash & Associates for the 1st Defendant.
Munro Leys, Solicitors for the 2nd Defendant.

Date of Hearing : 18th February 2011
Date of Ruling : 01st of April 2011

RULING

[1]. On the 1st of March 2008 at about 10.30 p.m., Netani Tinanitabua was walking along Drasa Avenue roundabout from the direction of the Anglican Church. He was just turning at the roundabout to proceed left towards Tavewa Avenue when his left foot touched a metallic street light column. Netani was electrocuted when his left foot came into contact with the live pole.

[2]. The plaintiff, Mitieli Seru, has filed a claim seeking damages on behalf of Netani's estate under the Law Reform (Miscellaneous Provisions)(Death and Interest) Act (Cap 27) and on behalf of Netani's surviving children under the Compensation to Relatives Act (Cap 29).

[3]. Initially, only the Lautoka City Council was named as defendant. However, on 7th June 2010, leave was granted to Chaudhary & Associates to add the Fiji Electricity Authority ("F.E.A") as second defendant. Thereafter, an amended statement of claim was filed on 21st June 2010.

[4]. The amended statement of claim meticulously sets out the basis on which the claim is made against both the Lautoka City Council and the F.E.A. As against F.E.A., paragraphs 4, 5, 6 and 7 plead as follows:

4.	THAT the 2nd defendant is a body corporate duly constituted under the provision of the ELECTRICITY ACT [CAP 180]. The functions and duties of the Authority pursuant to Section 13 of the Electricity Act are, inter alia, as follows: To manage and work any electrical installations transferred to the Authority and such other installations and apparatus as may be acquired by the Authority To establish, manage and work such electrical installations as the Authority may deem it expedient to establish
5.	THAT the Fiji Electricity Authority Network Division was at all material times responsible for carrying out streetlight installation, commissioning and maintenance work in the city of Lautoka and elsewhere in Fiji.
6.	THAT on or about the 1st day of March 2008 at about 10.30pm the deceased was a pedestrian on the Drasa Avenue roundabout in the city of Lautoka walking from the direction to the Anglican Church towards Tavewa Avenue when he touched a metallic street light column with his left foot and was electrocuted. The deceased died as a result.
7.	THE deceased was electrocuted as a result of the negligence of the 1st defendant, its servants and/or agents and/or the 2nd defendant, its servants and/or agents.

[5]. It appears to be common ground between the parties during the hearing of the application that the F.E.A is responsible for installing all streetlights and did in fact install the particular streetlight in question in this case. This is admitted in paragraph 14 of the submissions filed on behalf of F.E.A – even though, paragraph 5 of F.E.A's defence appears to deny this.

[6]. It is common ground also that the Lautoka City Council is responsible for maintaining all streetlights installed by F.E.A. In paragraph 3 of Lautoka City Council's statement of defence to the amended statement of claim is a concession that Lautoka City Council "has certain duties in respect of street lights equipment which it owns as a local government body..".

[7]. What is not clear – and this will be the main issue between the defendants at trial – is what and who caused the metallic pole to become "live" as it did on the day in question – leading to the electrocution and subsequent death of Netani. Was all this caused by poor maintenance on the part of the 1st defendant or poor installation on the part of the 2nd defendant.

[8]. Apparently, F.E.A did cause an internal investigation to be conducted by a Mr. Jese Dautei (Electrical Installation Inspector (W) shortly after the accident. Dautei's memorandum outlining his findings and which was addressed to the Installation Inspection Coordinator (W/N) is dated 27th March 2007. The content of the report clearly relate to the 01st March 2008 incident.

[9]. The Dautei memorandum outlines the tests that F.E.A carried out to determine the cause of electrocution and, in particular, the voltage on and around the pole in question. His findings are reproduced below:

We also removed the cables from the streetlight pole to check if there was any damage to the cable. Thus we found that the joint on the neutral cable near the light fitting was exposed on its end. The joint was not taped properly. This neutral cable was active as it was wrongly connected as mentioned below.

We also inspected the underground joints for the streetlight and one of the joints was incorrectly connected as shown in Figure 4 below i.e Active wire (Red) connected to Neutral wire (Black).

The underground joints were found at a depth of about 3 feet whereby we had to use a digger to find it. We found that the cable were of double insulated TPS without conduits. The council had hired different contractors to maintain their streetlights. The underground cablings is done by Time electric and the repairing of overhead street lights is being maintained by Electrical solution.

The joints must have been done many years ago. This is determined by the type of joints made which is done by using the raisin solution flux and lead soldering core. Whilst the new joints that are used now are made in a Scotch Cast joint boxex filled with compound installed at 18 inches in depth.

This caused the Neutral cable which was not taped properly to be energized. Since it was also touching the body of the pole it also enrgised the whole pole causing it to come alive.

We also found that the streetlights were protected by a porcelain fuse which was wired up with copper wires for fuse wires as protection.

CONCLUSION

The streetlight underground connection was made many years back and because it was directly connected to the streetlight connector without any joints. It was safe, period! Until they decided to change the old fitting for a new one. The new fitting is longer that the old one whereby they had to joint the cables to reach the connector within the fitting. The joint on the neutral cable was taped and must have worn out during the continuers digging that was done by other companies that have their pipes and cables running close to the streetlight pole thus causing the cables to be pulled and the PVC tape to wear (sic) out thus exposing the tip of the neutral cable and causing it to touch the inside of the pole causing it to be energised.

The wrong connection of the underground cable and the exposed joint touching the inside of the streetlight pole was the cause of the streetlight pole being energized thus causing death to anyone touching the pole and not wearing shoes.

......................................

Jese Dautei

Electrical Installation Inspector (W)

[10]. A copy of Dautei's memorandum was annexed to another report by one A. Kamikamica, Chief Installation Inspector. The Kamikamica Report (together with the Dautei memorandum annexed to it) was to emerge in Seru's affidavit filed in support of the application for leave to add F.E.A as defendant. The conclusion in the Kamikamica Report is as follows:

We conclude that the Fiji Electricity Authority Network Division carried out proper work at the first instance the accident would not have happened and in doing so Fiji Electricity Authority has breached Section 63 of the Electricity Act Cap 180.

____________________

1. Kamikamica

Chief Installation Inspector

[11]. It is the above Report which prompted Lautoka City Council (1st defendant) to apply to strike out the claim under Order 18 Rule 18 of the High Court Rules 1988 on the ground that it is frivolous or vexatious, that it may prejudice, embarrass or delay the fair trial of the action, or that it is otherwise an abuse of process of the court. The application is supported by the affidavit of Ganeshwar Rao who is the Acting Chief Executive Officer of Lautoka City Council.

[12]. Mr. Mishra argued for Lautoka City Council that the Kakikamica Report amounts to a concession on the part of F.E.A as to liability. This means that the plaintiff cannot sustain a cause of action against the Lautoka City Council.

[13]. Mr. Prasad submitted that the Kamikamica Report is highly contested on its merits. He was not even on site to inspect the pole in question. In addition, it is not consistent with what Mr. Dautei had stated in his memorandum based on Mr. Dautei's on site inspection.

[14]. Mr. Chaudhary highlights that paragraph 7 of the amended statement of claim (see paragraph 4 above) actually maintains a claim against both defendants.

[15]. He stresses also that he will rely on the doctrine of res ipsa loquitur at the trial of this case if it becomes difficult to establish which of the two defendants should pick up the tab so to speak on his client's case. In Fiji, it appears to be now settled that the doctrine does not have to be pleaded to be applied by the courts (see Ali v Ali [2009] FJCA 41; ABU0029.2006 (3 December 2009).

[16]. In a striking out application under Order 18 Rule 18 (1)(a), the Court will assume as factually true all the allegations in the claim. If the pleaded facts do raise a legal issue, then the courts will not strike out a pleading. The principle that emerges from accumulated case law material on this point is that – a claim is only to be struck out as a last resort and only in cases which are obviously unsustainable on the facts pleaded.
[17]. In this case, although the Kamikamica Report (which appears to have emanated from the annals of F.E.A and a copy of which somehow found its way into Mr. Chaudhary's custody) does tend to implicate F.E.A – it would be against principle for this court to consider it in the striking out application. After all – it is a piece of evidence which has to be tested at trial. And after all, the principles oblige me only to look at the facts as pleaded.

[18]. I do not think that the plaintiff's claim against both the Lautoka City Council and the F.E.A falls into the above category. There is a sustainable cause of action against both defendants on the facts pleaded.

[19]. Accordingly, I shall dismiss the 1st defendant's application with costs in favour of the plaintiff only which I summarily assess at $450-00 (four hundred and fifty dollars).

[20]. I will record here that whilst Mr. Awash Prasad's participation for and on behalf of F.E.A in opposing the Lautoka City Council's striking out application was most helpful in highlighting the issues between the two defendants, his costs will have to be costs in the cause.

[21]. Case adjourned to 15th April 2011 for further pre-trial directions.

........................................
Anare Tuilevuka
Master

At Lautoka
01st of April 2011