Kiboi v Ministry of Line and Phoenix [2020] KIHC 39; Civil Case 49 of 2014 (21 December 2020)

IN THE HIGH COURT OF KIRIBATI 2019

CIVIL CASE NO. 49 OF 2014

[RITERI KIBOI PLAINTIFF
[
BETWEEN [AND
[
[ATTORNEY-GENERAL IN RESPECT OF
[MINISTRY OF LINE AND PHOENIX DEFENDANT

Before: The Hon Chief Justice Sir John Muria

29 July 2020

Mr Banuera Berina for Plaintiff
Mr Monoo Mweretaka for Defendant

JUDGMENT

Muria, CJ: By a writ issued on 9 June 2014 the plaintiff claims damages against the defendant for loss suffered arising out of a fire that burnt his house together with most of his properties and chattels in the house. The value of the items destroyed by fire was $58,725.00. The defendant denies the plaintiff’s claim.

Brief background

2. The plaintiff was the Senior Lands Surveyor stationed at Kiritimati Island since 2001. As a government employee, the defendant provided the plaintiff and his family with a D Grade House at a fortnightly rent of $11.54 which the plaintiff had been paying. The house was not a new house.

3. On 3 June 2013, the plaintiff’s house was completely burnt down by fire, destroying his properties and chattels. The estimated value of the plaintiff’s items destroyed was $58,725.00.

4. The trial in this case started in Kiritimati Island and concluded here in South Tarawa. Both parties sought and were granted permission to call additional witnesses. However, at the trial, the plaintiff called two witnesses and the defendant also called two witnesses.

5. On 29 July 2020, the Court adjourned this case for the parties to do written submissions and submit them by 12 August 2020. On
14 October 2020, the plaintiff filed his submission. By a cover letter from Counsel for the plaintiff, the Counsel for the defendant was notified of the need to file the defendant’s submission and to exchange a copy of the same with Counsel for the plaintiff. At the time of preparing this judgment, no submission from the defendant was filed.

6. The Court has decided to do the judgment despite the default by the defendant to do their submission. In any case the defendant’s case as shown by the defence and evidence before the Court is pivoted on three fronts. First, the defendant denied being negligent. Secondly, the defendant pleaded sections 5, 7 and 8 of the Government Liability Act. Thirdly, the defendant’s case is that the fire was caused by a kerosene stove left burning in the house by the plaintiff.

7. In the end, only the defendant’s defence that the fire was caused by a kerosene stove stands to be considered. Since the plaintiff withdrew his case based on negligence, the other related matters raised by the defence are no longer necessary to be considered.

Plaintiff’s Case

8. The plaintiff originally brought his claim in tort and contract against the defendant. The defendant pleaded the Government Liability Act 2010, in particular sections 5(1)(b), (c), and (4), 7 and 8. Clearly faced with section 7 of the Act, the plaintiff abandoned his claim based on tort of negligence. He now only pursues his claim in contract.

9. It is the plaintiff’s case that the defendant had breached its contractual obligation to provide a house and to ensure that it is safe and free from such risks as fire caused by electrical faults. The house allocated to the plaintiff, in this case, was said to be an old house and that the faulty wiring system done in the house caused electrical sparks which in turn caused the fire that burnt the house.

Defendant’s case

10. The defendant’s case, as pleaded in their Defence, is that the fire that burnt the plaintiff’s house was caused by a kerosene stove. It is claimed by the defendant that the plaintiff left his kerosene stove burning and unattended to at the time of the incident.

11. With regard to the plaintiff’s claim that the house had faulty electrical wiring, the defendant said that they had done everything necessary to ensure that the electrical wirings were safe and sound. The defendant denies any faulty electrical wirings in the plaintiff’s house.

Issues

12. In the light of the evidence and the case presented to the Court by the parties in their claim and defence, together with the arguments, there are a number of issues to be determined. The first is to determine what caused the fire. Was it caused by the kerosene stove or electrical fault?

13. The second issue is to determine who is responsible for the fire and the subsequent loss caused to the plaintiff. Thirdly, was there a breach of contractual duty by the defendant? Fourthly, is the plaintiff entitled to damages in the amount of $58,725.00?

Consideration

14. There is no dispute in this case that the defendant employed the plaintiff and stationed at Kiritimati Island. The defendant provided the subject house to the plaintiff. The house caught fire and burnt down completely, destroying the plaintiff’s properties and chattels. There is also no dispute that the plaintiff was away at work when the house caught fire.

15. The plaintiff gave oral evidence at the trial. He also relied on his two sworn affidavits filed in support of his case. There are a number of matters included in his affidavits which are matters of opinion and argument. No objections had been taken by the defendant on those objectionable parts of the plaintiff’s affidavit. Nevertheless, the Court cannot allow the plaintiff to rely on those parts of his affidavits which are opinionative or argumentative. Equally, the affidavits of the defendant’s witnesses also contain opinionative or argumentative parts. No objection either was taken of those parts. The Court, in its discretion, will allow the affidavits into evidence except for those objectionable parts.

16. The law on affidavit evidence is fairly clear to all legal practitioners who are usually the ones who prepare their clients’ or witnesses’ affidavits. It is trite law that affidavits must only set out facts and not opinions or arguments or submissions. The only exception to that rule is the evidence of an expert who is permitted to give his opinion on a matter in which he is an expert. I urge legal practitioners to take heed of the rules on affidavit evidence so as not to bring the practice of the law and the administration of justice into disrepute.

17. Having said all that, I turn to the factual evidence as presented to the Court in order to answer the issues posed in this case. The plaintiff’s evidence is that by virtue of his employment, he was allocated a D Grade house in Kiritimati Island at a rent of $11.54 a fortnight. The house was not new and was allocated to him in 2001.

18. In his evidence in his affidavit of 16 November 2015 the plaintiff further stated that his house previously experienced electrical problems. During one night in 2011, the wirings in the house caused electrical sparks. He reported the matter immediately that same night and one Tematang Taureta who was an electrician at Kiritimati Island Power House, came to the plaintiff’s house to attend to the problem. It appears from the evidence both from the plaintiff and Tematang that Tematang did not do anything that night. The plaintiff stated that the electrician came back the next morning to fix the electrical problem. That was also confirmed by Tematang himself in his affidavit evidence.

19. The plaintiff’s evidence is that Tematang came back the next day to the house. Upon inspection he saw a naked wire. Again Tematang confirms that in his affidavit of 19 September 2014 where he says at paragraphs 5 and 6:

“5. I recall that some time in 2011, I was called by the plaintiff to fix his electricity. When I arrived it was night, the plaintiff was the one who informed or showed me the problem. I did not see the problem but all that I was told was that there was a short (lightning) to the wire and as a result, they (house members) turned off the main switch.

6. The following day, I came back and inspected the line that they alleged to be the problem. There I saw a naked wire that look to be burned I then cut the said wire and install another circuit breaker but this time I installed it to the main line”.
   

20. Tematang did not say what he did to the naked wire after he cut it. He simply said “I then cut the said wire and installed another circuit breaker” to the main line. What did he do with the naked wire that he cut? It was the plaintiff who stated in his affidavit evidence that “the next morning he (Tematang) came and cut some wires and reconnected them”. That was the temporary nature of the work which the plaintiff said the electrician did. Tematang himself confirmed to the police that the work he did on the plaintiff’s electrical complaint was temporary.

21. Following the temporary repair work done to the plaintiff’s house on his electrical complaint, the plaintiff made a report on the same day as instructed by Tematang. The plaintiff stated in paragraph 11 of his affidavit:

“He did come during the night we saw the electricity sparks and separated the live wires which stopped the sparks. The next morning he came and cut some wires and reconnected them. It was the next morning that he told me to file a report so that an overall could be carried out to the wiring in my house but he never came back although I did file a report on the same day”.

22. Interestingly, Tematang denied asking the plaintiff to file a report so that an ‘overall’ work could be carried out on the wiring of the plaintiff’s house. Yet he confirmed that what he did to the wiring in the plaintiff’s house was only temporary. In fact, a report attached to the plaintiff’s affidavit from the Crime Investigation Division confirmed that the electrical technician (Tematang) gave his statement to the investigation police officer and said that he temporarily fixed the wiring and asked the plaintiff to make a report so that permanent work could be done to the wiring in the plaintiff’s house. The plaintiff’s evidence is a lot more plausible than that of Tematang on this part of the story of the electrical problem at the plaintiff’s house.

23. Ioteba Bio is an Approved Contractor under the Public Utilities Ordinance and certified to run, fix or install any wires, materials or apparatus for conveying, transmitting, controlling or using electricity. He obtained his training at the Vocational Training Unit in Betio in 1972 and entered for the New Zealand Trade Certification Board’s 1^st Qualifying Electoral Examination. He also attended training in New Zealand Central Institute of Technology and obtained Certificate in Medical Engineering. He has been working as an electrician for over 40 years. On the evidence, I am convinced that the Court can safely regard him as an Expert electrician.

24. Mr Bio swore an affidavit in which he categorically castigated the affidavit evidence of Tematang and what Timon Iuta (the Electrical Superintendent of Kiritimati Power Generation) said in his affidavit. Timon Iuta, although swore an affidavit, was never called to give evidence. His affidavit is therefore of no use in this case.

25. Commenting on the plaintiff’s story that the electrical lightning or sparks stopped when the main switch was turned off, Mr Bio stated that the electric sparks did not come from the power source or generator. He said in such a case the sparks were caused by live wires coming into contact with each other and the live wires must have been connected to the main switch. That was why the problem stopped when the main switch was put off.

26. With regard to the installation of the second circuit breaker,
Mr Bio stated that the installation of the second circuit breaker could not solve the problem because the problem of electric sparks did not originate from the power source. The sparks started from the live wires that ran from the main switch. He said that all that Tematang did was to cut the burnt wires and then reconnected them to the circuit breaker.

27. As to the earth wire, Mr Bio said that Tematang diminished the importance of an earth wire. He said that the statement by Tematang in paragraph 10 of his affidavit, that “if the earth wire fails or default, the system will revert back to the circuit breaker” is unfortunate especially coming from an electrician whose job is to maintain electrical safety to houses in Kiritimati Island. Mr Bio stated that the earth wire’s function is different from that of the circuit breaker in a wiring system. An earth wire is vitally important to be installed, since the circuit breaker will not trip in the absence of an earth wire when two live wires come into contact with each other causing electric sparks.

28. In his opinion, Mr Bio stated that the temporary work done by the electrician did not resolve the defects in the wiring in the plaintiff’s house permanently. He expressed his opinion as follows:

“In my opinion the cables in the house must be very old and in need of replacement. The need to replace the cables should have been apparent when the electrical wires became live and produced electrical sparks. The person called to fix the problem should have been worried about two things:-

1. The conditions of the cables in the house.
2. The failure of the circuit breaker to trip when the sparks occurred.
   

The repair he carried out could not have solved the problem on a permanent basis because he did not carry out a thorough check on all the wires in the house to see whether or not any of them had become live or exposed. When two wires had become naked, and in this case most likely from age, there was a high possibility that there were other wires in the house in need of replacement as well. This could only have been discovered by a thorough check of all the wires in the house.

It is therefore safe to say that what the electrician did was fix the problem to the wiring in the house on a temporary basis. He only fixed the problem to the live wires that produced lightning which resulted in his assistance being required. He did not check the condition of the other wires in the house to enable him to solve the problem permanently.

Another cause for concern is the failure by the electrician to see that the problem did not happen again by investigating the reason why the circuit breaker did not trip. Had he done so he would have discovered a faulty wiring system. In this case as he did not appreciate the function of an earth wire he did not take any step to ensure the earth wire was installed and that it was functioning properly. As such he left the house in danger because if other live wires come in contact again, undetected especially at day time, the sparks would continue uninterrupted, as the circuit breaker would not trip, and fire would certainly result.

In the circumstances I am of the opinion, in the absence of any other cause, that live wires in the house must have come in contact again, producing electrical sparks which must have worsened as they went on uninterrupted, as they were not detected or seen, until the house caught fire. The fire was caused by a faulty wiring system. Had the earth wire worked properly it would have sent a signal to the circuit breaker causing it to trip and prevent the fire that destroyed the house and the belongings of the Plaintiff”.

29. I have already referred to parts of the evidence of Tematang Taureta on behalf of the defendant. He agreed he was the electrician called by the plaintiff in 2011 at night to come to the plaintiff’s house to fix an electrical problem. He agreed that what he did was only temporary. He agreed that he did not return to do further wiring work on the plaintiff’s house, since he felt that there is no need to do so because “the wiring were all okay”. However, according to the plaintiff’s expert witness, Mr Bio, the wiring in the plaintiff’s house was not all OK.

30. The defendant’s evidence came from Ramiteti Tawati and Tematang Taureta. Ramiteti was the Detective Senior Constable who attended the scene of fire at the time. Tematang was the Electrician who did the temporary work on the wiring at the plaintiff’s house in 2011 when the plaintiff complained about the electrical sparks coming out from the wirings in his house.

31. The defendant relied on the evidence of Detective Senior Constable Ramiteti to buttress its case that the fire was caused by the kerosene stove left burning in the plaintiff’s house. However, the Detective’s story about the kerosene stove was largely hearsay. None of the persons he interviewed could point to the kerosene stove as the cause of the fire. The Detective said that a woman ‘thought’ that the fire came from the kerosene stove and that she yelled out to others that the kerosene stove was on fire. Unless that woman was called to give evidence and gave evidence, the suggestion by the Detective that the fire caused by the kerosene stove is hearsay. It has no value in this case.

32. The Detective then went on to express his opinion based on the statements of the defendant’s witnesses. He stated that the electricity in the plaintiff’s house was ‘okay’ because the plaintiff’s house had two circuit breakers and that the wiring was maintained only a year or two before the incident. The witness is a police officer and unless he laid down the basis for his expert opinion in electricity matters, the Court cannot accept his opinion. In this case, his opinion as to the status of the electrical wiring in the plaintiff’s house is rejected.

33. In the Court’s view, the only real value of Ramiteti’s evidence is the fact that he attended the scene of the fire and took photos (“A1” and “A2”) of the scene. The photos taken by Detective Ramiteti clearly confirmed the plaintiff’s evidence that the kerosene stove and the wooden oven remained intact despite the fire engulfing the entire house. That can only suggest that the fire started elsewhere and not where the kerosene stove and the wooden oven were.

34. As to the evidence of Tematang, I have already referred to parts of it earlier in this judgment. Apart from those parts of his evidence which I have already referred to I need only add that I have great difficulty in accepting his evidence. He knew the plaintiff’s house was in serious need of proper wiring. He knew the incident in 2011 of live naked wires causing electrical sparks in the plaintiff’s house. He knew he only did a temporary job of fixing what had happened to the electrical wiring in the plaintiff’s house. He knew of the need to have the wiring in the plaintiff’s house properly done. He knew that he told the plaintiff to report the matter but he deliberately denied asking the plaintiff to make the report. He would want to have the Court believe that he had satisfactorily fixed the electrical problem in the plaintiff’s house in 2011. Unfortunately, I find his evidence with all the hallmarks of insincerity and lacking seriousness for the reasons just described.

35. The employer’s obligations to his employees include ensuring that the housing provided is habitable and free from risks such as fire risks. Tematang’s job as an electrician was to ensure that the employer’s (respondent) obligation of providing housing which was safe and free from risks of fire. I find on the evidence that the work approach taken by the electrician, Tematang, towards fixing the electrical problem in the plaintiff’s house very casual, lacking in seriousness and unsafe. Risks associated with electrical faults and electrical wiring are too serious to be ignored or be complacent about.

Conclusion

36. I find on the evidence before the Court that the house allocated to the plaintiff was old and in need of proper maintenance on its electrical wirings. I find on the evidence that in 2011 the house experienced electrical lightning or sparks caused by live naked wires. The technician only temporarily fixed the problem and never went back to the house to properly fix it as he was supposed to have done. I find that in such circumstances, the plaintiff’s house had been exposed to risks of fire, such as the one that occurred in this case.

37. I find on the evidence that the claim by the defendant that the fire which burnt down the plaintiff’s house was caused by a burning kerosene stove cannot be supported. The kerosene stove and the oven remained intact despite the fire. It is rejected.

38. The onus is on the plaintiff to establish his case on the balance of probability. That I find the plaintiff has done.

39. By providing the plaintiff with a housing which was seriously exposed to electrical risks associated with its electrical wiring system was a breach of the defendant’s contractual duty to provide the plaintiff with housing that was safe and free from risks of fire. I find that the plaintiff has succeeded in showing, on the balance of probability, that the defendant has breached its contractual duty of providing safe housing to him and his family. In all probability, I find on the evidence that the fire which burnt the plaintiff’s house in this case was very likely to have been caused and did cause by faulty electrical wiring which exposed the house to serious fire risks. This is not a case of a “remote or fanciful” possibility as found in Jin Yin company Ltd –v- Progressive Insurance Company Ltd [2002] WSSC 6 (22 March 2002). Judgment is entered for the plaintiff on liability.

40. With regard to damages, I agree with Mr Berina that the amount claimed by the plaintiff does not seem to be much of a dispute about it. The plaintiff’s claim is for the amount of $58,725.00. The Court therefore awards the plaintiff the sum of $58,725.00.

41. The plaintiff also claims general damages for inconvenience suffered. There is evidence before the Court that the plaintiff had suffered, not only loss, but inconvenience as a result of the incident. The principles to be applied when granting general damages in a case of this nature have been well established in the cases decided by the Courts in Kiribati. I feel the plaintiff is entitled to general damages. I grant general damages to the plaintiff in the sum of $5,000.00.

42. The plaintiff is entitled, as of right, to interest on the judgment sum. The plaintiff shall have interest at 6% per annum on the judgment sum until paid in full.

43. The plaintiff shall have his costs of the action to be taxed if not agreed.

Dated the 21^st day of December 2020

SIR JOHN MURIA
Chief Justice