Koim v PNG Electricity Commission [1997] PGNC 66; N1576 (30 May 1997)

Unreported National Court Decisions

N1576

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. NO. 681 OF 1994
BETWEEN
NIMB KOIM - Plaintiff
And
PNG ELECTRICITY COMMISSION - Defendant

Mount Hagen

Injia J
18 November 1996
30 May 1997

NEGLIGENCE - Breach of statutory duty - Failure of Electricity Commission to inspect and rectify electrical fault - Fault located on installation within consumer’s premises - Fault not properly reported by proper “consumer” to Commission - Unrectified fault resulting in electrocution of visitor to premises - Whether Commission liable - Electricity Commission Act (Ch. No. 78), SS. 35, 59, Electricity Commission (Conditions of Supply) By-Laws, (Ch. No. 78), SS. 38, 44.

Cases Cited:

No cases are cited in the judgment.

Counsel:

D Kwimberi for the Plaintiff

P Peraki for the Defendant

30 May 1997

INJIA, J: The Plaintiff brings this action on behalf of himself and the customary dependants of the late Kapog Koim who died on 29/2/92 after she was electrocuted at the residential premises situated on Allotment 15 & 16, (consolidated) Section 10, Kagamuga, Western Highlands Province.

In the Statement of Claim endorsed, the Plaintiff claims that the Defendant was negligent in attending to an electrical fault on the premises which caused a free flow of electricity current into the water tank situated outside the house. The Plaintiff claims the fault was reported to the Defendant on three occasions at the Defendant’s office in Mount Hagen but the Defendant’s officers neglected or wilfully defaulted in attending to the complaint thereby causing the electrical current to continue to freely flow into the water tank thereby exposing the occupants and visitors to the premises to risk of electrocution. The Plaintiff claims the deceased was electrocuted when she entered the premises and opened the tap to take a drink. The relevant facts and particulars of negligence pleaded in the Statement of Claim are set out in para. 6-10 of the Statement of Claim which are as follows:

“6. On 29 February 1992 and at all material times, due to a default, defect or irregularity of the electricity supply to the premises situated at Allotment 15 and 16 Section 10, Kagamuga, electricity was found to be flowing through a water pipe near the house.

7. On 20th February 1992 and two previous occasions, the Defendant’s office at Mt. Hagen was informed of the electricity that was flowing through the water pipe and were requested to inspect the premises to rectify the default. The Defendant’s agents and or employees did not turn up to rectify the fact until after 29th February 1992.

8. On Saturday 29 February 1992 the deceased, Kapug Koim, who was lawfully in the premises described as Allotment 15 and 16 (consolidated) Section 10, was electrocuted when she came into contact with the metal water tap to have a drink of water from the tap.

9. The death referred to in paragraph 6 was caused as a result of the negligence on the part of the Defendant.

Particulars of negligence

The Defendant’s employees, servants and or agents:

(a) Failed to disconnect or rectify faulty installation at allotment 15 and 16 Section 10, Kagamuga, when they knew and ought to have known free flow of electricity through the water pipe.

(b) Wilfully neglected their duties in allowing electricity to flow through a water tap when they knew or ought to have known the danger it posed to persons that may be on the premises.

(c) Failed to take steps to alleviate the risk created by the free flowing electricity.

(d) Wilfully defaulted in:

(i) delaying the disconnection of the electricity current.

(ii) rectifying the interruption of electricity.

(iii) failing to ascertain the fault or defect by way of an inspection.

10. As a result of the negligent actions of the Defendant, the deceased died after being electrocuted.”

The Defendant denies the claim in particular, the particulars of negligence or wilful default pleaded. The Defendant says the fault was not correctly identified and properly reported to its officers, that the consumer did not co-operate with the Defendant’s officers when they attended at the house to inspect the installation on two occasions by locking the gate, that the fault occurred in the installation within the premises for which the Defendant had no control, that the consumer failed to eliminate the risk by taking self-help measures such as switching off the main switch and put up signs in the house warning visitors of the risk.

Evidence was called by both sides. The Plaintiff’s evidence comprise of the following:

1. Nimb Koim - affidavit sworn on 4 November 1996 (Exhibit “A”).

2. Dr W Seta - affidavit sworn on 10 April 1995 (Exhibit “B”).

3. Polti Mapa - oral evidence and affidavit sworn on 24 October 1995 (Exhibit “C”).

4. Peter Konts - oral evidence and affidavit sworn on 24 October 1995 (Exhibit “D”).

5. Bras Raim - oral evidence and affidavit sworn on 13 November 1995 (Exhibit “E”).

The evidence from the defence is as follows:

1. Ms Sabina Wandaki - oral evidence and affidavit sworn on 23 October 1996 (Exhibit “F”).

2. Henry Bre - oral evidence and affidavit sworn on 30 October 1996 (Exhibit “G”).

3. Karo Veau - oral evidence and affidavit sworn on 18 October 1996 (Exhibit “H”).

The following facts are not in dispute. There are four (4) residential houses situated on Allotment 15 and 16, (consolidated), Section 10, Kagamuga. On or about the 29 February 1992, the property was owned by a company called Lae Builders. At some stage it was previously owned by by Hastings Deering Company. The electrical fault causing the electrocution of the deceased occurred in house No. 3 situated on Allotment 16. Peter Konts was a care-taker security guard employed by Lae Builders to look after house No. 3 which was unoccupied at that time. Peter Konts had moved into the house with his family of a wife and children. By the time the incident occurred, Peter Konts had lived in this house for 9 months. At that time, Lae Builders had re-located business to Lae and the property was managed by the Professionals Real Estate company. The property was fenced and it had a gate.

Bras Raim was the occupant of House No. 1 situated on Allotment 16. He was also another security guard employed by Lae Builders to occupy the house as a care-taker. By the time of the incidence, he had lived in this house for two and the half (2 1/2) years.

All the occupants of the four (4) houses used a water tank built next to the house Peter Konts occupied. This tank was used by the occupants of the four (4) houses as well as by visitors and the village people living in the area.

Both Peter Konts and Bras Raim are uneducated ordinary villagers. Both Peter Konts and Bras Raim detected electrical current flowing through the water tank tap when they tried to take a drink in early February 1992. So Peter removed the water tap from the tank by using a stone to “break” the tap in an attempt to stop people from using the tank.

In February 1992, many people living in the compound were made aware of the electrical fault so they took precautionary measures in avoiding contact with the water tank. But neither Peter Konts nor Bras Raim erected any warning sign or fencing to warn visitors or the villagers in the community using the tank, warning them of the danger.

As ordinary villagers, both Peter Konts and Bras Raim were unaware of the cause of the electrical fault. Peter Konts was scared and even not prepared to touch the main switchboard to put off the main switch because he feared electricity might be flowing through the switchboard as well.

Both Peter Konts and Bras Raim said they reported the electrical fault to the Defendant’s officers at their Mount Hagen office. As there is a dispute as to the nature of the report and the actions taken by the Defendant’s officers in attending to the report, I will deal with the evidence in detail and make findings of fact later.

On 29 February 1992, during the day the deceased and Mrs Polti Mapa arrived at Peter Konts house after visiting a friend at Kagamuga Community School. Peter Konts is from the same Balk village as them. The gate to the house was open. The tap was also open and water was freely flowing. This was the first time Polti Mara went to that house. Before this, Peter Kont never mentioned anything about the electrical fault when he came to Balk village. As both of them were very thirsty, they decided to stop at Peter Konts’ house to take a drink. The deceased decided to take a drink first from the water running from the tap. As soon as she held the pipe and was just about to drink, she was electrocuted. She died instantly.

The electrocution of the deceased was reported to the Defendant’s office in Mount Hagen. On 2 March 1992, Mr Henry Bre was informed of the electrocution. Mr Bre is an Installation Inspector with the Defendant’s office in Mount Hagen. He proceeded to the scene on the same day and inspected the fault. He was accompanied by the duty electrician Mr George Waim. On 6 March he compiled a report which is in evidence. Although there is no evidence of any report compiled by George Waim, the evidence of Karo Veau, Senior Technical Officer and Acting Consumer Services Engineer with the Defendant, confirms John Bre’s report. The pertinent part of their reports are re-produced below:

John Bre’s report dated 6/3/92:

“1. On Monday the 2nd of March 1992, the news of fatal Electric Shock was received from the after hours duty officers. We (H. Bre - Installation Inspector and George Waim - Duty Electrician) proceeded immediately to the site.

2. Site Report

2.1. The property was owned by Lae Builders and has a single phase supply, bulk metered for 2 x 250 Watts self ballast security lights and 4 x Low covenant houses. They are supplied through an ariel service line.

Location: Section 10 Allotment 16 near Kagamuga airport.

Installation No: DM32-1-54 Domestic

Meter No: EC 12959 (Seal No. EC 153)

History Card: Consumer - Warwick No. Sinclair

Reconnected on 3/10/90

2.2. The installation was very old with black tare/carbon deposits on walls and inside ceiling from kerosene stove. The only one circuit fuse board was mounted within a meter box outside its verandah. Two Power and one light circuit conductors were connected into it. A 2.5 mm² single copper wire was inserted into the receptacle as substitute for fuse wire. When meggered light circuit was shorted to earth.

2.3. When everyone were clear from the building, the installation was re-energised to determine the contacted voltage. The live roof test, measured 172 volts a.c. from roof, steel gutter, water storage tank and metallic water pipe to earth electrode.”

Mr Veau says in his affidavit:

“2. I am aware of a death arising out of an electrical shock on 29 February 1992 and have perused the Commission’s file on the incident and particularly the report of the Installation Inspector, Mr Henry Bre.

3. I agree with the opinion that the fatality was directly attributed to a fault on the light circuit which allowed a path of electricity to pass to the earthing conductor, earth stake and water pipes, all of which are bonded to the main earthing conductor.

4. Under normal circumstances, this situation would cause the fuse or circuit breaker on the switchboard to rupture disconnecting power supply. Unfortunately this fuse wire had been replaced with a piece of copper wire, which under normal circumstances cannot rupture, (i.e. disconnect the power supply in the event of a fault). Therefore, the conclusion reached in this matter is that an incorrect fuse was the direct contributing factor to this fatality.”

According to these reports, there were two electrical faults present in this installation - (1) the electrical light circuit fault. This may be treated as a normal fault. The electrical installation was designed to deal with this kind of fault internally. The fault would automatically disconnect electricity to the premises by the melting of the normal fuse wire. This was an in-built safety design. (2) Wrong fuse wire used. This is man-made fault caused by someone’s interference in the switchboard fuse wire. The placing of this wire allowed the electrical light circuit fault to remain unabated and caused the flow of electrical current to the, inter alia, water pipe and into the water tank.

There is no evidence as to who was responsible for interfering with the switchboard by placing a piece of copper wire as fuse wire. If that copper wire had not been placed, then the fault in the light circuit would have been self-contained in that the fuse or circuit breaker would have ruptured and disconnected the power supply to the premises automatically. It would then have become necessary for the consumer to seek a rectification of the circuit fault by the Defendant. As a result of the use of the copper fuse wire, electricity was allowed to flow through the earthing conductor, earth satellite and the water pipes.

The question arises as to whose duty it was for reporting, inspecting, detecting and rectifying these electrical faults. The answer to these questions depends on the construction of the relevant statute and by-laws.

The Plaintiff’s action is based on tort of negligence. The Plaintiff relies on a mixture of breach of general duty of care based on the common law principles as well as breach of statutory duty.

In my view, where there is express statutory provision prescribing statutory duty on the part of a statutory authority and liability for breach of that statutory duty, there is no room for importing the general duty of care founded on the common law principles: see Constitution, S. 59 (1), and Sch. 2.1. In the present case, the statutory duty of the Commission to attend to inspection and liability for any default thereof is specifically prescribed by statute and there is no need to resort to the common law principles on the general duty of care.

Electricity is a highly dangerous form of energy. The provision of electricity supply, its conditions of supply and installation and service to the public is a highly regulated area by statute, namely the Electricity Commission Act (Ch. No. 78) (hereinafter referred to as the “A”). There are a number of By-Laws and regulations passed under the Act. The relevant regulations or by-laws passed under that Act relevant for our purposes is the Electricity Commission (Conditions of Supply) By-laws (hereinafter referred to as the Conditions & Supply By-Laws) and the Electricity Commission (Service and Installation) By-Laws (hereinafter referred to as the Service and Installation By-Laws). Under the Act, the supply of electricity to the installation on a premises is the function of the Commission. The Commission’s responsibility for supply starts from the main installation fuse affixed to the main electricity pole which is the property of the Commission: S. 28 and 29 of Service and Installation By-laws. The metre-box situated on the installation is also the property of the Commission: S 32 of Service and Installation By-laws. The maintenance, use and operation of the installation inside the consumer’s premises is the responsibility of the consumer: S. 38 of Condition of Supply By-laws. It is the consumers responsibility to report all electrical faults on his premises to the Commission so that the Commission’s officers can inspect the premises and it is the Commission’s responsibility to carry out an inspection of the installation on the consumer’s premises. This is made clear by S. 35 of the Act which provide:

“35. Testing of works and supply on consumers’ premises.

(1) When required by a consumer and on payment by the consumer of the prescribed fee, an Inspector shall:

(a) test the variation of the voltage at the consumer’s terminals; or

(b) make such other inspection or testing of any service lines, apparatus and works on the consumer’s premises as is necessary for the purpose of determining whether:

(i) this Act; and

(ii) the conditions subject to which the supply of electricity is for the time being authorized, have been complied with.

(2) Where an inspection under Subsection (1) shows that a supplier of electricity is at fault, the supplier shall reimburse the consumer the fee paid by him.” (my underlining).

If upon inspection, the Commission is of the opinion that the consumer is using electricity in a matter that contravenes the Act and the by-laws and wiring rules, then it takes certain steps to rectify the situation: Sections 42 & 43 of the Conditions of supply By-laws which provides:

“42. Interference to supply.

(1) Notwithstanding anything in these By-laws, where the Commission is of opinion that a consumer is using electricity in a manner that:

(a) interferes with the supply to other consumers; or

(b) contravenes these By-laws or the Wiring Rules, the Commission may order the consumer to abate the interference or to comply with these By-laws or the Wiring Rules, as the case may be.

(2) Where the interference referred to in Subsection (1) is caused, in the opinion of the commission, by the neglect, omission or default of a consumer, the consumer causing it shall reimburse the Commission for the reasonable costs incurred by the Commission of rectifying the interference.

(3) Where a consumer fails to comply with an order given by the Commission under Subsection (2), the Commission may discontinue the supply of electricity to the consumer.

(4) The Commission is not liable for any loss or damage suffered by a consumer whose supply of electricity is discontinued under Subsection (3).

43. Default by consumer.

If a consumer commits a breach of these By-laws, the Commission may, in addition to and not in derogation of any other rights under these By-laws, discontinue his supply of electricity in respect of the installation in connexion with which the breach occurred or in respect of all his installations.”

It is an offence to alter the position or arrangement of any wire in an installation connected to the Commission’s main (S. 32, S. 34 (3) (a), (b) & (c) of Conditions of Supply By-law) which may result in disconnection of electricity to the premises under S. 42 and S. 43 of the Conditions of Supply By-laws.

The crucial question in this case is whether the “consumer” “required” the Commission to carry out an inspection of the installation on his premise so that appropriate action would have been taken by the Commission to rectify the fault. The reporting of the fault therefore is part and parcel of the “requiring” process. The other relevant related issues are: Who is a “consumer” within the meaning of the Act and By-laws? Who was the “consumer” in respect of the electricity supplied to Allotment 16, Section 10, House No. 3? Did the “consumer” require the Commission to inspect his installation by reporting the fault and paying the necessary fee? Did the Commission take steps to inspect the installation and rectify the fault in the premises?

The other issues relating to the safety measures taken or not taken by the “consumer” or occupants of the house, Mr Peter Konts, to warn visitors, etc. of the dangers inherent in his premises relates to the liability of the occupier of the premises. But the Plaintiff’s action is not based on occupier’s liability principles. In any case, the Commission is not an occupier of these premises. Also, the owner/occupier of the premises are not parties to these proceedings. So that issue does not arise for consideration.

In considering the nature and extent of the Commission’s liability for the negligent actions of its employees under the Act and By-Laws, S. 59 of the Act is relevant. Section 59 of the Act provides that the Commission is liable to pay compensation for “loss or damage...suffered by any person by reason of the exercise by or on behalf of the Commission...of a power conferred by or under this Act”. Section 44 of the Conditions of Supply By-Laws which is also relevant provides:

“44. Indemnity.

The Commission is not liable for any loss or damage, other than loss or damage occasioned by the wilful act or default of the Commission or its officers, occasioned by:

(a) a delay in connecting the consumer’s installation with the supply mains; or

(b) a failure or interruption of supply of electricity to an installation; or

(c) an irregularity of voltage of the electricity supply; or

(d) a fault or defect found in an installation after an inspection by an officer of the Commission.” (my underlining)

It is clear from these provisions that the Commission will only be liable for loss or damage resulting from a fault or defect found in an installation within the consumer’s premise where the fault or defect is occasioned by some “wilful act or default” committed after “an inspection has been carried out by an officer of the Commission”. An inspection of course, in respect of an installation within a premises, will not occur unless the Commission is so required by the consumer as provided by S. 35 of the Act. And under S. 35 (1) of the Act, the Commission is only duty-bound to act upon a request, upon the payment of a fee, by the consumer. Where the conditions of S. 35 (1) are not met by the consumer, there is strictly no legal duty on the part of the Commission to act upon a report or complaint in respect of an installation within the premises. The rationale under S. 44 (d) is that the Commission cannot be blankedly held liable for any damage or loss occurring as a result of a fault or defect on an installation within the consumer’s premises unless the Commission’s officer has attended to the inspection and he has wilfully done an act or wilfully defaulted in doing an act to rectify the fault or defect within the premises after being required to do so by the consumer under S. 35 of the Act.

Section 1 of Conditions of Supply By-laws defines a “consumer” as meaning a person to whom electricity is supplied by the Commission under those By-Laws. The “consumer” does not necessarily mean the user of electricity supplied to the premises, may he be an occupant of the premises or otherwise.

In the present case, the consumer of electricity according to the records held by the Commission, as evident from Mr John Bre’s report, which is not contested, is one Warwick N. Sinclair. It was Mr Sinclair who was supplied the electricity when electricity was re-connected to his premises on 3 October 1990.

If Mr Sinclair was not in occupation and use of the supply of electricity to his premises, then it was his duty to ensure that the electricity supplied to him was disconnected or if not, to ensure that the installation in his premises was properly used and the installation not interfered with. It seems he either failed to do so or that he arranged with Lae Builders or someone to continue to occupy the premises and use the supply of electricity under his name for some 9 months or so. According to Peter Konts, he is only a care-taker of the house. Although he had the benefit of the use of the electricity supply, he never paid the electricity bills because the bills were paid by the Lae Builders Company. Also Peter Konts is not a “consumer” within the statutory definition of that word. Therefore, he was under no statutory duty to “require” the Commission to inspect the installation and take remedial measures. Assuming Peter Konts and Bras Raim reported the fault correctly to the Defendant, they were not qualified under the Act to require an inspection. Alternatively, even if they were qualified by virtue of their “occupation/user” status, they had not paid the required fee to require an inspection by the Defendant.

In arriving at this conclusion, I am not for one moment suggesting that the Commission in emergency cases should not attend to faults or defects in an installation situated in a consumer’s premises. It may do so at the request of the consumer or user-occupant or even on its own volition once the emergency created by the fault is known to the Commission. Such duty is inherent given the broad functions, powers and duties entrusted by the Act. But the present case is one where the facts clearly show that the Commission cannot be held liable in law, in that:

1. The “consumer” on record had not taken any step to disconnect the supply to his premises when he vacated the premises.

2. The care-taker occupant of the house who used the electricity supply were not made known to the Commission; and yet the supposed “consumer” was still paying the electricity bills.

3. There was interference with the switchboard fuse wire by someone without the knowledge or approval of the Commission.

4. The defect or fault in the installation was there for some time without the proper “consumer” taking meaningful steps to notify the Commission of the exact nature of the fault or defect and “requiring” the Commission to inspect the installation and take remedial actions.

5. The Commission’s staff did not wilfully default in attending to the complaint, which they were legally not required to attend to.

The fifth (5th) point requires elaboration. The evidence on the reporting of the electrical fault and action take by the Defendant is as follows.

The Plaintiff’s evidence on this aspect was given by Peter Konts and Bras Raim. Peter Kont’s evidence in his affidavit is as follows:

“2. Sometimes in February 1992, I realised that power current flowing through the water pipe at the house so I removed the water tap to avoid my family and other people using the water tap because of the flow of the current.

3. I then approached an expatriate shop owner at Kagamuga to ring Elcom office in Mt. Hagen (which I did) and requested them to disconnect the current flowing through the water pipe and there was no response from the Elcom office.

4. I made a second attempt on 20th February 1992. I personally approached the Elcom Office here in Mount Hagen. I requested them to cut off the power current flowing through the water pipe.

5. The Elcom Manager at that time was from Mt. Hagen, so I spoke in Melpa language which the wife of the manager understood and requested for immediate removal of current flow from the water pipe.

6. The Elcom staff told us to go home and they would follow but did not come to the house.

7. The Elcom failed to disconnect the power so I warned my family not to go near the fault pipe.”

In cross examination Peter Konts said he did not report the fault to Lae Builders even though it was them who authorised him to look after the property and even though he knew Lae Builders were paying the electricity bills. The lady that she saw at the Elcom office was Ms William (Mrs Sabina Wandaki). He said he told her about broken service line and wirings about to fall down. When Mrs Wandaki told him to wait outside at the public car park for her whilst she went to make radio contact, he waited for a long time outside and she never returned to see him so he left without seeing her. They appeared to be busy going here and there. He didn’t give Mrs Wandaki the Section and Allotment number of the property because he “he didn’t know”. He maintained the mentioned the fault located at Lae Builders’ premises. He didn’t know anything about the wrong fuse wire and his duty to switch off the main switch because he was an ordinary villager. He maintained he reported the fault correctly but the Defendant’s officers did not take the report seriously. They never came to inspect the premises until when the deceased was electrocuted.

Bras Raim’s evidence in his affidavit is as follows:

“3. During February, 1992, I became aware of power flowing through water pipe in front of Peter Konts house and inform same to Peter Konts. I warned my family not to touch or even go near the fault water pipe.

4. Upon being aware of the electrical fault, Peter Konts and myself reported the fault to the Elcom office at Mount Hagen and they agreed to attend to it but failed to do so.

5. On several occasions Peter Konts did report the matter to the Elcom office by himself.

6. I was unsettled and restless because I had many children in my house and that I was scared that one of them might be electrocuted. I couldn’t wait for several days so I went myself to Elcom office Mount Hagen, and reported the matter again to Sabina Wandaki the Manager’s Secretary.

7. Mrs Wandaki, deals with queries, so she told me to go back home and wait and that she would sent the electrician to come to our yard.

8. Again no sign of the Elcom staff. We waited for two to three days and still no sign of Elcom staff so Peter and myself went to Basu Coffee store at Kagamuga and asked, the Manager the late Malcom to ring Elcom office at Mount Hagen. He called on our behalf and advised us to go back to our premises and wait because Elcom people would come. Still no sign of them.

9. Then on Saturday 29th February 1992, I was at the Kornfarm market. A boy by the name of Wakupa who works in my tavern came and told me that the deceased, Kapog Koim was electrocuted inside our premises, in front of Peter Kont’s house.”

In cross examination he denied suggestions that he did not go with Peter Konts to report the fault. He said he came with Peter Konts to the Defendant’s office 3 times and reported the fault.

On the Defendant’s part, Sabina Wandaki in her affidavit agreed that she “attended to on 20 February 1992 when a man called into our office querying about broken wirings and service lines about to fall down”. She made a report to her supervisor about the report in the form of a report. Her report which is in evidence reads:

“It was 1.30 pm on the 20/2/92 when a man called into our office querying about broken wirings and service lines about to fall down. I asked the customer (he) of the location and he told me that, it’s at Kagamuga Ex Hastings and Deerings.

I went straight to the radio and called our Dist. Sup. (Mr Dominic Heangre) and our Lines Crew but there was no respond. So I asked the Debtors Clerk (Mr Kuksy Aliabe) to continue on calling as I had plenty customers at the Counter so I had to come back and serve them. When I came back to inform the customer he was already gone.

Later I asked Kuksy whether he relayed the message to our Dist./Supt. or Lines Crew and Kuksy did confirmed to me that he told our Dist./Supt. (Mr Dominic Heangre).”

In cross examination, she said she explained the procedure for attending to complaints as follows. She writes down the query on the inquiry slip. She asks the customer of the nature of the inquiry, writes down the date, location, nature of query and referred it to the Distribution Superintendent or Lines Electrical group by normally going on the radio and relaying the message. Later she confirms whether action has been taken or not. That is what she did in this case. As she was busy cashiering, she passed the message to the Debtor’s Clerk to get the District Superintendent. Later she confirmed with the Debtors Clerk that she passed the message. But she was not sure if the complaint had been attended to.

Henry Bre explained the procedure for receiving and attending to complaints of electrical faults from an installation inspector’s perspective as follows: When we receive calls from customers or consumers concerning electrical faults, we normally proceed immediately to the sight of the post and we enter the premises. If the gate is open, if the people are there, and we check inside what goes wrong. We check at the switchboard and if the fault is apparent, e.g. fire or damaged electrical appliance, then we isolate or disconnect the faulty circuit and leave the others in place.

He was not the District Superintendent in February 1992 so he didn’t know who attended to the complaint at that time. He only investigated it after the electrocution of the deceased.

Karo Veau’s evidence in cross examination on this aspect is that he saw the inspections report on this matter prepared by “Dominic” prior to the deceased’s electrocution. According to “Dominic”, the former District Superintendent, (according to the report) he made attempt to locate the fault or installation. He wouldn’t be in a position to tell why “Dominic” was not called to give evidence.

That is the evidence from both sides on the reporting of the electrical fault and steps taken by the Defendant’s officers.

From the evidence for both sides, I find that Peter Konts and Bras Raim made some attempt, in their limited capacity to report the electrical fault at the Defendant’s office at Mt. Hagen. Their attempts can be best described as informal and in an hap-hazard manner. Their report lacked sufficient particularity and precision in material respects. On the part of the Defendant’s officers, I find that Mrs Sabina Wandaki ascertained the fault reported to them as “broken wiring and service lines about to fall down” and correctly ascertained the general location of the fault as being located at (-ex) Hasting Deering Compound at Kagamuga. According to the evidence, this is the same property owned by Lae Builders. I also find that the officers of the Commission including an inspector by the name of “Dominic” attempted to locate the fault. Given the nature of the report of the fault reported, I infer that they would have checked for and found nothing wrong with the service line or main power line as reported by Peter Konts and Bras Raim because the actual fault was located inside the installation in the premises. I accept the evidence of Peter Konts that no inspection was carried out by the Defendant on the installation inside the premises. I find that such inspection would only have occurred upon being required to do so by the “consumer” under S. 35 of the Act, which was not done. In any event, in all the circumstances, the actions taken by the staff of the Defendant in responding to the complaints by Peter Konts and Bras Raim did not amount to wilful act or default on the Commission’s part.

I would dismiss the Plaintiff’s action on the above basis alone. Even assuming that the Defendant owed a general duty of care to the “occupant-user or “consumer” to attend to the matter promptly and diligently, I still think the nature of the complaint received at the Defendant’s office was such that the Defendant was required to attend to faults beyond the parameters of its lawful duty. The Defendant’s responsibility ends where electricity is delivered to the consumer at the point where the service line meets the terminal supply points. The consumer is responsible for the installation on its premises and faults occurring therein.

For these reasons, I dismiss the Plaintiff’s claim with costs to the Defendant.

Lawyer for the Plaintiff: Paulus M Dowa Lawyers

Lawyer for the Defendant: Peraki Lawyers