Okevi v PNG Electricity Commission [2006] PGNC 63; N3074 (23 June 2006)

N3074

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1030 OF 2001

BETWEEN:

LITINA OKEVI
-Plaintiff-

AND:

PNG ELECTRICITY COMMISSION
-Defendant-

AND:

WS NO. 1079 OF 2001

BETWEEN:

HAUMEOTU IYAGUNI
for and on behalf of himself and his family
-Plaintiff-

AND:

PNG ELECTRICITY COMMISSION
-Defendant-

Waigani : Injia, DCJ.
2006 : June 23

TORT – NEGLIGENCE – Papua New Guinea Electricity Commission - Duty of Public Authority in charge of electricity (a dangerous thing) – Failed to conduct regular /routine inspection of power installations situated on public road reserve – Faulty Stay wire energized with electricity – Remained non inspected and non rectified for a long time – Two young boys electrocuted as a result – Breach of duty of care – Judgment entered for Plaintiffs – Electricity Commission Act, s.59, Electricity Commission (Conditions of Supply) By-Laws, s.44.Cases cited in the judgment:

Papua New Guinea cases:
Burns Philp v Maxine George [1983] PNGLR 55.
Nimb Koim v PNG Electricity Commission (1997) N1546.

Overseas Cases:
Buckland v Guilford Gas Light & Coke Co. [1999] 1 KB 410.
Donoghue v Stevensen [1932] A.C. 562
Moyle v Southern Electricity Board [1962] 1 Llyod’s Rep. 607.

Counsel:
A. Kwimberi, for the Plaintiffs
S. Kassman, for the Defendant

23 June, 2006

1. INJIA, DCJ: The trials of these two related actions were consolidated. The Plaintiffs in each matter represent the estate of two young boys who died from electrocution from a live stray electricity line at Badili at the same time on 12 July 1999. Both boys died at the scene of the electrocution at almost the same time. The Plaintiffs are the customary representative of the estate of the two deceased and they bring this action on behalf of their respective families under s.27 of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297)).

2. The Plaintiffs in their Statement of Claim allege that the Defendant was negligent in failing to attend to the faulty electricity line after it was reported. The Defendant denies it was negligent and pleaded contributory negligence. The main issue is whether death was caused by the negligent actions of the defendant.

1. Pleadings

3. Particulars of the relevant circumstances showing the incident and particulars of negligence as pleaded in the Amended Statement of Claim in WS 1030/01 are as follows:

"1. The Plaintiff is the father of the late Out Litina of Eastern Highlands Province, the deceased child the subject and in this is capable of bringing this action pursuant to s.27 of the Wrong (Miscellaneous Provisions) Act Chapter 297, on behalf of himself and his other immediate family members, whose names are listed in paragraph 18 herein below.

2. The Defendant is established by s.3 of the Electricity Commission Act Chapter 78 (‘enabling Act’) and, by virtue of s.4 of this enabling Act, is capable of being sued in its name and style.
   
3. At all material times, the deceased child lived with his parents and family at the Two Mile Hill Settlement, in the National Capital District where he was doing Grade 7, at the Kaugere Primary School.
   
4. At all material times, the Defendant had, pursuant to its enabling Act, the statutory function and duty to generate, supply and monitor electricity in Papua New Guinea. This function and duty necessarily involved putting up and maintaining electricity installations, such as electric or power poles and electric or power lines, and monitoring electricity flow on these lines.
   
5. On the 12 July 1999, at about 9:00am, the decease child was playing with three playmates in small pool of water when he was electrocuted by a live broken electric or power line that was lying by the pool, and he died instantly.
   
6. The live broken electric or power line that caused the electrocution and subsequent death of the deceased child was the property of, or was under the control and management of, the Defendant and therefore, was the responsibility of the Defendant.
   
7. The existence of the ‘live wire’ (power line) was identified and reported to the Defendant’s office, at Gerehu (Elcom base) on the 8th July 1999 and then followed up again on 9th July 1999.
   
8. The Defendant and its servants despite being informed of the existence of the live wire, as referred to in paragraph 7 above, failed to attend and fix it but they left it for the weekend.
   
9. On Sunday night (11th July, 1999) it rained heavily until the next day Monday morning (12/07/99), causing the build up of the water in a drain where the live wire was exposed to.
   
10. The deceased and his playmates without being aware of the existence of the live wire on Monday 12th July 2002 were playing in the water, trying to catch small fish and prongs as they usually do, when he was electrocuted.
    
11. The deceased died instantly and his body was hanging on the live wire when the Defendant and the police attended at the scene and removed the body.
    
12. The deceased child would not have died if the Defendant had swiftly responded to the urgent request from Mr. Ken Rapila to come and fix up the faulty loose wire on the 8th July 1999, and again on the 9th July, 1999. The deceased child died due to the wrongful neglect of the Defendant.
    

Particulars of (Wrongful) Negligence:

The Defendant, by its servants, was negligent in that it:

(a) despite being informed of the existence of the live wire, allowed this live broken electric or power line to lie unattended to in a place where it was a lethal danger to the public, including children who live at the nearby settlement and who, to the knowledge of Defendant, usually play there;
(b) neglected to repair the live broken electric or power line or otherwise removing the danger posed by the same when it was first informed of this broken line on 8th and 9th July 1999 by Mr Ken Rapila.
(c) Failed to conduct routine checks and or inspection on the electric or power lines at the Two Mile Hill Settlement to ensure that its electric or power lines were safe and did not pose a danger to the public;
(d) Failed to erect appropriate warning notices or signs or otherwise advised the public to keep clear of the potential danger posed by the (live) broken electric or power line at the Two Mile Hill Settlement, especially after Elcom had been urgently requested by Mr Rapila on the 8th July 1999 and again on 9th July 1999, to attend and to rectify the fault;
(e) Knew or ought to have known that leaving the live wire without warning to the public and/or without rectifying the problem posed grave danger to the safety of the public, especially the children including the deceased.

13. The wrongful neglect of the Defendant referred to in paragraph 12 of this Statement of Claim amounts to breach of its statutory duties under its enabling Act.
    
14. In the alternative, the wrongful neglect of the Defendant referred to in paragraph 12 of this Statement of Claim amounts to ‘Wrongful Neglect Causing Death’ provided for under part IV of the Wrongs (Miscellaneous Provisions) Act.
    
15. in the further alternative, the wrongful neglect of the Defendant referred to in paragraph 12 of this Statement of Claim amounts to negligence under the Common law as adopted and applied under Schedule 2.2 of the Constitution.
    
16. In relation to paragraph 15 above, (negligence under common law), the Plaintiff says because of the highly dangerous nature of service (electricity) supplied by the Defendant, the Defendant owes the highest duty of care towards the public, at large, and in this case to the residents and public at Kaugere.
    
17. As a result of the wrongful neglect of the Defendant and consequent death of the deceased child, not only has the Plaintiff(s) but also other members of the deceased’s family have suffered the loss of their child/nephew/brother, and in addition have suffered injury. The particulars of these loss and injury are set out under paragraphs 18 and 19 of Statement of Claim herein below..."
    

Similar pleadings are made in respect of WS 1079/01.

4. Particulars of Defence as pleaded in Amended Defence are in similar terms in both matters. They are as follows:

"1. The Defendant does not know and cannot admit paragraphs 1, 3 and 5 of the Amended Statement of Claim

2. The Defendant admits paragraph 2 of the Amended Statement of Claim.
   
   • As to paragraph 4 of the Amended Statement of Claim the Defendant states that the functions and duties of the Commission are as prescribed by Section 21 of the Electricity Commission c.78 and further the Defendant relies on Section 44 of the Electricity Commission (Conditions of Supply) By-Laws c.78 which provides the Defendant with immunity from any claim of strict liability.
     

As to paragraphs 6 to 12 inclusive and Particulars (a) to (e) of the Amended Statement of Claim the Defendants states:

• (i) The alleged "live broken electric or power line" which allegedly caused the accident was in fact a "stay wire", which braces the power/distribution pole against the wind etc, which is not normally energized, and not an "electric wire" or "power line" or "live wire" as alleged in the Amended Statement of Claim.
• (ii) The Defendant denies any knowledge of the allegedly broken stay wire prior to the alleged electrocution.
• (iii) Upon advice for the first time the Defendant’s officers attended the scene and disconnected power supply to the stay wire after the alleged electrocution.
• (iv) Further or in the alternative, the allegations in the Amended Statement of Claim and any loss or damage suffered by the Plaintiff as alleged was caused or suffered as a result of the Plaintiff’s/Deceased’s own fault in that:
  

PARTICULARS OF CONTRIBUTORY NEGLIGENCE

(a) The deceased failed to keep any or any proper look out;
(b) The deceased’s parents and/or guardians failed to take any or any proper care of the deceased in failing to prevent the deceased from venturing outdoors and thereby exposing himself to the risk of injury during or soon after the heavy rain and stormy conditions including the risk of injury from flying objects, falling trees and falling/fallen power liens all caused primarily by an act of God;

7. The deceased’s failure to heed the obvious risks described above and associated with playing in inherently dangerous conditions and at an inherently dangerous location resulting in his death;
8. Fault of deceased in playing with or playing near the allegedly broken stay wire which is alleged to have been "lying by the pool, and in so doing under inherently dangerous (wet) conditions.
9. Fault of the deceased’s parents and/or guardians in:
   • (i) Sending the deceased out to empty the household rubbish under inherently dangerous conditions: and
   • (ii) Omitting to caution the deceased of the inherent risk of electrocution posed by the allegedly broken stay wire, which they alleged to have known about at that time.
     
4. The Defendant denies paragraphs 13 of the Amended Statement of Claim.
   
5. As to paragraph 14 of the Amended Statement of Claim the Defendant states that neither the Defendant nor its servants or agents were at fault, acted wilfully or negligently, and hence cannot be subject to the provisions of Part IV of the Wrongs (Miscellaneous Provisions) Act c.297.
   
6. As to paragraphs 15 and 16 of the Amended Statement of Claim the Defendant states that where there is express statutory provisions 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 – the Constitution Section 59(1) and Schedule 2.1.
   
7. The Defendant denies the contents of paragraph 17, 18 and 19 insofar as liability is concerned; otherwise the Defendant does not know and cannot admit the allegations in the said paragraphs.
   
8. Save as aforesaid, the Defendant denies each and every allegation contained in the Amended Statement of Claim."
   

2. The case for the parties

5. The main legal issue is whether the "electrocution", (which is not denied) was caused by the negligence of the defendants, in attending to the "loose electrical power line" which I will refer to for time being as the "the faulty power line". There is a dispute as to whether or not the loose "faulty power line" was a voltage power conductor or a stay wire (which is not a voltage conductor) fixed to a stay post situated on the ground. Much turns on the undisputed duty of the Defendant, as the public supplier of electricity and responsible for installation and maintenance of power poles and lines installed in public places such as public road reserves, to inspect and identify faults, attend to and fix "faulty power line", either on its own initiative or upon receiving report of the defect from members of the public. The plaintiffs’ case is largely based on the alleged failure of the defendant to attend to the "faulty power line" after the defect was reported. The plaintiff’s case is also based on the defendant’s alleged breach of its statutory duty to carry out routine inspection of the power pole/lines in order to identify faults and then fix them.

6. There is no question on the defendant’s statutory obligation to maintain electrical installations located in public places including road reserves: Nimb Koim v PNG Electricity Commission (1997) N1546. There is no question on the defendant’s statutory responsibility to conduct regular or routine inspection of electrical installations in public road reserves in order to detect and rectify faults. There is no question on the manner in which a fault on an electrical installation on a public road reserve is brought to the defendant’s attention. First, by report made by concerned member of the public ("First basis") and second, by the defendant’s own regular or routine inspection ("second basis"). There is no question on the defendant’s duty to attend to and rectify the fault once it comes to its attention. Finally there is no question that failure to do so may result in the defendant being liable in negligence, pursuant to s.59 of the Electricity Commission Act Ch. No. 78 (the "Act") and s.44 of the Electricity Commission (Conditions of Supply) By-Laws (the "By-Laws").

7. In terms of evidence, in relation to the first basis of the claim, Mr Rapila was the only witness called. The plaintiffs also adduced evidence from various defence witnesses called by the defendant.

8. The plaintiffs did not call any evidence on the second basis of the claim. The plaintiffs did however adduce some evidence through cross-examination of some defence witnesses. I accept Mr Kassman’s submission that the defendant’s liability under the second basis is that the defect or fault was left unattended for an unreasonable period of time and the onus is on the plaintiff to provide evidence to establish the date on which the fault occurred and the defendant’s failure to inspect the installation, identify the fault and attend to it over a reasonable period of time.

3. Evidence and Findings of Fact

9. Both parties adduced oral and documentary evidence. The Defendant also adduced material evidence in the form of a Module power pole and line installation and other electrical parts. Each party took time to challenge each other’s evidence by cross-examination. The Court visited the scene of the electrocution after the end of the Plaintiff’s case. At the scene, the Plaintiffs’ key witness Mr Rapila identified various locations referred to in their evidence including the location of the live "wire" on the power line. The defendant’s officers also assisted the Court party in identifying the location of the pole, etc.

10. The Plaintiffs’ witnesses who gave oral evidence are Litina Okevi, Jeffrey Iyaguni, Suari Litina and Ken Rapilla.

11. The Defendant’s witnesses who gave oral evidence are Mark Evi, Tua Billam, Kave Posu, Robert Hau’Ofa, Giles Soso, Joe Tamande, Joe Kaukoi, David Uleme, Joe Angangco, Gerard Fae and Hore Mirou.

12. Other documentary and materials admitted into evidence are as follows. For the plaintiffs, the Affidavit of Suari Litina sworn on 21/06/04, Receipt for Claim No. PR 25/99 dated 30/8/99 and affidavit of Ken Rapila sworn on 02/01/03. For the defendant, the affidavits of Jose Angangco sworn on 23/06/04, Joe Tomade sworn on 21/06/04, Kave Posu sworn on 09/06/04, Daily Service Call Sheets (Log Sheets), affidavits of Kaukoi sworn on 21/06/04, Robert Hau’ofa sworn on 21/06/04, David Uleme sworn on 21/06/04, Hore Mirou sworn on 19/07/04, Tua Billam Affidavit sworn on 25/08/04, Standard Module Powerline installation, affidavits of Giles Soso sworn on 03/08/04 and Gerard Fae sworn on 03/08/04

13. Counsel for both parties filed written submissions and made oral submissions, both on facts and law. I have considered the evidence and submissions.

14. There is no dispute on the following facts:

1. On the early morning of 12 July 1999, at about 9:00a.m. the dead bodies, of two young boys, Out Litina and Billy Haumeotu, were found in a pool of water in a road drainage situated on the side of Muniogo Road, Badili, NCD.
   
2. They died instantly on the morning of 12/7/99 upon being electrocuted by electricity charged "faulty power line" which was hanging loose from electricity pole No. 2231 situated next to the drain, which had come into contact with a pool of water.
   
3. At the material time, the late Out Litina, a male, from Lufa, EHP, was attending Grade 7 at Kaugere Primary School. His age is not known. The deceased Billy Haumeotu is also from Lufa in EHP. He was doing Grade 1 at Kaugere Primary School. His age is also unknown. They lived with parents or relatives at 2 mile settlement.
   
4. On the early morning of Monday the 12/7/99, both boys left home for school but did not actually attend school. They were believed to be playing in the pool of water when they were electrocuted.
   
5. On the previous day, 11/7/99, there was heavy rain which continued into the morning of 12/07/99. As a result, excess water collected in the drainage, thereby creating a pool.
   
6. On 30/08/99, the defendant paid K3,660.00 to both deceased’s relatives to repatriate the body home and meet funeral expenses.
   
7. The bodies were flown to Goroka and buried in their village. Parents and relatives of the two deceased based in Port Moresby accompanied the bodies home.
   

15. At the outset, it is necessary to identify the type of "faulty power line" which caused the electrocution. The plaintiffs in the pleadings, based their case on a defect on "a live wire (power line)" with its end touching the drainage pool. Mr Rapila gave evidence consistent with this pleading. Upon my visit to the scene, Mr Rapila confirmed this by pointing to the HRC fuse holder from where the "faulty power line" was hanging. However, the defendant was able to provide evidence which proved that the "faulty power line" was in fact the stay wire which was bracketed onto the power pole and hooked to the stay post situated on the ground. The stay wire supported the power pole. The stay wire is not an electricity conductor. The plaintiffs later conceded that it was the stay wire used to support the pole and not an electricity conductor power line. Both parties also concede that there was a fault in the stay wire, in that it got dislodged from the stay post and it was touching the live HRC fuse, thereby energizing the stay wire with electricity. I accept this evidence.

16. It is also necessary to set out the power line installation as the technical evidence given by the defendants’ witnesses is not in dispute.

17. It is clear that the dislocated stay wire touched the live HRC fuse which energized the stay wire. The question remains how the dislocated stay wire came into contact with the live HRC fuse. Mr Fae has given a technical explanation of the power pole, electricity cable and stay wire installation and said that is the standard installation. Power lines are installed on the pole at 3 levels. Electricity cables are affixed to three cross-bars fitted on the pole. The first level which is the upper or top level holds 3 high voltage conductors (power lines). The second level is the lower cross-bar which holds 4 low voltage conductors (power lines). The third cross-bar is a short one which holds the service line and service HRC fuse, which supplied electricity to government store premises. These High Voltage or Low Voltage lines are connected to the HRC fuse. These 3 high voltage lines, 4 low voltage lines and HRC fuse are not insulated and they carry electricity.

18. The stay wire is not an electricity conductor. The top end of the stay wire is fixed to the power pole by a bracket and the bottom end is hooked onto a stay post fitted to the ground in standing position. The top end of the stay wire which is fixed to the pole by a bracket, is fitted between the second cross-bar and third cross-bar. It is situated some 15 cm below the second cross-bar and 45 cm above the third cross-bar. The reason why the stay wire is fixed at this position is for technical reasons and these are explained in Mr Fae’s affidavit. The potential risk of danger as I see it is that if the stay wire which is fixed to a stay post on the ground is dislocated for some causes, there is a real possibility that the stay wire will come into contact with the 4 low voltage lines on the second cross-bar or the HRC fuse, and thereby get energized itself. I appreciate the expert evidence from defence witnesses that the stay wire is standard wire and is coated and is not an electricity conductor but it is clear from the evidence that if the stay wire is sufficiently energized with electricity, it can carry sufficient electricity to be harmful, as it happened in this case. If the stay wire bracket were to be situated below the third cross-bar, then chances of a dislocated stay wire coming into contact with the low voltage conductors situated on the second cross-bar or the HRC fuse or the low or high voltage lines connected to the HRC, would be much unlikely.

19. I now turn to the evidence. In his affidavit Mr Rapila deposes as follows:

1. I am a public servant working with the Department of Works and Stores and Supply, as the officer in charge of the Customs and Shipping Section of the Government store at Badili, National Capital District.
   
2. I handle all import and export requirements of government departments such as CIS, Police, etc.
   
3. Week beginning Monday 5th July, 1999, we were experiencing power black out into the government store. We investigated the problem and on Thursday 8th July, 1999 or thereabouts we note that there was a broken wire at the power pole across the road that affected the flow of power into the government store.
   
4. So I immediately checked the telephone directory and called the enquiry section at the Elcom base at Gerehu.
   
5. A male person who attended to me on telephone, advised me to obtain the power pole number and gave it to him. I told him that I don’t know how and where I can locate the number.
   
6. The PNG Elcom staff, then described to me the place on the power pole where I could locate the number and I did as advised and noted the pole number as 2321.
   
7. I then called again and spoke to the same person and gave him the number and asked him to come quickly and fix the loose faulty wire because we need power to do our work. Especially the photocopies were down and we needed to photocopy documents.
   
8. After I made the call I waited for a long time. There was no sign of Elcom staff.
   
9. The next day Friday 9th July, 1999, I called again. The person at the enquiry section at Gerehu advised me that they will come and I waited whole day. There was no sign of Elcom staff until I left work to go home. I was very disappointed so I thought that I will follow up again on Monday 12th July, 1999.
   
10. On Sunday 11th July 1999, it started raining heavily in the night until Monday morning. There was little bit of rain in the morning but not heavy as it rained in the night. But the place was wet and flooding.
    
11. I didn’t come to work quickly that morning and didn’t know that two boys (deceaseds) were electrocuted from the very power line I wanted Elcom to fix two (2) days ago. After the police and the Elcom staff came and removed the bodies of the deceaseds I came to work. I saw people standing around the place where they were electrocuted.
    
12. The power pole as I said earlier is located across the other side of the road from the government store, approximately 6 to 7 metres from the store. A drain runs across under the road from where the government store is and the power pole is just beside the road near the drain.
    
13. A small steady flow of water in the drain allowed small fish and prongs to breed. The children living in the nearby 2 Mile settlement often enjoy catching small fish and prongs for fun.
    
14. After the body was removed I observed that the heavy rain in the night on Sunday (11th July 1999) caused a build up of water in the drain near the power pole no. 2321. The end of the faulty loose wire that was hanging above the ground came in contact with the water inside the pool of water in the drain.
    
15. The boys were electrocuted inside the pool of water near the power pole no. 2321. When I saw this tragic dead of these boys I was very disappointed with PNG Elcom because, if they had attended to my telephone call two days earlier immediately upon receiving my call on Thursday (8th July 1999) and Friday 9th July 1999) the boys wouldn’t have been electrocuted.
    
16. The family around the government store were not aware of the existence of the wire. We only located it on Thursday 8th July, 1999. Because I already reported the matter to Elcom to attend and fix it I thought they would fix it on Monday
    
17. The statements herein are to the best of my knowledge and believe true and correct and I made this statement voluntarily."
    

20. In Court, Mr Rapila gave evidence which in many respects contradicted himself on material aspects. His demonstration at the scene of the faulty power line also raised doubts about his credibility. There are various features of his evidence which leads me to conclude that he is not a credible witness of the truth, as follows:

1. He lives in the same settlement neighbourhood at Badili 2 mile area as the plaintiffs. His place of work is situated 50m away from pole 2331. It is possible that he had contacts with the plaintiffs prior to the date he deposed to his affidavit in 2003 and before trial.
   
2. He had contact with defence witness David Uleme, to whom he said he reported the fault to, by phone on 8th and 9th July 1999. His evidence is contradictory. In his affidavit sworn on 14 January 2003, he said he spoke to "a person" at the defendant’s office at Gerehu. This affidavit was deposed to some 2½ years after the incident, by which time he had sufficient time to recollect what transpired between 5th July 1999 – 12th July 1999 and ample opportunity to identify the person to whom he reported the fault to, particularly if that person was known to him.
   
3. In Court, in evidence-in-chief, he said he did not know the person he spoke to on the phone. He did not know "David Unawe" and didn’t know if he spoke to him. Later he said "David Unawe" received his call and transferred his call to the people who worked in the office who were responsible.
   

In cross-examination, he said he did not get the name of the person he spoke to who received his call; on 8th and 9th July 1999. Later he said he wrote down the name of the person he spoke to on a desk pad. The desk pad was locked away in his office. After signing the affidavit, he returned to the office to check for the desk pad but the office was emptied of supplies. After he signed the affidavit, he did not show the lawyers the desk pad.

He also gave conflicting evidence of knowing and seeing David Uleme. He saw him when he came to the works compound to see his sister. Later when put, he admitted he knew David Uleme knows him but he denied speaking to him on 8th or 9th July 1999. Later he said "its true, I spoke to him" and that David Uleme gave his full name.

David Uleme in his evidence in Court said he knew Ken Rapila because Ken worked with his sister and he went to visit her in 1985 – 1986. Ken knew that he worked for Elcom and knew his full name. On 8 -9th July 1999, David was out of the office disconnecting lines and never spoke to Ken Rapila.

The record of daily attendance register do not record any faults on pole 2231 reported between 8th – 9th July 1999.

These evidence clearly show that Ken Rapila cannot be believed on the fault reported to the defendant’s office at Gerehu.

4. He was firm in his evidence in Court and affidavit that the line was a live power line which had been broken and was hanging loose from the live low voltage lines running on the second cross-bar. At the scene he pointed to what appeared to be ends of power lines sticking out on the second cross-bar, giving the impression that the loose wire had been severed from the low voltage conductors. Upon close observation at the scene, these loose ends were permanent. The defendant’s technical evidence is that those loose end lines are permanent low voltage conductors.
   

The stay wire is obviously situated below the low voltage lines running on the second cross-bar. The loose stay wire in no way could have come into contact with the low voltage lines situated above it. This evidence appeared to be a fabrication on Mr Rapila’s part.

5. Finally, on the day of the incident, he came late to work but attended at the scene where people gathered and they were crying over the dead bodies. The defendant’s employers and police were present. At the scene, he made no effort to register his complaint with the defendant’s officers who attended at the scene or with the police, over the lack of attention given after he reported the fault on 8th - 9th July 1999. After a long silence, he resurfaced in 2003 to sign an affidavit.
   

21. From this evidence, I find that Mr Rapila for some reasons was trying to connect the defendant’s fault by seeking out a person that he could link up with to establish the defendant’s default in attending to the faulty stay-wire. That person coincidently was Mr David Uleme whom he knew worked with Elcom in the office at Gerehu. Mr David Uleme fitted his perfect scheme of a person he knew to whom he reported the fault, only to be not attended to. He tried to play ignorance first to create the impression that Mr Uleme was a stranger to him to whom he reported, but later, ended up saying he knew him and reported the fault to him. I accept Mr Uleme’s evidence that Mr Rapila has known him by name and that he was not on duty in the office between 8th – 9th July but on patrol duty outside disconnecting power lines.

22. For these reasons, I reject Mr Rapila’s evidence of the reporting, as evidence of the untruth. For this reason, the first basis of the plaintiffs’ case must fail.

23. I turn to the second basis of the plaintiff’s case. There are three (3) main factual points to consider. The first point to consider is to understand the nature of the fault. The evidence of the fault comes from defendant’s witnesses, Mr Tua Billam, Mr Hore Mirou and Mr Gerard Fae. Mr Mirou’s affidavit sworn on 19/7/04 deposes to observations made and actions taken at the scene, on the morning of 12/7/99 as follows:-

"3. I recall that on the date of this electrocution 12 July 1999, I was on duty and at the workshop at Gerehu when a call came for me over the radio from 6 Mile base (24 hour service call centre) to attend to this matter.

3. I immediately travelled out to Badili with a fellow linesman Maibu Saroa. He is no longer with PNG Power Limited.
5. It is PNG Power policy that we attend immediately to any call concerning reports as to lines being down, sparking and electrocutions.

6. When we arrived at the scene, I observed;

7. There were many people gathered at the side of he drain near the base Pole 2321, most of whom were crying.
8. Police officers were also present.
9. The stay wire connected to Pole 2321 was hanging loose or was disconnected from the stay post.
10. The end of the stay wire was in the pool of running water in the drain at the base of Pole 2321.
11. The stay wire was touching the HRC fuse holder which caused the stay wire to be energized.
12. There was a length of approximately 2m of the stay wire in the pool of water.
13. We quickly rushed to the transformer which was on a pole a short distance up the road and we isolated the LV fuses disconnecting the power to the area.
14. We then returned to Pole 2321, tested and confirmed the stay wire was not energized.
15. By that time, the victims were already dead.
16. The Police CID arrived 10 minutes later and took photographs and notes and then gave permission –
    17. for the removals of the bodies.
    18. for removal of stay wire."
        

24. In a joint report compiled after the inspection at the scene on 12/7/99, Mr Mirou and Mr Saroa filed this report:

"SUBJECT: ACCIDENT AT BADILI – 12/07/99

On Monday, 12th July, 1999 while at Hohola around 0930-0945 hours, we, (Mr M. Saroa and Mr H. Mirou), received an Electric Shock call from base, we upon receiving the call proceeded straight to the Electric Shock site at Badili.

On our arrival we saw the Police Officers and people all over the place. We spotted the victim in the pool of water, down in the drain, with the live stay wire in it. The stay was on the live HRC fuse.

We quickly rushed to the transformer and isolated the LV fuses. (HRC fuses). We came back to the accident site and tested the stay wire. We confirmed to the police officers that it was dead and safe for them to check the victims only to confirm that they were already dead.

We waited for the CID to come and observe the victims before we could remove the stay wire. The CID arrived 10 minutes later and took pictures of everything, than gave us permission to remove the stay wire. We removed the stay wire and left for other service calls." (My underlining).

25. There is no question that the stay wire got disconnected from the stay post and was hanging loose over the drainage, with the top end touching the HRC fuse and thereby energizing the stay wire, with sufficient electricity to reach dangerous level to be harmful to anyone who come into contact with it or with anything that is easily prone to electricity, such as water. The joint report by Mr Mirou and Mr Saroa shows that the energized "stay wire was in it" meaning in the pool of water, which no doubt means the stay wire was either at the road level or just below the road level where the water level was.

26. The question arises as to whether the fault in terms of the severed stay wire would have been reasonably known and attended to by the defendant. Questions as to when and how the stay wire was dislodged from its position on the stay post are relevant here.

27. This is the second point to consider. There is no direct and primary evidence from either party as to when exactly the stay wire was dislodged from the stay post and the duration the dislodged stay wire remained uninspected and unattended by the defendant. The only other evidence is secondary and that is the photographs by Mr Billam taken of the stay post and stay wire at the scene of the incident and explanatory notes accompanying the photographs. The explanatory notes are consistent with what is shown by the photographs. In the absence of any other evidence, I draw the following inferences from the photographs and explanatory notes:

1. The metal stay post was dislodged from its standing position and buried amongst soil and kunai grass growing over it, for a very long time. The very much decayed or rusted stay post clearly tells the story.
   

I accept that the cause of this was possible roadwork maintenance and clearance, probably using an excavator or bulldozer which uprooted the stay post and deposited it in a lying position.

There is no evidence to show if the stay wire was still hooked onto the stay post after the stay post was dislodged from its standing position and lying on the ground. There are several scenarios: (1) If the stay wire was still hooked onto the stay post when the stay post was dislocated, the stay post had to be moved closer to the power pole in order for the stay wire to remain intact. (2) If the stay wire got detached from the stay post at the same time the stay post was dislodged, then the stay wire was left hanging in the drainage pool of water or just above the water drain for a very long time, unattended to. (3) The other possibility is that the stay wire remained intact hooked to the stay post until recently and by some human mischief or forces of nature or through wear and tear or it was severed and left it hanging above the drainage. Given the design of the stay wire fixed to the power pole, under all three scenarios, the movement of the stay post would have resulted in movement of the stay wire which would pose the risk of the stay wire coming into contact with the HRC fuse or even the 4 low voltage conductors.

The defendant pursues the third option. The defendant says the stay wire which was hooked onto the stay post showed it was freshly cut by a bolt cutter and dislodged from the stay post.

2. I find as a matter of inference from all the above that, the question of when the stay wire was disconnected from the stay post is not significant. Given the design and location of the stay wire bracketed on the pole, any movement of the stay post from its original location on the ground would cause movement of the stay wire from its original position and pose the risk of contacting the HRC fuse or 4 low voltage conductors and energize the stay wire. That risk would remain as long as the stay wire remained dislocated from its original position on the ground. As long as the stay wire touched the HRC fuse or low level voltage conductors as a result of movement of the stay wire position, the risk of energisation of the stay wire remained, and the risk of electrocution of any person coming into contact with it, for whatever reasons, remained a real possibility. The real question is what remedial actions were reasonably required of the defendant to rectify the dislocated stay post/stay write. This could only happen upon routine or regular inspection. The dislocated stay post/stay wire would have been easily discovered through normal routine or regular inspection, because it would have been quite visible from the road, even when a reasonably inexperienced electrical inspector on the lookout for defective installation was seeing the dislocated stay post/stay wire from a fleeting glance in a driving position. I find that the defendant failed to conduct routine regular inspection of the power installation in this area for a very long time. The defendant’s explanation that it ceased routine inspections in this area in 1999 due to attack by criminal groups and lack of resources and finance is not a good excuse and I reject it.
   

28. The third point to consider is based on Mr Kassman’s submission on the evidence of negligence offered by the plaintiff. Mr Kassman submits it is not safe to find negligence on the defendant’s part on the balance of probabilities because they have not called any evidence. I agree with Mr Kwimberi however, that sufficient evidence has been adduced by the plaintiffs through cross-examination of the defendant’s witnesses. It is open for the Court to consider the evidence adduced by the plaintiffs in cross-examination of the defendant’s witnesses, notwithstanding that the plaintiffs themselves are unable to call such evidence. That is the evidence which I have considered above on which I find the defendants failed to conduct routine/regular inspection which if other people in the area who had seen when the faulty stay post/stay wire occur, lying unattended for a long time, etc. which could have been clearly visible at a glance.

3. Principles

29. I set out the relevant principles governing negligence and standard of proof.

30. In order to prove an action in negligence in a case of personal injury or death of a person, the plaintiff must prove three things – (1) the existence of a duty to take care, which is owed by the defendant to the plaintiff; (2) the failure to attain that standard of care, prescribed by law, thereby committing a breach of that duty; and (3) damage.

31. In the present case, there is no dispute as to the defendant’s statutory duty to maintain electrical installations in public land such as road reserves and the duty of care owed to members of the public who use the road or road reserve. The breach of duty and quantum of damages are disputed.

32. The standard of proof of the general duty of care and breach of that duty owed in an action in negligence in a personal injury or death case is adequately canvassed by the Supreme Court in Burns Philp v Maxine George [1983] PNGLR 55. It is convenient to adopt McDermot J’s summary:

"And Dixon C.J. quoted from it in Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298 – a case concerning a collision between two truck in which the plaintiff, a driver of one, was killed and the driver of the other was not called, -- when he said at p.304:

"In an action of negligence for death or personal injury, the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as a affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true ‘that you need only circumstances raising a more probably inference in favour of what is alleged’. But ‘they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture’.

"In argument, much was said about foreseeability. In The Council of the Shire of Wyong v. Shirt and others (1980) 54 A.L.R. 283, Mason J., with whom the majority agreed, commented upon ‘The Wagon Mound’ No. 2 [1966] UKPC 1; (1967) 1 A.C. 617 in the following terms at p. 285:

"In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position...".

His Honour further stated:

"A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of foreseeable risk of injury does not in itself dispose of the question of breach of duty".

33. Electricity is a dangerous thing and the standard of care imposed on those charged with provision of electricity services is a high one. In Charlesworth & Percy on Negligence, Sweet & Mawell, 10th Edition, (2001), at para 12 – 153, states:

"The standard of care required of a supplier of electricity is a high one, reflecting the instrically dangerous nature of electricity itself. All reasonable known means of keeping the electricity harmless should be used."

34. There are a few decided cases on personal injury or death arising from electricity supplied by the defendant in this country. Of these decided cases, little discussion is found on duty and standard of care in detail. There are many cases decided elsewhere but it is sufficient to discuss two English electrocution cases. They are Moyle v Southern Electricity Board [1962] 1 Llyod’s Rep. 607 and Buckland v Guilford Gas Light & Coke Co. [1949] 1 K.B. 410.

35. In Moyle’s case, the plaintiff, a 26 years old man was electrocuted and injured when high voltage electricity lines energized a kite which he was flying. The electricity cables were mounted on poles at 30 feet from the ground. Each pole was marked with the word "Danger" in capital letters. The poles and cables were constructed and maintained by the respondent under statute. The kite had a steel wire attached to it which was attached to a metal used for controlling the kite. On a windy day, the plaintiff, a tourist, flew the kite to entertain some young children. The kite caught up with the cable and energized the steel wire and metal and electrocuted him. On appeal against a finding against the appellant, Lords Justice Seller, Lord Justice Danckwert’s and Lord Justice Diplock unanimously dismissed the appeal. In dismissing the appeal, Lord Seller said:

"The learned Judge has found no negligence on the part of the defendants. Notwithstanding every effort one would make in a case of this sort to see how best the case could be put on behalf of the plaintiff—and it could not have been better argued than it has been here by learned Counsel on his behalf—it is clear that the defendants had complied with the statutory regulations for securing the safety of the public, and the allegations which are made about the regulations fail. They do, as one would anticipate, cover those risks which would normally be likely to arise, but not such risks as would not normally be foreseen. They do not in themselves exclude all liability under the common law. There might still be circumstances where the common law would enforce some greater protection, but they would be special circumstances, very different, as I see it, from those which prevailed here.

It is true that this overhead cable was passing over a part of some divided common land which was used by people in the vicinity. There is said to be an upper and lower part divided by a railway, and it is a place to which people, including children, resorted for recreation.

As far as the poles were concerned, I think, having seen the photographs, that they were not similar to telegraph poles or telephone poles, but revealed themselves by their design to be carrying electric current. Be that as it may, they were provided with a "Danger" notice by which warning was given.

Then it is said, these being highly dangerous things, in which currents from the 30-ft. overhead wires were only cut out in case of accident in a period of 2.9 seconds, and that serious injury or death could ensue in much less time, that further precautions should have been taken. I find nothing there, as the learned Judge said, which could be foreseen. It is true, as he said, that there was a warning which certainly complied with the regulations. It might, in given circumstances, have been added to by a warning post, or something of that kind; but, on such information as there as there was before the Court, I do not feel that further notice should be given. I cannot see that it could be foreseen that an accident of this sort was ever likely to arise. It is a most regrettable matter, but in my view it is inevitable that this appeal should be dismissed."

36. In Buckland’s case, high voltage electrical cables mounted on poles were situated on private grazing field which was frequented by young children eager to watch farmers milking cows. The cables ran 2 feet above an easily climbable tree situated on the field. There was a public footpath constructed on the field. The plaintiff’s daughter, a 13 year old school girl strayed off the footpath into the field and climbed on the tree. She came into contact with the cables and was electrocuted. Justice Morris found that the defendants were negligent in that they had a duty of care owed to the girl who belonged to the class of persons described by Lord Atkins as a "Neighbour" in Donoghue v Stevensen [1932] A.C. 562 at 580. Justice Morris said at p.419:

"But the liability, if any, of the defendants is on a somewhat different basis. It arises because of a duty to take reasonable care while maintaining highly dangerous overhead wires. If the daughter of the occupier of the field had done as the deceased girl did, then, on the facts as I have found them, the defendants would be liable. But reasonable forethought on the part of the defendants would have extended to cover not only the daughter of the occupier of the land but invited playmates of the daughter and possibly some others, such as the deceased girl, in the circumstances of the present case. ...

"Endeavouring to apply reasonable standards, and not seeking to require any unique gifts of pre-vision, I consider that the defendants ought to have known that it was dangerous to have their high-voltage wires immediately above a tree which could easily be climbed and a tree whose foliage was so dense that the presence of the wires above could not readily be seen. The fact that the tree was about 90 yards from the footpath is merely a particular additional feature of the circumstances. Applying the words of Lord Atkin in Donoghue v Stevenson (I), the defendants owed a duty to take reasonable care to avoid acts or omission which they could reasonably foresee would be likely to injure a person so closely and directly affected by their acts or omissions that the defendants ought reasonably to have had such a person in contemplation as being so affected.

"It required no vivid imagination on the part of anyone traversing the route of the wires to appreciate the great peril of having the wires above a tree that could be easily climbed, and whose foliage, being dense in the month of June, would obscure the wires. If anyone did climb the tree he would with every step approach a hidden peril of the direst kind. The facts of the present case show all too dramatically the nature of the peril. It was, in my judgment, easily foreseeable that someone might climb the tree and so might become in close proximity to an unseen deadly peril. The tree might have been felled when the wires were being erected. The tree was in fact cut down on some date after June 21, 1947. This, however, is not a circumstance that, of itself, involves any inherent admission of the prior necessity for cutting down, and it would be wrong so to regard it. That many later steps could have been taken which would have prevented the happening of the fatality."

His Honour concluded at p.424 – 425:

"For the reasons which I have assigned I consider that the defendants, in the circumstances which existed, owed a duty to the deceased girl to take all reasonable steps to prevent the existence of a hidden peril. The defendants could so easily have taken various steps which would have avoided the grave risks of lurking, unseen danger. By breach of duty amounting to negligence they are, in my judgment, liable for the event which happened. I do not consider that contributory negligence on the part of the deceased girl is established. It was said that being a bright intelligent girl aged thirteen who was, as the evidence showed, competent to look after a younger child aged eight, she ought to have realized that she was approaching overhead wires. It was submitted that she could and should have seen that there were overhead wires and that they went towards the hedge where the tree was, and that accordingly she ought to have deduced when at the foot of the tree that the wires would be overhead and to have remembered the direction of approach. But a possible failure to recall the existence of the wires or a failure to make a correct deduction ought not, in the case of a girl of thirteen, to be held to be negligence. If she saw the wires and though that she could climb up to them by going up the tree, in that even she might have regarded them as being telephone wires or some wires of a harmless character. There was no notice on or near the tree conveying a warning that concealed above the foliage there were wires which would kill at a touch. If, as seems more probable, she did not remember when she was under the tree that she had previously seen wires going towards the direction of the tree, this ought not to be imputed to her as negligence. Contributory negligence is not made out."

37. I consider the principles on standard and duty of care canvassed in the above two English cases and those set out in Burns Philp’s case to be relevant and applicable to the present case and apply them. The standard of duty of care owed by the defendant to keep the electrical installation in a public road or road reserve is a high one. It is the defendant’s responsibility, charged by statute, to keep the electrical installation harmless to the public who undoubtedly use the road and the road reserve, for whatever purpose they may choose to engage in. The defendant must conduct regular or routine inspections of the electrical installation in public road reserves, to detect any faults created or caused by technical faults, by human mischief or by forces of nature. Once the fault is detected, they are under a duty to put up warning signs, attend to and fix it immediately. It is reasonably foreseeable that any member of the public who uses the road/road reserve will get injured or killed if a defective power installation is left unattended to for a long time. If it is expected to take some time to fix the fault, they must install warning/danger signs. If they fail, and as a result, a member of the public is injured or dies as a result of the unattended electrical fault, they must be held liable in negligence.

4. Application of principles to Facts

38. Applying these principles to the facts of the present case, I consider that the facts and inferences I have made above supports a finding of breach of duty of care.

39. I deal with the defendant’s submissions in this way. I accept that the plaintiffs could have called evidence on roadworks in the area from relevant authorities on the cause and duration of the dislocated stay post/stay wire.

40. However, this kind of evidence is often difficult to find for ordinary persons in the position of the plaintiffs. The onus would be on the defendant to provide such evidence as part of disproving the plaintiffs’ case. Based on the secondary evidence consisting principally of photographs and notes accompanying the same and the defendant’s own admissions through Mr Billam that the defendants ceased routine inspections in 1999 for various reasons, plus my observation at the incident site, I am satisfied that such evidence is sufficient to establish breach of duty of care.

41. I accept the electrical installation in NCD is a large establishment and it is difficult to manage in terms of regular/routine inspection. The Badili area in which this pole was situated is isolated area not frequented by government officers, the public etc. The government store has been closed for many years now. It is situated in a settlement neighbourhood nearby and criminal activity is not uncommon in this area. Life in this area appears to be very much disorderly, with a large number of unwanted people having access to government facilities or doing all kinds of things in this area. The class of persons to whom the duty of care is owed are people with unpredictable lifestyle, who may not be able to fully appreciate the nature of the threat posed by electricity or electrical installations which are clearly faulty.

42. However, in my view, the standard of care owed to the public who use the road or road reserve by the defendant does and should not be reduced or varied or tailored in any way to suit the varying degrees of lifestyle and conduct of persons. The highly dangerous nature of electricity calls for a uniform standard of high degree of care in keeping the installation harmless.

43. I accept that the energisation of a stay wire due to dislocated stay post/stay wire in the manner it happened in this case appears to be a rare incident. The stay wire is not designed to conduct electricity. The installation of the stay wire on the pole is a standard one and there are many good technical reasons for this.

44. However, given the duration of the dislocated stay post and stay wire and given the unsafe location of the stay wire on the power pole, and the amount of electricity required to charge the stay wire to dangerous levels, I consider the defendant’s failure to inspect the installation over a long period of time to be critical.

45. I accept that the weight of the evidence offered by the defendants, the care taken by the defendants in preparing and presenting its case, with the bent possible explanation it can offer, technically and otherwise, does not compare with the evidence offered by the plaintiff. The bottom line however is that the defendant failed to conduct routine or regular inspection of the electrical installation situated on the public land for a very long time. The excuse that criminal activity posed security risk for the defendant’s employees and prevented routine inspection of installations in public places and lack of resources, etc, which caused the defendant to close inspections in 1999 is not a valid excuse for failing in its duty. Given the design of the stay wire fixed to the pole, the risk of the stay wire being disconnected from the ground and coming into contact with the HRC fuse or low voltage wire and the stay wire getting energized was a real one and foreseeable and only routine and regular inspections of the installations would have resulted in identifying the fault, corrected it and prevented an incident like this. The dislodged stay post would have been easily identified on a routine inspection visit and rectified.

46. It is possible that the stay wire connected to the stay post could to have been recently cut with a bolt cutter possibly through criminal activity, but this is not clear from the photographs of the stay wire. Alternatively, it would have been dislocated by pressure or friction caused by a shifting stay post, over a long period of time. But that is not significant. As long as the stay post remained dislodged for a long time unattended to, the risk of danger remained.

47. On the question of foreseeability of the injury to the plaintiffs, I find that this being a public road reserve on which the public is expected to be for whatever reasons, the injury to any member of the public including the 2 deceased was reasonably foreseeable. The defendant owed a duty of care to members of the public who travelled on this public road. It was reasonably foreseeable that a member of the public, in particular children of the two deceased’s age group would come into contact with the live loose stay wire and get injured or killed. If they had regularly inspected the area, they would have easily identified the fault and fixed the fault.

48. On the question of contributory negligence, there is no evidence to support such finding.

49. For these reasons, I find the defendant was negligent. I find in favour of the plaintiff on the question of liability. As the question of quantum was not argued, I will now hear both parties. I will resume on the question of costs.

50. The formal orders I make are:

1. Judgment is entered in favour of the plaintiffs with damages to be assessed.
   
2. Costs is reserved.

________________________________________________________________
Kwimberi Lawyers: Lawyer for the plaintiffs
Kassman & Co Lawyers: Lawyer for the defendants