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Savi v PNG Power Ltd [2024] PGNC 451; N11162 (28 February 2024)

N11162

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 394 OF 2020

ALOIS SAVI

V

PNG POWER LIMITED

WAIGANI: WAWUN-KUVI J
26 APRIL 2023; 28 FEBRUARY 2024

TORT-NEGLIGENCE-House fire-what was the cause of the fire? whether the elements of res ipsa loquitur (the thing speaks for itself) have been established?

The plaintiff, Alois Savi, owns a three-bedroom house in Madang, where his wife and children live while he works in Lufa, Eastern Highlands Province. The property also includes an adjoining shop and office. In 2019, a fire destroyed the house. No one was home at the time. The plaintiff claims that he informed the defendant, PNG Power Limited, about an electrical defect in 2015, which cut off the electricity supply to his house, but they failed to rectify the issue. He asserts that the fire was caused by the electrical defect. PNG Power Limited contends that it has not supplied electricity to the property since 2015 and denies any negligence concerning the fire.

Held:

(1) The cause and source of the ignition is unknown.
(2) Res ipsa loquitur (the thing speaks for itself)^[1] is a rule of evidence and does not have to be pleaded in the Statement of Claim: see JY Trading Ltd v Mim Holdings Ltd [2019] PGNC 480; N8783, Porter v Morrison-Knudsen International Co Inc [1973] PNGLR 240, Ruth Wama v John Kama Buri (2011) N4321 and Edwards v Jordan Lightening [1978] PNGLR 273.
(3) To invoke the principle of res ipsa loquitur, three elements must be demonstrated: (1) there is an absence of explanation of the occurrence that caused the damage; (2) the occurrence was of a kind that does not ordinarily occur without negligence; and (3) whatever caused the occurrence was under the control of the defendant: see JY Trading Ltd v Mim Holdings Ltd [2021] PGSC 4; SC2075 affirming JY Trading Ltd v Mim Holdings Ltd [2019] PGNC 480; N8783 and Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd [2008] PGNC 222; N3650.
(4) As to the first element, for the principle of res ipsa loquitur to operate, the occurrence must be defined precisely: see Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650 and JY Trading Ltd v Mim Holdings Ltd [2021] PGSC 4; SC2075.
(5) Since the occurrence cannot be precisely defined, the principle cannot operate.
(6) The proceeding is dismissed.

Cases Cited

JY Trading Ltd v Mim Holdings Ltd [2021] SC2075
Kitawal v State [2007] SC927
JY Trading Ltd v Mim Holdings Ltd [2019] N8783
Ruth Wama v John Kama Buri (2011) N4321
Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650
Haiveta v Wingti (No 1) [1994] PNGLR 160
Edwards v Jordan Lightening [1978] PNGLR 273
Porter v Morrison-Knudsen International Co Inc [1973] PNGLR 240

Counsel

Kuria for the plaintiff
T Noki for the defendant

1. WAWUN-KUVI, J: This case concerns a fire that broke out around midday on 7 December 2019, destroying a 3-bedroom house with an office and shop located at Section 169, Allotment 9, Sisiak Number 3, Madang, Madang Province.
   
2. No one was home when the fire started. Alois Savi, the plaintiff, claims that there was an underlying electrical fault in 2015 that caused the Easipay meter in his house to implode cutting of electricity to his property. He reported the issue to PNG Power Limited, the defendant, who failed to rectify it. He contends that because of this the defendant is negligent and is seeking to recover loss and damage to the three-bedroom house, shop, and office, as well as their contents.
3. The defendant denies that it caused the fire. In response, it refutes the plaintiff's allegations that a faulty EasiPay meter or other electrical fault through its power lines caused the fire. It contends that since 2015 it has not supplied electricity to the plaintiff’s property.
   
4. Both liability and quantum are in dispute. The main issues regarding liability are:
   1. What caused the fire?
   2. Was the fire caused by the negligence of the defendant?

The plaintiff’s case

5. The plaintiff in his amended Statement of Claim on 12 November 2022 pleaded that:
   
   1. At all material times the defendant supplied electricity to the plaintiff ‘s property through an electricity service line that carried electricity from the power pylon.
   2. In 2015 the Easipay meter was damaged by a minor implosion. The cause of the implosion is not known. As a result, power was disconnected to the property.
   3. The plaintiff took all reasonable steps to report the implosion and disconnection of electricity to the property.
   4. Given the circumstances the only inference is that the defendant is negligent because it failed to:
      1. Inspect the Easipay meter when it imploded.
      2. Determine the cause of the implosion and rectify it.
      3. Determine and rectify the disconnection of electricity to the property.
6. At trial, he relied on his affidavits filed on 28 February 2023, 27 September 2021 and 14 July 2021 exhibited as P1, P4 and P5. Additionally, he relied on the affidavit of Rubina Savi filed on 28 February 2023 exhibited as P2 and the affidavit of Helen Paul filed on 2 December 2021 exhibited as P3.
   
7. No one was present on the property when the fire started and engulfed the house and it enjoined rooms.
   
8. Helen Paul is a neighbour who observed black smoke emanating from inside the house.
9. The plaintiff was working in Eastern Highlands at the time of the fire.
   
10. Rubina Savi gives evidence supporting Alois Savi that there was an issue with the Easipay meter which was reported but nothing was done to resolve or rectify it.
    
11. Alois Savi says that the installed EasiPay Meter exploded in 2015 due to an electrical surge. He believes that the fire was caused by a surge of excessive current from the defendant’s electricity grid. He claims that an expert informed him of this however he has not produced the witness.

The defendant’s case

12. The defendant in its defence contends:
    1. The plaintiff last paid for electricity credits on 5 November 2015.
    2. There are no records of the plaintiff reporting the implosion to the Easipay meter.
    3. Fire through the service line is impossible because a fault or short circuit in the current would trigger the fuse which would have cut electricity to the property. Additionally, the upon inspection the power pole connected to the plaintiff’s property did not show any signs of fire.
       
13. At trial the defendant relied on the affidavits of Stanis Tibong filed on 29 September 2021 exhibited as D1, Eddie Teamu filed on 8 September 2021 exhibited as D2 and Collin Koi filed on 4 October 2021 exhibited as D3.
    
14. Stanis Tibong is the Team Leader Customer Service in Madang. He states that there is no record of the plaintiff reporting a dysfunctional Easipay meter. He was the team leader since 2014. Easipay meters were in stock and is there was a report, it would have been replaced. There is also no report of a stay wire being energized. The only document in file is the Statement of Claim dated 21 February 2020 from the plaintiff. PNG Power Madang was only aware of the fire when it received a letter from the plaintiff 2 months after the fire. After receiving the letter and inspection was carried and communicated to its Head Office. PNG Power system shows that the plaintiff was purchasing electricity credits since 5 November 2015. If he was still accessing electricity, then it was through illegal means.
    
15. Eddie Teamu is the Special Duty Inspector with the defendant’s Regulatory Services Group in its Head Office. On 6 July 2020 he attended the scene. He commenced employment with the defendant on 26 February 1996 as an apprentice Electrical Fitter. He graduated in 2020 as a tradesman. He is a licenced electrician. In November of 2021 he as confirmed as a Centre Electrician at Alotau. As an electrician his duties involved working at the powerhouse for generation and electrical maintenance, maintenance on the distribution network and tramission and distribution lines. In August 2004, he was certified as an Electrical Installation Inspector. In 2017 he was promoted to Electrical Inspector. He was attached with the Electrical Appliance Laboratory responsible for testing an awareness of standard electrical appliances. He then joined field inspection performing electrical installation inspection in Port Moresby and Central Province. Their duties involved inspecting electrical wirings inside buildings and responding to fire and electric shock cases to isolate the power for safety purposes. In 2013 he was promoted to his current position. His duties include electrical drawing examination, technical investigation, electrical projects inspection and primarily electrical fire and shock investigation. Investigations entail site inspection, data collation which included interviewing witnesses, taking photographs and compiling a technical investigation report. The report contains findings and recommendations on whether the fire was caused through electrical faults.
    
16. He was informed by the plaintiff that the stay wire had current flowing through it. He did a spot check using a multimeter which resulted in a reading of 3.823 or 0 volts. That meant that there was no current flowing. To cause an electric shock, injury or even death, the current should read above 50 volts AC.
    
17. The service line was already disconnected.
    
18. The plaintiff claimed that prior to the fire, the service line connected to his house contacted the stay wire which caused the stay fire to electrically charge. When people including himself came into contact, they would experience an electric shock.
    
19. He states that the allegations are not possible because as soon as the service line contacts the stay wire, which is connected to the ground, it would act as an earth wire forcing a return current to the service line where a fuse at the pole will give way to break the circuit effectively shutting down electricity supply to the service line. The plaintiff’s allegations would not have caused the fire.
    
20. The plaintiff also claimed that the fire may have started from an explosion in the Easipay meter in 2015. While he could not inspect the meter because it was destroyed in the fire, he stated that the fire could not have started from the easipay meter because the metres are mounted inside a fire proof casing. The easipay meter would not have cause the fire because if there were any blow outs the casing would have contained the blow out fire and it would not ignite.
    
21. He attempted to interview occupants who were present when the fire ignited but was informed that no one was home at the time.
    
22. There is no report from the fire service because they did not attend to the fire.
    
23. He prepared his report and submitted it to the Insurance Manager.
    
24. He was shown the plaintiff’s affidavit filed on 14 July 2021. In response to the claims that the fire may have been caused by a surge of excessive current from the defendant’s electrical grid, he states that the claim is wrong because if there was a surge of excessive current from the grid, there would be multiple incidents of fire to most of the properties feeding from the same grid or transformer. All the other customers feeding from the same transformer as the plaintiff never had any incidents.
    
25. His conclusions are that the fire was not caused by an electrical fault.
    
26. Collin Koi is a lawyer with the employment of the defendant. His affidavit is inadmissible and has no weight because it contains matters which are not evidence but submissions. He had no direct knowledge of the matters stated therein.
    

Issue (a) What caused the fire?

27. The legal burden of proof rests on the plaintiff. The rule is that he who asserts a wrong must prove it. The plaintiff must produce credible and admissible evidence on the source and cause of the ignition of the fire; and that the defendant was responsible.
    
28. He has not. There were no eyewitness accounts on how the fire started. He was working in Eastern Highlands during the relevant time. His evidence is based on speculation and conjecture.
    
29. There was no fire investigation done by the Fire Service and no inquest under section 17 of the Coroner's Act Chapter 32.
    
30. On the converse he has accepted without objection the evidence of Eddie Teamu. The effect of which is that he concedes that the fire to his house was not by electrical fault. The Supreme Court in Kitawal v State [2007] PGSC 44; SC927 affirmed Haiveta v Wingti (No 1) [1994] PNGLR 160 which held that evidence not challenged should be taken to be accepted. Additionally, there is no basis to reject the affidavit of Eddie Teamu as he had set out his qualifications and experience qualifying him as an expert witness. He conduct the inspection and found that three was no merit to any of the plaintiff’s claims.
    
31. The source and cause of ignition of the fire is unknown.
    

Is the evidential maxim res ipsa loquitur is applicable?

32. Both sides—the plaintiff in his statement of claim and the defendant in his defence—do not rely on the evidential maxim, res ipsa loquitur. In submissions, the defendant cited the relevant principles and contended that the requirements to invoke the principle have not been made out.
    
33. That the plaintiff has not pleaded res ipsa loquitur is of no consequence. res ipsa loquitur is a rule of evidence and does not have to be pleaded: see JY Trading Ltd v Mim Holdings Ltd [2019] PGNC 480; N8783 at [6] following Timson Noki v Fraser and Anor [1991] PNGLR 260.
    
34. To invoke res ipsa loquitur three elements must be present:
    1. there is an “absence of explanation” of the occurrence that caused the damage;
    2. the occurrence was of a kind that does not ordinarily occur without negligence; and
    3. whatever caused the occurrence was under the control of the defendant.

See Marshall Lagoon Investment Company Pty Ltd v. Ding Company Ltd (2008) N3650 at para [28-29] affirmed by the Supreme Court in JY Trading Ltd v Mim Holdings Ltd [2021] PGSC 4; SC2075

35. As to the first element, Hartshorn J said in JY Trading Ltd v Mim Holdings Ltd [2019] (supra) at [11] adopting Marshall Lagoon Investment Company Pty Ltd v. Ding Company Ltd (2008) N3650:
    

“34. As to the first of the 3 elements to be considered in determining whether the principle of res ipsa loquitur can be invoked - the occurrence in respect of which there is an absence of an explanation; in Schellenberg’s case (supra), it was stated that:

In principle, we think the relevant cause must be the immediate cause of the occurrence, which means the occurrence must be defined with reasonable precision if the principle is to operate effectively. Definition of the occurrence will determine whether the accident is of a class that does not ordinarily happen if those who have the management use proper care. Definition of the occurrence will also determine whether the cause of the occurrence has been established. To a large extent, the definition of the occurrence will depend on how much the tribunal of fact knows about the accident.”

36. Similar to JY Trading Ltd v Mim Holdings Ltd [2019] (supra), it is not possible on the evidence to determine the occurrence; where inside the plaintiff’s house did the fire start and what constituted its immediate cause. To merely say that the cause of the fire is unknown is not adequate. For the principle of res ipsa loquitur to operate, the occurrence must be defined precisely. Here, the plaintiff has not precisely defined the occurrence. There is no explanation. The plaintiff cannot invoke the principle since all three elements must be proven, and he has not established the first.
    
37. For the above reasons, there is insufficient evidence for this court on the balance of probabilities, to be able to find against defendant, in favour of the plaintiff.
    

Orders

38. The Orders of the Court are:
    1. The proceeding WS 394 of 2020 Alois Savi v PNG Power Limited is dismissed.
    2. The plaintiff shall pay the defendant’s costs on a party-party basis to be taxed if not agreed.
    3. Time is abridged.

________________________________________________________________
Lawyers for the plaintiff: Kuria Lawyers
Lawyers for the defendant: Lane Lawyers