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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS. NO. 1484 OF 2014
BETWEEN
KENDO KARI
First Plaintiff
AND
ALBERT ALO KARI for and on behalf of the PUBLIC CURATOR and the ESTATE of the LATE WANPIS DIAWA
Second Plaintiff
AND
PNG POWER LIMITED
Defendant
WAIGANI: MAKAIL J
20 DECEMBER 2019; 12 FEBRUARY 2025
NEGLIGENCE – Liability – Common law tort of negligence – Claim for personal injuries and death – Electrocution of injured and deceased when ladder came into contact with high voltage line – Proof of
NEGLIGENCE – Liability – Defence of volenti non fit injuria – Contributory negligence – Proof of
ASESSMENT OF DAMAGES – Contributory negligence – Award of damages – General damages – Pain and suffering – Severe burns to hands and feet from electrocution – Award of general damages reduced by 50% – Future economic loss – Exemplary damages – Special damages – Nominal damages – Proof of
INTEREST – Award of interest – Applicable rate of interest – Defendant is PNG Power Limited and not the State – 8% interest awarded on total judgment sum – Judicial Proceedings (Interest on Debts and Damages) Act, 2015 – Section 4(1) and Section 6(1)
Cases cited
Eldik v MVIL [1994] PNGLR 467
Kandapak v The State [1980] PNGLR 573
Litina Okevi & Haumeotu Iyaguni v PNG Electricity Commission (2006) N3074
Lubbering v Bougainville Copper Ltd [1977] PNGLR 183
Mewori Patrick Paobi v PNG Electricity Commission (2004) N2511
Michael Kunumb v The State (2008) N3480
Moye v Southern Electricity Board [1962] 1 Llyod’s Rep 607
MVIL v Let (2005) SC816
Ngants Topo v The State (2008) N3478
Nimb Koim v PNG Electricity Commission (1996) N1576
Counsel
Mr J Ole for plaintiffs
Ms A Samol for defendant
JUDGMENT
1. MAKAIL, J: This is a trial on liability and assessment of damages. It arises from an action based on the common law tort of negligence.
Allegation of Negligence
2. According to the statement of claim in its amended form, the plaintiffs allege that they and two other students from Aiyura National High School were replacing old flags on the school flagpole when the aluminium ladder they were using came into contact with a high voltage (HV) power line above the flag pole. The four of them were instantly electrocuted. Two died instantly. The plaintiffs sustained serious injuries. Unfortunately, the plaintiff Wanpis Diawa died sometimes later.
3. The particulars of negligence are, the defendant failed to:
(a) attend to faults and carry out regular maintenance on its power poles and lines.
(b) conduct routine checks and/or inspections to ensure lines are safe for public.
(c) erect appropriate warning notices or signs to advise the public to keep clear of the potential dangers posed by the HV lines.
(d) insulate the HV lines.
(e) direct and relocate the HV lines, the subject of the electrocution.
Defence
4. The defendant denies liability. It alleges that the plaintiffs are wholly responsible for the injuries and death when they placed the ladder on the power pole where the HV lines ran and HV electricity struck them. It alleges the plaintiffs were negligent because they:
(a) failed to observe the presence of the power line above the flagpole;
(b) failed to seek an alternative method of replacing the flags such as replacing the ropes used to hoist or lower the flags;
(c) failed to seek proper instructions or supervision in relation to the task; and
(d) failed to take any reasonable steps to avoid an accident from occurring.
Liability
5. The first issue is liability. The plaintiffs rely on the following:
(a) Affidavit of Riemo Alo filed 10th February 2017;
(b) Affidavit of plaintiff Kendo Kari filed 17th September 2019; and
(c) Affidavit of Taylor Uhoru filed 18th September 2019.
6. As for the defendant, it relies on the following:
(a) Affidavit of James Kave filed 18th September 2019;
(b) Affidavit of Grevasius Peni filed 25th September 2019; and
(c) Affidavit of James Kave filed 25th September 2019.
Plaintiffs’ Evidence
7. In his affidavit, Riemo Alo deposes to the following matters:
8. In his affidavit, the plaintiff Kendo Kari deposes to the following matters:
9. The deponent Taylor Uhoru deposes that:
Defendant’s Evidence
10. The deponent James Kave deposes that:
11. In his affidavit, Grevasius Peni deposes that:
Law of Negligence
12. To succeed in a negligence action, the plaintiff must prove that the defendant:
13. In addition, liability will not be established if there is no causation between the wrong and harm and further, that the wrongful act or omission is too remote. Furthermore, liability will be denied if it is established that the plaintiff voluntarily assumed the risk (volunti no fit injuria). Finally, damages will be apportioned where it is established that the plaintiff contributed to his injury.
14. In the case of electrocution, I accept the plaintiffs’ submission that “Electricity is a dangerous thing and the standard of care imposed on those charged with provision of electricity services is a high one.” The passage from Charlesworth & Percy on Negligence Sweet & Maxwell, 10th Edition, (2001), at para 12-153 reinforces this proposition:
“The standard of care required of a supplier of electricity is a high one, reflecting the intrinsically dangerous nature of electricity itself. All reasonable known means of keeping the electricity harmless should be used.”
Assessment of Evidence
15. The counsel for the plaintiffs submits that the evidence of the plaintiff Kendo Kari should be accepted because he was the sole survivor of the electrocution incident. He was the person who was part of the group who lifted the ladder and, in the process, was electrocuted when the ladder was pulled by the HV force towards the HV line and came into contact with it.
16. As to the evidence of Riemo Alo, counsel submits that it should be accepted because he made general observations in relation to the deteriorating conditions of the power poles and lines around the Aiyura locality due to wear and tear over a long period of time.
17. In relation to the evidence of Taylor Uhoru, counsel submits that his evidence should be accepted as credible because he is a certified licensed electrician with 20 years of work experience.
18. As to the defence evidence of James Kave, counsel submits that it should be rejected because it is not first-hand information. This is because he was not at the scene of the incident at the relevant time to be in a position to say what actually had happened. His evidence is hearsay.
19. In addition, the Investigation Report is very brief, unsubstantiated, unscrupulous and lacked credibility.
20. In relation to the evidence of Grevasius Peni, counsel submits that it is also second-hand information because he was not at the scene of the incident at the relevant time and did not observe how the plaintiffs were electrocuted. In addition, he is in no position to verify the height of the aluminium ladder and the height of the HV lines. His evidence is hearsay.
21. Countering those submissions, counsel for the defendant strongly submits that the evidence of the plaintiff Kendo Kari and his witnesses in relation to the cause of Kendo Kari’s injury and death of Wanpis Diawa should be rejected because it is contrary to logic and common sense in two respects. First, the HV lines are not as low as asserted by the plaintiffs. They were 7 m high and are located well above the required standard height of 5.5 m.
22. Second, HV lines do not attract or pull an electrical conductor or object.
23. According to counsel, the two propositions are consistent with the evidence of the defendant’s witness James Kave whose evidence is that, in attempting to lift the ladder towards the flagpole, it came into contact with the HV lines. As a result, the electric current passed from the HV lines to the ladder and struck the plaintiffs.
24. In other words, the electrocution of the plaintiffs was not caused by the pull of the ladder from the electric current of the HV lines.
25. Secondly, counsel objects to the admissibility of the affidavit of Mr Uhoru on the ground that he is not a certified and licensed electrician and does not qualify as an expert witness. For this reason, his evidence is inadmissible.
Undisputed Facts
26. I find the following as undisputed facts:
Further Findings of Fact
27. The evidence in relation to how the electrocution of the plaintiffs Kendo Kari and Wanpis Diawa is disputed but it is how they were electrocuted that is contested. The plaintiffs’ version is that they lifted the ladder and the electric current from the HV line pulled or attracted the ladder towards it. As a result, the ladder came into contact with the HV line and the electric current passed from the HV line to the ladder and struck them.
28. The defendant’s version is that, in lifting the ladder towards the flagpole, the ladder came into contact with the HV line. As a result, the high voltage current from the HV line flowed through the ladder and struck the plaintiffs.
29. The question is how did the ladder come into contact with the HV line? Is it according to the plaintiffs’ version or the defendant’s version? The question can be decided on expert advice of electricians on what the electricity passing in the power line can do. The witness for the plaintiffs licensed electrician Taylor Uhoru agrees with the defendant’s witness James Kave that it is impossible for the HV line to pull or attract the aluminium ladder from a distance of 3 m.
30. The assertion by James Kave that a HV line does not pull or attract an electricity conductor is accepted because he is an expert- witness and a certified licenced electrician in a specialised and technical area of expertise.
31. Based on this assertion, it is the finding of the Court that it is not plausible that the aluminium ladder was pulled or attracted by the HV line. The only explanation for the contact of the ladder with the HV line is that when the aluminium ladder was lifted by the plaintiffs it came into contact with the HV line. As an aluminium ladder is an electricity conductor, the electric current passed from the HV line to it and struck the plaintiffs.
31. The plaintiff Kendo Kari and late Wanpis Diawa survived the initial contact with the electric current as they wore shoes and were spared. The other two did not wear shoes and were exposed. They were struck by the electric current and died instantly.
32. To that extent, the plaintiffs have failed to establish that the defendant failed in its duty of care to maintain the power pole at the standard height to avoid contact with them.
33. The plaintiffs rely on additional duties which they allege were breached by the defendant. These are addressed as follows:
(a) Duty to carry out line maintenance and the defendant failed to do.
I find that the plaintiffs failed to establish a breach because they failed to give evidence that there is a duty of care to carry out line maintenance. Even if there was, they failed to give evidence that the HV line was faulty and describe the nature of the fault. In the absence of such evidence, there is no evidence to prove that the HV line was faulty and required maintenance. The lack of evidence reinforces the evidence of the defendant that there was no fault in the HV line and there was no need to carry out maintenance. This is the factual distinction between this case and the cases of Nimb Koim v. PNG Electricity Commission (1996) N1576, a case of unattended irregularity of electricity supply following through water pipe and electrocuting the deceased and Litina Okevi & Haumeotu Iyaguni v. PNG Electricity Commission (2006) N3074, a case of faulty stray wire lying in a pool of water and the deceased child came into contact with the water while playing with his friends and was electrocuted.
(b) Duty to replace pins which the defendant failed to do.
I find that the plaintiffs failed to establish a breach for the same reasons as above.
(c) Duty to change cross arms which the defendant failed to do.
Again, I find that the plaintiffs failed to establish a breach for the same reasons as above.
(d) Duty to act promptly upon complaints which the defendant failed to do.
As I have found above the power lines and poles in Aiyura were old and from colonial era and were in need of maintenance. However, Mr Alo gives no evidence that the subject HV line and pole were faulty and in need of maintenance. In the absence of a direct evidence pointing to the subject HV line and pole, the concern by the long-time residents of Aiyura in relation to the wear and tear of the power lines and poles is too general and vague. It must follow that the plaintiff’s failed to establish a breach of duty of care to act promptly upon complaints and fix the alleged faulty HV line and pole.
(e) Duty not to allow or run HV open lines in populous areas which the defendant failed to do.
This is a difficult proposition to accept because logic and common sense would have it that the HV lines run over populous areas in suburbs of towns and cities and in this case the undisputed evidence is that the HV lines ran about 7 m above the power poles and posed no danger to the general public including the plaintiffs. In other words, this was not a case where the HV lines ran below the flag poles or had snapped and were lying on the ground when the plaintiffs came into contact with them. If that were so, the plaintiffs would have a strong case to hold the defendant liable as in the Nimb Koim case (supra). For these reasons, I find that the plaintiffs failed to establish a breach of duty of care in this instance.
(f) Duty to relocate the HV poles which the defendant failed to do.
This allegation is the opposite of the previous allegation. The undisputed evidence is that the HV poles carried the HV lines ran at about 7 m above the ground and posed no danger to the general public and there was no reason to relocate them. For these reasons, I find that this alleged breach of duty of care is not made out.
(g) Duty to insulate or coat the HV lines which the defendant failed to do. Mr Uhuro gave no account in relation to the HV lines requiring insulation or coat around them and the HV lines did not have insulation or coat around them. In the absence of such evidence, I accept Mr Kave’s evidence that the HV lines do not need insulation or coating because they ran above the ground and out of danger from the general public. For these reasons, I find that this alleged breach of duty of care is not made out.
(h) Duty to put notices or warning signs which the defendant failed to do. Given the finding that the HV lines posed no danger to the general public, it was not necessary to put up notices or warning signs. No breach is established.
(i) Duty to put in place other preventative measures which the defendant failed to do. This alleged breach of duty of care is ambiguous and vague. It is dismissed.
(j) Duty to lift the HV lines which the defendant failed to do.
Given the finding that the HV lines ran at a height of about 7 m from the ground, which was above the minimum height of 5.5 m, it was the ladder that was hoisted by the plaintiffs that reached the HV lines and made contact with them. Otherwise, they were at a safe distance from the general public including the plaintiffs and pose no danger. For these reasons, I find that this alleged breach of duty of care is not made out.
Volenti non fit injuria
34. The defendant relies on the defence of volenti non fit injuria. It alleges that it is not a wrong if the plaintiffs were willing parties. In relying on this defence, it must be established that first, the plaintiffs knew and secondly, willingly took the risk. As a result of the injury and death, they cannot recover damages.
35. Based on the pre-requisites of the defence of volenti non fit injuria and my findings above, I am satisfied that the defendant has established that the plaintiffs knew the risk posed by the HV lines. However, I am not satisfied that they willingly took the risk to place the ladder on the flagpole. On the other hand, I find that this was a case where when the plaintiffs hoisted the ladder to the flagpole, the ladder contacted the HV lines. To my mind, it was an accident but a fatal one because out of four people who hoisted the ladder, three died and one survived. For these reasons, I am not satisfied that the defence of volenti non fit injuria has been made out and it is dismissed.
Contributory Negligence
36. The next question is, did the plaintiffs contribute to their injuries and death? According to The Law of Torts by John G. Fleming The Law Book Company Limited 7th edn, 1987 p. 242:
“Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection, and which is a legally contributing cause together with the defendant’s default, in bringing about his injury.”
37. Some examples of contributory negligence Fleming cites in the text-book (supra) on the same page are, the plaintiff:
“.........riding a moped [a light motorcycle] without crash helmet, a car without fastening the seat belt, or with a driver known to be incompetent or intoxicated.”
38. The common law principle of contributory negligence has been adopted and applied in this jurisdiction in many cases. In Lubbering v. Bougainville Copper Ltd [1977] PNGLR 183, O’Meally J quoted a passage from Fleming Law of Torts, 4th edn, p. 226 as follows, “if a plaintiff fails to take a reasonable care of his own safety the defendant cannot rely upon that failure unless a casual connection between the plaintiff’s conduct and his injury is shown. The causal connection must exist not merely between the injury and the plaintiff’s negligent act, but between the injury and that aspect of his conduct which is negligent. If the occurrence is unrelated to the rule of prudence he violated his negligence cannot be held against him.”
39. As I have found, when the plaintiffs hoisted the ladder towards the flagpole it contacted the HV lines. What is contested is the standard height of the HV lines. The plaintiffs through their witness Mr Uhoru asserts that the standard height is 11 metres from the ground level while the defendant says that it is 5.5 metres. What is not disputed is that the HV lines were 7.2 metres high.
40. As to the location of the HV lines from the flagpole, based on [6] of the affidavit of the first plaintiff filed 17th September 2019 the HV lines “were running through the administration building and just next to the flagpoles” and the photograph marked as annexure “B” to the same affidavit of the first plaintiff and the other marked as annexure “C” to the affidavit of Mr Uhoru filed 17th September 2019, I find that the HV lines ran next or adjacent to the three flagpoles.
41. The defendant relies on Moye v Southern Electricity Board [1962] 1 Llyod’s Rep 607 and submits that that case is authority for the proposition that it is liable for any loss if it has complied with the statutory or regulatory requirements which includes the standard height requirement of 5.5 m for HV lines.
42. If the defendant’s assertion of 5.5 metres being the standard height of HV lines, it will mean that the HV lines were 1.7 metres above the standard height. It would mean that the top of the flagpoles would be less than 7.2 metres high. If the plaintiffs had extended the ladder to 9 metres, the ladder would be higher than the HV lines by 1.8 metres. To my mind, the standard height of 5.5 metres proposed by the defendant is too low for a HV line to run across to the next power pole. On the other hand, I accept the plaintiffs’ account that the standard height of HV lines is 9 metres. The height of 9 metres is logical because of the high voltage the HV lines carry from one power pole to the next and beyond. Accordingly, I find that the standard height of HV lines is 9 metres.
43. Based on the principle that a supplier of electricity should take “All reasonable known means of keeping the electricity harmless.....” (supra), I am not satisfied that a height of 5.5 metres is high enough to keep the electricity safe and harmless to the public. However, when hoisting the ladder, the plaintiffs failed to keep a proper look out for the HV lines and/or avoid the ladder contacting the HV lines. For these reasons, I find that the plaintiffs partly contributed to their injuries and death. Accordingly, I find that the defendant has made out a case of contributory negligence.
Assessment of Damages
44. Pursuant to the amended writ of summons and statement of claim, the plaintiffs seek:
(a) General damages,
(b) Future economic loss,
(c) Exemplary damages, and
(d) Special damages.
General damages
45. I was referred to Mewori Patrick Paobi v PNG Electricity Commission (2004) N2511, Kandapak v The State [1980] PNGLR 573, Eldik v MVIL [1994] PNGLR 467 and MVIL v Let (2005) SC816, informed that the plaintiffs injuries in those cases are far more severe than the first plaintiff Kendo Kari and a sum between K10,000.00 and K20,000.00 would be a reasonable award to compensate the plaintiff for pain and suffering.
46. The sole electrocution case on assessment of damages is Mewori Patrick Paobi where the plaintiff suffered nervous shock from electrocution by fractured live electricity wire. The Court noted that there were no physical injuries but physiological injuries from nervous shock and awarded K20,000.00 as general damages. The defendant did not offer any counter submissions on the appropriate sum to award.
47. Based on the photographs and medical report dated 18th September 2009 marked annexures “D” and “E1” respectively in the affidavit of Kendo Kari sworn and filed on 17th September 2019 I am satisfied that the plaintiff Kendo Kari suffered sever burns resulting in wounds on his hands and feet from electrocution and 40% functional loss. However, he did not produce a recent medical report on the update of the wounds and functional loss of his hands and feet.
48. The award in Mewori Patrick Paobi is of no assistance because that was a case on nervous shock and the plaintiff Kendo Kari does not seek damages for nervous shock. In the absence of a case on point, I have decided to be guided by awards where multiple plaintiffs suffered wide ranging injuries, some so severe to their hands and feet when they were struck by a tire wire from a footbridge as it collapsed under their weight. In Michael Kunumb v The State (2008) N3480 the plaintiff was awarded a sum of K20,000.00 for loss of three fingers and 70% loss of use of right arm. In Ngants Topo v The State (2008) N3478 the plaintiff was awarded a sum of K30,000.00 for a deformed right foot and 65% loss of use of right leg.
49. The sum of K20,000.00 and K30,000.00 were awarded seventeen years ago and I will increase the award for inflation. Then I will reduce it by 50% for the plaintiff’s contributory negligence. In the circumstances, I award a sum of K80,000.00. This sum is reduced by 50% for contributory negligence and the final sum I award for general damages is K40,000.00.
50. As I have found, the plaintiff Wanpis Diawa died from injuries suffered from the electrocution. I have not been referred to a case on assessment of damages for a death from electrocution. I am left on my own to decide an appropriate award. As I have awarded a sum of K80,000.00 less contributory negligence to the plaintiff Kendo Kari, I have decided to award a sum of K100,000.00 for the death of the plaintiff Wanpis Diawa because he is no longer alive. Then I reduce this sum by 50% for the plaintiff’s contributory negligence and the final sum I award for general damages is K50,000.00.
Future economic loss
51. I agree with the plaintiffs because they correctly concede that there is no evidence to justify an award for future economic loss and this head of damages is disregarded.
Exemplary damages
52. The plaintiffs submit that an award of K10,000.00 is appropriate for exemplary damages to punish and remind the defendant to ensure that it does not compromise the safety of its citizens. I accept this submission. As I have found, this was an accident that could have been avoided if the HV lines were either higher than the flagpoles or rerouted. For each plaintiff, I award K10,000.00 giving a total sum of K20,000.00.
Special damages
53. The plaintiffs submit a sum of K5,000.00 to K10,000.00 is appropriate for cover special damages for costs of hospitalisation, transport and food. However, special damages require strict proof and while I note the claim is sought at paragraph 8(a)-(b) (PARTICULARS OF TREATMENT) in the amended statement of claim, the plaintiffs did not produce evidence of receipts of payment for hospitalisation, transport and food. Nonetheless, I will award a nominal sum of K5,000.00 for each plaintiff because I am satisfied that they were hospitalised and received medical treatment following the electrocution. I award a total sum of K10,000.00 as nominal damages.
Interest
54. In a case where the State is a party and vicariously liable such as in the present case, the applicable pre-judgment and post-judgment interest rate is 2% based on Section 4(2) and Section 6(2) of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. In this case, the State is not a party, and I did not receive any submissions from the defendant contesting the rate of 8% sought by the plaintiffs. Accordingly, interest is awarded at the rate of 8% on the total judgment sum from the date of issue of writ to summons to date of judgment and until final settlement pursuant to Section 4(1) and Section 6(1) of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
Costs
55. Finally, the defendant shall pay the plaintiffs’ costs of the proceedings, to be taxed, if not agreed.
Summary
56. A summary of the awards are as follows:
(a) Plaintiff Kendo Kari
General damages K40,000.00
Future economic loss K Nill
Exemplary damages K10,000.00
Nominal damages K 5,000.00
---------------
Total K55,000.00
---------------
(b) Plaintiff Wanpis Diawa
General damages K50,000.00
Future economic loss K Nil
Exemplary damages K10,000.00
Nominal damages K 5,000.00
---------------
Total K65,000.00
---------------
57. Add K55,000.00 and K65,000.00 gives a total judgment sum of K120,000.00.
Order
58. The orders are:
1. Judgment on liability is entered against the defendant.
________________________________________________________________
Lawyers for plaintiffs: Rake Lawyers
Lawyers for defendant: In-house Counsel
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