Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Lei v Tonga Electric Power Board [1998] TOLawRp 2; [1998] Tonga LR 8 (15 January 1998)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

C 829/96

Lei

v

Tonga Electric Power Board

Finnigan J
1, 2, 3, and 5 December 1997; 15 January 1998

Tort — no person has any legally protected interest in the life of another Damages — pecuniary loss caused by death of deceased

On 28 August 1995 a motor vehicle broke the pole holding the line that supplied power to the plaintiff’s house. This caused the line to break and power to be cut off in the plaintiff’s house and the neighbour’s house. The plaintiff worked for the defendant Power Board and when he came home he disconnected the electricity. Two employees of the defendant arrived and re-erected the broken pole and joined the wires with a piece of smaller wire. The plaintiff made a connection of the new wire to the existing line. After helping with the testing of the soil, the plaintiff then left to go elsewhere. The defendant’s senior linesman and his assistant reconnected the line, the assistant made a test of the earth and they both left. The plaintiff’s wife resumed her interrupted clothes washing, using her electric machine, and was immediately electrocuted. She died leaving seven children between 3 and 15 years of age. After she died the workers returned three more times to finally correct the fault. The plaintiff claims damages solely in tort.

Held:

1. The death of the plaintiff’s wife was caused wholly by the negligence of the defendant’s employees.

2. There is a rule of the common law that no person has any legally protected interest in the life of another so this claim cannot be brought in tort at all. This claim is simply before the Court only be reasons of concessions which the defendant has generously made.

3. The Fatal Accidents Act provides that damages may be recoverable to compensate for the pecuniary loss caused to the dependants by the loss to them of the deceased as dependants, not as grieving relatives.

4. Defendant to pay damages to the plaintiff of $20,000 for loss of economic support and to pay damages as set out to each of the children. The defendant is also to pay the plaintiff’s costs.

Cases considered:

Admiralty Commissioners v SS Amerika [1917] AC 38; [1916-17] All ER Rep 177

Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601; [1942] 1 All ER 657

Statutes considered:

Civil Law Act Cap 25

Fatal Accidents Act Cap 34

Tonga Electric Power Board Act Cap 93

Regulations considered:

Electric Power Board Regulations

Counsel for plaintiff: Ms Tonga
Counsel for defendant: Mr L Foliaki

Judgment

This is a claim for damages based on the alleged negligence of the defendant’s employees, which is said to have caused the death of the plaintiff’s wife. The plaintiff sues on his own behalf and on behalf of the seven children of the marriage. At the time of the events in question those children were aged between 3 (the youngest) and 15 (the eldest).

The Statement of Claim pleads (at para 12) negligence of four general but similar types, particularly that the employees concerned while carrying out repair work wrongly connected electrical wires, ie, phase to neutral and neutral to phase and in doing so, among other things failed to exercise proper care and attention. It pleads further that negligence is proved by the facts themselves.

Most of the relevant allegations, particularly those at para 12, are denied by the defendant in its Statement of Defence and Counterclaim, and the defendant pleads also that the plaintiff himself contributed to what occurred by assisting in the work in question without proper authorisation, by failing to take proper and any care in doing what he did, by failing to use or properly use the equipment provided for the work, by interfering with the work of the proper workers sent by the defendant to do the work, and by failing in particular to take proper and reasonable precautions to ensure that the wires had been properly connected after the repair had been done.

The defendant relies also on s 72 of the Tonga Electric Power Board Act Cap 93, which provides that no consumer shall have any claim against the defendant in the event of any failure of the supply of any energy through accident, drought, or other unavoidable cause.

It is important to state at the outset that this claim should not have been brought in tort, ie, at common law, at all. This claim is prohibited by the common law. It should have been a statutory claim under the Fatal Accidents Act Cap 34. Neither party pleaded that in their pleadings. The case proceeds only by the defendant’s concession in submissions that it may be dealt with as if it had been properly brought.

The Facts

The plaintiff and his family live on a side road. Electricity comes to their house by a line connected to the main supply which runs along the main road. The point of connection is called pole 2086. In the side road there are three poles; pole 18 from which electricity runs onto a property occupied by a store, pole 19 beyond that from which electricity runs to a house occupied by a family called Tovi, and pole 20 beyond that, from which electricity runs to the plaintiff’s house. The electricity is supplied by the defendant.

On 28 August 1995, while the plaintiff’s wife was using the washing machine, a motor vehicle broke pole 19. When it fell the line broke between pole 18 and pole 19. Power was still running to the store, but was cut off in Tovi’s house and in the plaintiff’s. The plaintiff works for the defendant as it happens. He came home from work and found the broken pole and broken wire. He immediately disconnected the electricity so that the broken wire ceased to be a danger. He did this by climbing pole 2086. On that pole the side-line originated, and it consisted of two wires twisted together to form one: of the two wires one carried electricity to the store and the two houses (the “phase” wire) and the other carried the electricity back to the generator (the “neutral” wire). The plaintiff stopped the flow of all electricity down the side road, by disconnecting the phase wire at pole 2086.

Soon two employees of the defendant arrived. The broken pole, shorter now, was then re-erected and because it was shorter the two ends of the broken wire between pole 19 and the previous one (pole 18) did not meet. A short piece of new wire, supplied by the defendant’s two workers, was used to connect them. The new wire was made up of coloured smaller wires, including red for “phase”, so that at each end one could easily tell which was phase and which was neutral. This however was of no practical use, because the original twisted wire had no colours and from looking at them nobody could tell which was the phase wire that conveyed the electricity to Tovi’s house and to the plaintiff’s.

The plaintiff made a connection of the new wire to the existing line, both phase and neutral, at the break nearer to pole 19. The defendant’s senior linesman connected the other end of the new piece to the other end of the broken wire. There was no way to know at that time whether the red “phase” wire in the new line was re-connecting the broken phase wire in the older twisted line, or was connecting the phase wire to the neutral wire.

The defendant’s employees and the plaintiff addressed that question immediately. The defendant’s senior linesman climbed pole 2086 and reconnected the phase wire there, so that electricity immediately flowed down the side line. The other employee then conducted a test. He tested the soil around the store. The test showed electricity in the soil. The plaintiff was not satisfied, and with his own test meter tested the soil at the store. He was satisfied there was a mistake, so the senior linesman switched the wires at pole 2086. The soil was then tested at the store and was found to be without electricity. The plaintiff then left for he had business elsewhere.

The line from pole 19 to Tovi’s house had earlier been disconnected by the senior linesman at pole 19. He and his assistant then reconnected that line and the assistant made a test of the earth at Tovi’s house. The assistant said the soil was alright, and they both left.

After this the plaintiff’s wife resumed her interrupted clothes washing, using her electric machine, and was immediately electrocuted. She died, but before she died she called to her children to disconnect the power. She was at that time 40 years of age.

Conclusions from the Facts

From those facts it is not difficult to draw a conclusion that the defendant’s workmen were negligent. No other major relevant facts were proved in evidence, other than some I shall shortly mention. I shall refer later to some other evidence but these facts presently stated would probably on their own have been enough by themselves to prove negligent breach of the defendant’s duty of care to the plaintiff’s wife. She, after all, waited in trust while the defendant’s workmen restored electricity to her house and when they did so she immediately resumed her washing and, because the repair was done incorrectly, the electricity killed her.

However, there was other evidence, and I must consider all of the relevant evidence.

After the plaintiff’s wife was electrocuted, the defendant’s workmen returned to the scene, not once but two more times. The first time, the senior linesman disconnected the lines at pole 2086 and reversed them. This caused the test of the soil at the plaintiff’s house to show no electricity, but it caused the soil and building of the store once more to become alive. That fact was discovered later by an independent witness, a former trained electrician who had a tester.

The defendant’s workmen then came a third time and, in a way that I do not fully understand, corrected everything so that both the store and the plaintiff’s house were properly connected.

It seems that the explanation might lie partly in the state of the earth rod at the plaintiff’s house. An earth rod is a steel rod driven into the soil, and to it is fastened a wire that conducts safely into the soil any excess electricity that might escape from any electrical appliance in the house if there is a wiring fault. If any electricity is wrongly present in an appliance it must flow into the soil, and if it has no other route 150 it might flow to the soil through the body of a person who touches the appliance and is touching the soil or connected to the soil. If however, an earth rod is connected to the wires in the house, dangerous electricity will flow harmlessly through that rod down into the soil.

When the defendant’s senior linesman went to the plaintiff’s house for the first time, which was on his second visit to the scene, after the plaintiff’s wife had been electrocuted he found the earth wire at the plaintiff’s house was not connected to the earth rod. He gave evidence that he knew the wires had become reversed when he took hold of the earth wire and tapped it on the earth rod. This caused sparks, and after he reversed the wires again at pole 2086, tapping the wire on the rod caused no sparks.

In evidence this workman acknowledged that in leaving the plaintiff’s house wrongly connected after his first visit, he had not fully given effect to his responsibilities. On his second visit, his work caused the store to become live and required his urgent recall for a third visit to correct the electricity flow at the store. It is clear that on the second occasion just as on the first he had not fully given effect to his responsibilities.

Any doubt about that, was dispelled by his senior officer, now the General Manager of the defendant, who also gave evidence. His evidence was that the defendant’s workmen had made errors which caused the wrong connection and had made an unreasonable assumption in leaving the plaintiff’s house untested at their first visit. He said that there had been several shortfalls and breaches of procedure which had resulted in their leaving that house incorrectly connected. His evidence was detailed.

Light is thrown on all this by not only his explanations but also those of the independent former electrician. The latter witness told the Court that if the phase and neutral wires in a house were switched, electricity will still flow unless there is an earth connection. If there is an earth connection at the plug and an appliance is switched on, then the electricity will flow to the soil and a fuse at the switchboard will disconnect and stop electricity flowing. It is the main purpose of the iron rod and of the wire fastened to it to act as a safeguard, and if there is some error in the current then the wires will short-circuit the current to the soil. The fuse would burn out or turn off and the appliance — such as the washing machine in the present case — would cease operating. If there is no earth connection the appliance will continue to operate in a dangerous condition, and earthing of the current may occur through that appliance and any person touching it.

This evidence raised a serious question whether there may have been some contributory negligence by the plaintiff himself in allowing his earth rod to become disconnected. I mention this as a matter that I have noted, but it is not part of the defendant’s pleading of contributory negligence nor is it raised in submissions and I take it no further.

From all of this, clear conclusions are now possible. In reaching these conclusions I rely only on the evidence but I am guided by the comprehensive, written submissions made about the facts by counsel for both parties. These submissions, have become the fully considered basis of what I am about to say.

First, there was on the facts and on the pleadings and submissions, no contributory negligence by the plaintiff. The state of his earth rod connection is not part of the case against him and I draw from it no conclusions which are unfavourable to him. His part in proceedings was to connect one end of the new wire to the broken wire between poles 18 and 19. He did this first. The correctness of his work was neutral until the senior linesman made his connection at the other end of the new piece of wire. It was for the latter to ensure correctness. This is proved by the actions of the senior linesman himself, who allowed the plaintiff to go, ie, saw no further responsibilities for him, after he had himself completed joining the broken wire and reconnected the plaintiff’s disconnection at pole 2086 and, after the testing at the store, reversed that connection. It was for the senior linesman, and his assistant, after the plaintiff was no longer required, to complete the connections to all three properties on the side road and to test that the three connections were correct. The events leading to not one return visit but two showed that what caused all the problems starting with the electrocution, were caused by first, the reconnections at pole 2086 and pole 19 and second, the failure of the defendant’s two workmen on duty to test properly at the store, at Tovi’s house, and at the plaintiff’s.

Was there negligence by the defendant, as pleaded in para 12 of the Statement of Claim? I have concluded that there clearly was, and I rely upon the candid realistic and helpful submissions of Mr Foliaki on behalf of the defendant as well. He has acknowledged, correctly in my view, that the defendant owed a duty of care to the plaintiff’s wife, to exercise proper care in reconnecting the electrical wires that led to her house. He has acknowledged further, also correctly in my opinion, that this duty of care was breached in the present case by the defendant’s employees’ negligent acts. He has acknowledged again, also correctly in my view, that the death of the plaintiff’s wife was caused by the incorrect connection made and by the failure to test at the plaintiff’s residence for correct connection.

The evidence leads, in the view which I have reached after carefully considering counsel’s submissions, to one conclusion only. The death of the plaintiff’s wife was caused wholly by the negligence of the defendant’s employees, as pleaded in paragraph 12 of the Statement of Claim.

The Statutory Defence

I turn to the plea and the submissions that the defendant, as a first ground of defence, is immune from this claim by reason of s 72 of the Tonga Electric Power Board Act Cap 93. In Mr Foliaki’s submission he urges the Court to read s 72 in conjunction with clause 30 of the Electric Power Board Regulations as to conclude that in the words of the Act, Parliament’s intention was broad and not confined to liability for failure to supply.

I do not think it necessary to set out the words of those provisions.

In reply, Ms Tonga has submitted that s 72 is clearly on its face intended to exempt the defendant from claims arising out of a failure to supply which has been caused by acts of nature. She relies upon the words “other unavoidable cause”.

In my view Ms Tonga’s submission is correct. The words of s 72 on their face carry a clear and unmistakable meaning. The Court cannot construct anything out of uncertainty, because there is no uncertainty. The words are not ambiguous, they are not unclear. The Regulation, as delegated legislation, does not help interpret what Parliament said before the Regulation was made. The essential concept in s 72 is a failure to supply. The present cause of action does not arise out of failing to supply in any event, but out of supplying negligently. In my view this defence cannot prevail.

The General Defences

Mr Foliaki submits that there can at law be no successful action in tort which is based on negligence when the loss claimed has been caused through the killing of another. He cites two authorities for that proposition. He then argues that to have a viable cause of action the plaintiff must rely on the Fatal Accidents Act Cap 34. He concedes that the failure to plead that Act is not fatal to the plaintiff’s case because he has met its requirements, but submits that the plaintiff’s remedies are limited by that Act. In arguing for those limits he relies upon the measurement of damages under a similar English statute in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601; [1942] 1 All ER 657.

As for this defence, Ms Tonga submits in reply that it is not necessary for the plaintiff to plead the law and that in any event the defendant’s concession that the plaintiff has met the requirements of the Fatal Accidents Act disposes of any defence there might be in this point.

To the submission that there can be no claim in tort arising out of negligence when the loss claimed has been caused by the killing of another, Ms Tonga did not reply.

The Damages Claims

The damages claimed are claimed solely in tort, and are itemised in para 15 of the Statement of Claim. They are as follows:

a) House keeping expenses for the children until the younger child attains the age of 18 years of age — $5,800;

b) Compensation for pain suffering for each child $600 ($42,000);

c) Lost of consortium $16,000;

d) Pain and suffering for the plaintiff $16,000;

e) Disturbance and disruption to life of plaintiff;

f) Lost of economic support $20,000; and

g) Punitive or general damages $40,000.

WHEREFORE THE PLAINTIFFS PRAY FOR:

i) Judgment in the sum of $202,000;

ii) The costs of and incidentals to these proceedings; and

iii) Such further or other Orders as this Honourable Court

may deem just.

Very little was added to these pleadings or the plaintiff’s evidence by Ms Tonga in submissions. She has simply submitted that the damages claimed are justified and should be accepted.

All of the claims were challenged in submissions by Mr Foliaki, and in Ms Tonga’s submissions these challenges were ignored. The only issue on which counsel joined argument was a new claim, for funeral and wake expenses of $20,000 which was not included in the claims pleaded. Mr Foliaki’s submission that this claim cannot be part of the case has not been answered, and Ms Tonga responded only on a topic not mentioned even in evidence, whether in Tonga a grieving widower pays these expenses or whether the extended family contributes. I cannot weigh those submissions without evidence.

The Law

At this point I must ask myself, what is the law in Tonga that governs this claim? Mr Foliaki has made submissions which I have summarised above. Ms Tonga has not ventured into the law at all. No cases previously decided on such claims in Tonga have been drawn to my attention.

From my own research I am satisfied that Mr Foliaki is largely correct and that this claim is simply before the Court only by reason of concessions which he generously has made. This claim cannot be brought in tort at all. There is a rule of the common law that no person has any legally protected interest in the life of another. That rule has been criticised, and I cannot pass on without reflecting on the pungent comment on that criticism by Lord Parker of Waddington in Admiralty Commissioners v SS Amerika [1917] AC 38; [1916-17] All ER Rep 177, (a case to which Mr Foliaki referred) at pp 42 and 43:

“If it were any part of the functions of this House to consider what rules ought to prevail in a logical and scientific system of jurisprudence, much might no doubt be said for this criticism ...

This House, however, is bound to administer the Law as it finds it. The mere fact that the Law involves some anomaly is immaterial unless it be clear that the anomaly has been introduced by erroneous legal decision ...”

As His Lordship went on at length to show, the rule indeed arises out of no erroneous legal decision. It is sound law. It is still the law. It stands against the claim that has been made in the present case.

Any claim therefore that the plaintiff may have against the defendant must rest elsewhere. In Tonga, as in England, it rests on a statute that has created exceptions to the common law rule and established the basis for claims arising out of a death. The statute in Tonga is the Fatal Accidents Act Chapter 34. That statute provides, at ss 2 and 3:

2. Whensoever the death of a person shall be caused by wrongful act, negligence or default and the act, negligence or default is such as would (if death had not ensued) have entitled the party injury (sic) to maintain a civil action and recover damages in respect thereof, then in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to an offence under the Criminal Offences Act.

3. Every such action shall be for the benefit of the wife, husband, parent or legitimate child of the person whose death shall have been so caused, and shall be brought in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as they may think fit having regard to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought: and the amount so recovered in damages shall be divided amongst the parties for whose benefit the action is brought in such shares as the court may direct.

It is clear from the authorities that the cause of action given to the plaintiff by those provisions is a statutory exception to the common law prohibition on fatal injury claims. It is a right to claim, as a dependant and on behalf of the deceased wife’s other dependants, for the loss of their dependency on her. It is not a survival of any personal damages claims she might have had if she had lived. It is not a right to sue for the pain and suffering that he and the children have endured in their bereavement. It is not even a right to sue for recovery of the funeral expenses. These last two can be recovered in England because the English Statute, at ss 1A and 3, provides that, but those provisions are not in force in Tonga pursuant to s 4(a) of the Civil Law Act Cap 25 to which Mr Foliaki referred me. Damages recoverable under the Act are to compensate for the pecuniary loss caused to the dependants by the loss to them of the deceased as dependants, not as grieving relatives. If the widower (the plaintiff here) was a dependant, he may recover such damages. The other dependants (the children here) likewise.

The pecuniary loss suffered need not be only money which the dependants received or reasonably expected to receive. It may also include the loss of services that had been rendered by the deceased — though not compensation for the pain caused by that loss — so long as the loss can be expressed in terms of money value. A husband can claim therefore for the loss of this wife’s services in the home so far as these can be valued in money, and the children may likewise be compensated for the loss of the daily care and work which their mother gave them. They cannot gain compensation for her love, care, and affection, now gone for ever, but they can recover money for benefits lost which are able to be calculated in money terms.

The Court has to make a difficult assessment of what, but for the death of the deceased, would have happened in this family in the future, guessing (for want of a better word in the present case) what would have happened in the future if the deceased had continued to live and to provide the (calculable) benefits that now are lost. In particular, in respect of each dependant the court must try as best it can to assess how long dependency would have continued.

The Statute does not distinguish between special damages (which usually are particularly pleaded and proved) and general damages, which may be implied and need not be particularised or even quantified. There is clearly however no way of suing under the statute for punitive or exemplary damages. Any dependant claimant may join in the claim but only to recover some financial loss, and if he or she cannot show some financial loss no action should be commenced.

The Claims in the Present Case

Mr Foliaki has accepted that the claims may be accepted as claims under the Fatal Accidents Act Cap 34. He has submitted that the plaintiff may nonetheless recover only if the Court accepts that the deceased earned an income and that, if the Court accepts that her earnings were $3,000 per year as the plaintiff claimed in evidence then that sum multiplied by her presumed life expectancy is the limit of what may be awarded.

That in my view is an acceptable even commendable approach, but the submission in my view is an unnecessarily restrictive view of the Law. I am sure that a Court in a case such as this may look at the needs of the dependants, each in turn, to see what was supplied by the deceased and what is now lost. If what has been lost can be assessed in money terms then monetary compensation should be awarded. I now turn to the plaintiff’s claims.

Claim a) is for $5800, as housekeeping expenses for the children until the youngest reaches 18 years of age. Mr Foliaki has generously assumed this to be intended as an annual figure; that is not the claim either in the pleadings or in the plaintiff’s submissions, but I will proceed on that common-sense basis.

Claims b) to e) inclusive and g) are outside the parameters of what may be claimed.

Claim f) is for $20,000 for loss of economic support. Again Mr Foliaki has generously assumed a common-sense basis for this claim, as being a lump sum drawn from the evidence that the deceased contributed in money to the family $3,000 per year. He referred to the principles stated by Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601; [1942] 1 All ER 657, so I assume he accepts that the figure allows for multiplication of $3,000 by a presumed life expectancy, with deduction from the resultant total for contingencies. I believe that has to be the approach. Assuming a life-expectancy of 20 years and a resultant total of $60,000.00 the contingencies deduction of $40,000 seems excessive to me, but $20,000 is all that is claimed and I believe that this amount can be easily supported without further mathematical analysis. I would award that amount.

I return to claim a), which is for $5,800 per annum until the youngest child, 3 at the time of the death, turns 18. That is a period of 15 years. During that period each of the other children will have passed 18 and, by definition in the claim itself, will have ceased dependency on their mother, one after the other.

This claim is entirely unsupported by direct evidence. The only support for it is from assumption and deduction. From the plaintiff’s evidence that he earns, and presumably earned at the time of the death, $7,400 per year, which he spent on his and his family’s needs, one may deduce that the cost of supplying the children’s needs may have been $5,800 per year, or about 78% of his income. If his wife’s earnings, which he said were spent on family needs, were $3,000 per year and are added to his, then $5,800 is about 56 % of the total family income.

I would not dispute that in money terms the cost of replacing what the children have lost could be represented by a sum of $5,800 per year at the time of the death. It is as reasonable an assessment as any that one might imagine and it does arise directly out of the evidence. It cannot however be the figure of loss in each year but must be reduced as each child in turn attains 18 years.

From the evidence, the eldest child Meleane turned 18 on 13 November 1996, 1 year 2 1/2 months after her mother died.

The next child ‘Alamita will turn 18 on 9 April 2000, ie, after 4 years 7 1/2 months.

The next child Sitiveni will turn 18 on 10 August 2001, ie, after 6 years.

The next child Mele Vanika will turn 18 on 9 May 2003, ie, after 7 years 8 1/2 months.

The next child Fifita Ma’u Lolo will turn 18 on 20 February 2006, ie, after 10 years 6 months.

The next child ‘Omanisita will turn 18 on 13 December 2007, ie, after 12 years 3 1/2 months.

The youngest child Malia Falaviena will turn 18 on 15 June 2010, ie, after 14 years 10 months.

Taking the amount of calculable loss of each child to be 1/7 of $5,800 per year until 18, the amount for each child is $829 per year in rounded figures.

On that basis the total calculable loss, in money terms, for each child is as follows:

These calculations yield respectively the following sub-totals:

These added produce a sum total in claim a) of $47,518.28.

Conclusion

In my view of the law and of the evidence, and by my calculation, the plaintiff has made out a claim on his own behalf in the sum of $20,000 and on behalf of the children of himself and the deceased in the sum of $47,518.28, the latter sum to be awarded for each of the children respectively in the lesser amounts that I have set out. I adopt the precedent which Ms Tonga appended to her submissions and order that the defendant pay damages to the plaintiff in the sum of $20,000 and further that the defendant pay damages to each of the children of the plaintiff and the deceased the following sums:

and further I order that the damages payable to the minor children, ie, all of the said children except Meleane, be paid into Court and the said funds be invested for the benefit of the said minor children pending further order. And further I order that the defendant do pay the plaintiff’s costs which if not agreed are to be taxed by me.