Litina Okevi v PNG Electricity Commission and WS No 1079 of 2001; Haumeotu Iyaguni for and on behalf of himself and his family v PNG Electricity Commission (2006) N3074

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 23 June 2006
• Citation: (2006) N3074
• Docket Number: WS No 1030 of 2001
• Court: National Court
• Year: 2006
• Judgement Number: N3074

Full Title: WS No 1030 of 2001; Litina Okevi v PNG Electricity Commission and WS No 1079 of 2001; Haumeotu Iyaguni for and on behalf of himself and his family v PNG Electricity Commission (2006) N3074

National Court: Injia, DCJ

Judgment Delivered: 23 June 2006

N3074

PAPUA

[p1]

[p1] 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

11. The Defendant admits paragraph 2 of the Amended Statement of Claim.

(i) 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.

2. 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.

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