Harry Morrell v Jamaica Public Service Company Ltd
| Jurisdiction | Jamaica |
| Judge | Dunbar-Green, J |
| Judgment Date | 16 May 2016 |
| Neutral Citation | [2016] JMSC Civ 81 |
| Docket Number | IN THE CIVIL DIVISION CLAIM NO. 2010 HCV 4354 |
| Court | Supreme Court (Jamaica) |
| Date | 16 May 2016 |
[2016] JMSC Civ. 81
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Dunbar-Green, J
IN THE CIVIL DIVISION CLAIM NO. 2010 HCV 4354
Mr. Rudolph Smellie for Claimant
Mrs. Symone Mayhew for Defendant
CONTRACT — UNDER-REGISTRATION OF ELECTRICITY CONSUMPTION — DISCONNECTION OF ELECTRICITY CLAIMANT COMMENCING ACTION AGAINST DEFENDANT FOR BREACH OF CONTRACT AND DEFAMATION — CLAIMANT SUFFERING LOSS RESULTING FROM REWIRING OF PREMISES — CLAIMANT CONTENDING DEFENDANT'S BREACH OF DUTY CAUSED LOSS — WHETHER DEFENDANT BREACHED DUTY — WHETHER BREACH CAUSED LOSS — WHETHER CLAIMANT ENTITLED TO DAMAGES FOR PHYSICAL INCONVENIENCE AND MENTAL DISTRESS — WHETHER DEFENDANT ENTITLED TO PAYMENT FOR UNDER-REGISTERED CONSUMPTION — ASSESSMENT OF DAMAGES.
On 27 th May 2010, two technicians employed by the Jamaica Public Service Company (JPS/defendant) went to the claimant's premises at Lot 377, Wisco Avenue, Shrewsbury Housing Scheme in the parish of Westmoreland (the premises), in order to investigate a noticeable and significant reduction in the electricity consumption which was being recorded. They were admitted to the premises by the claimant's mother-in law.
On completion of the inspection, the electricity supply was disconnected based on a determination that the under-registration of the electricity consumption was caused by an illegal bypass which rendered the premises unsafe.
Consequent on the disconnection, the claimant spoke to various employees at JPS and was informed that in order for the electricity to be reconnected, the premises needed to be re-certified and the outstanding bill paid.
The claimant engaged a government electrical engineer to inspect the premises and no bypass was found. However, the inspector found other irregularities which required certain electrical works to be done before there could be recertification.
On 8 th September 2010, the claimant filed an action against the defendant for breach of contract. He also sought a mandatory injunction compelling the defendant to restore his power supply.
In Second Further Amended Particulars of Claim, filed on 1 st December 2014, the claimant sought damages for malicious falsehood, aggravated and/or exemplary damages and interest.
Special Damages were claimed as follows:
i. Government Electrical Inspector's Fee $1000
ii. Fee for electrician to assist GEI $100,000
iii. Cost of First Engineer's Analysis Report US$3000
iv. Cost of Second Engineer's Report US$2000
v. Cost of drilling wall for re-certification $30,000
vi. Cost of removing metre socket from wall for re-certification $30,000
vii. Cost of removing cables between pothead and metre $17,000
viii. Cost of drilling wall around main breaker panel for re-certification $50,000
ix. Cost of removing main breaker panel $35,000
x. Cost of removing cables $25,000
xi. Cost of new metre poll $30,000
xii. Cost of transporting and planting poll $20,000
xiii. Cost of installing metre socket on poll with main cables $50,000
xiv. Cost of installing new breaker panel $48,000
xv. Cost of installing new cables between pothead and draw box $35,000
xvi. Total cost of new electrical material (panel, breaker, wires etc.) $130,000
xvii. Cost of construction material to rebuild drilled walls $60,000
xviii. Cost of labour for rebuilding walls $40,000
xix. Cost of licensed electrician for mandatory re-certification $25,000
xx. Cost of repairing damaged furniture $60,000
xxi. Cost of transportation $45,000
xxii. Cost of phone calls $15,000
xxiii. Cost of hotel accommodation 19 th to 30 th US$9000
TOTAL US$14,000 + $871,000
By way of Amended Defence and Counter-Claim filed 15 th March 2011, the defendant denied that the claimant was entitled to the reliefs sought. The defendant counter-claimed for the sum of $2,910,760.75 being the total adjustment to the claimant's account as a result of electricity consumed and not registered for the period 29 th November 2004 to 27 th May 2010. The defendant also claimed interest and General Consumption Tax.
Electricity was restored to the claimant's premises consequent on a court order dated 27 th September 2010.
The parties agreed the following documents and they were admitted into evidence as exhibits 1–21:
Copy of JPS metre change document dated 27/5/2010.
Copy of letter from claimant to Mr. Paul O'connor (Government Electrical Inspector) dated 2/6/10.
Copy of Historical record of metered electrical usage.
Copy of letter dated 19/7/10 from claimant to JPSCO.
Copy of letter dated 15/7/10 from defendant to claimant.
Copy of e-mail dated 4/8/10.
Copy of e-mail dated 9/8/10.
Copy of adjusted bill dated 19/8/10.
Copy of report on test metre.
Copy of standard terms and conditions.
Copy of re-certification dated 7/7/10.
Exhibit 12: Copy of letter from defendant to Claimant dated 29/9/10.
Exhibit 13: Copy of defendants back billing procedures
Exhibit 14: Copy of JPSCO Guidelines
Exhibit 15: Copy of GOJ official receipt.
Exhibit 16: Copy of service manual of Panasonic room air-conditioners.
Exhibit 17: Receipt dated 19 th September 2010 from Bourbon Beach Resort for the sum of US$9,000.
Exhibit 18: Invoice dated 30 th September 2010 from Bourbon Beach Club in the sum of US$9000.
Exhibit 19: Letter from Mr. Vincent Bailey to Claimant dated 14/7/10.
Exhibits 20A-C Wires taken from the socket of claimant's premises on 9 th June, 2010.
Exhibit 21: Expert Report of Mr. R. Dacosta.
The Witness Statements of Harry Morrel filed 11 th April 2012 and 28 th November 2013, with amplification, were ordered to stand as his evidence in chief. Parts of paragraph 32 of the statement filed 11 th April 2012, were redacted as being hearsay, prejudicial and of no probative value.
The claimant's evidence was that he had built a two bedroom house under the supervision of a building officer from the NHT and lived at the premises since February 2002. At the time of moving in he had entered into a contract with the defendant for electricity supply. This supply was uninterrupted until 27 th May 2010.
Prior to 27 th May 2010 he had never been contacted by the defendant about any problems with his electricity supply. However, he had noticed that the electricity bills for the premises were unusually low in the latter part of 2009 and the early months of 2010. He mentioned this to a metre reader in or around March or April 2010.
In a conversation with Mr. Daley, an agent of the defendant, on 27 th May 2010, he was told that the electricity had been disconnected because of an illegal connection. He requested that the electricity be restored and that Mr. Daley await his arrival in about thirty minutes. The requests were denied and he was told that a card would be left at the house.
At approximately an hour after speaking with Mr. Daley, the claimant said he went to the JPS Paradise Office and spoke with Ms. Sarah Nankoo who informed him that he needed to pay a ‘big bill’ before the electricity could be restored.
The claimant said the bill amounted to two million, eight hundred and ninety six thousand, nine hundred and fifty eight dollars and ninety five cents ($2,896,958.95). He refused to sign a payment agreement and rejected the allegation that an illegal or unsafe connection was found at the premises. He also said he told Ms. Nakoo that he was willing to demolish the entire house in order for the JPS to show him evidence of an illegal connection.
Mr. Daley, who was present, refused to return to the premises with him but said that the illegal connection was in a concrete column.
Ms. Nankoo then told him that a licenced electrician would have to ‘pass the house’ before the electricity could be reconnected.
The claimant said he told Ms. Nankoo that he had noticed a decline in the consumption of electricity at his home and that he had mentioned it to a metre reader.
He returned to the office the following day and was told that no one was available to visit his home. He made a third visit on 2 nd of June 2010 and spoke with Mr. Pete Drummond, a supervisor. He renewed the request for a technician to attend the premises but was again told that no one was available. Mr. Drummond told him that it was best to ‘work out a compromise’ since it could not be determined whether anything had changed at the house since the inspection.
The claimant then contacted the Government Electrical Inspectorate Department (GEID) and paid a fee of $1,000.00 at the Tax Office for a special inspection to be done at his house.
He returned to the JPS office on 8 th June, where he repeated his denial of the illegal connection. He was told that neither Mr. Daley nor any other technician could visit at that stage. No explanation was given as to why this was so.
On 9 th June 2010, Mr. Vincent Bailey, a government electrical inspector (GEI), visited the premises accompanied by his assistant, along with Mr. Ian Beckford, an electrical technician, who had been engaged by the claimant.
The claimant said the costs associated with Mr. Beckford's services amounted to $117,000: $100,000 for his attendance over five (5) days ($60,000 of which was for four aborted days) and $17,000 for helping to remove cables.
On the instruction of Mr. Bailey, the claimant said he pulled out each of the wires which ran between the metre socket and the pothead. These were easily removed without any damage to the walls. The claimant also observed the GEI as he carried out different tests in relation to the breaker panel. The men left the premises with the wires.
The claimant...
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