Jamaica Public Service Company Ltd v Marcia Haughton

• Jurisdiction: Jamaica
• Judge: PANTON, P. , COOKE, J.A. , HARRIS, J.A.
• Judgment Date: 20 December 2007
• Neutral Citation: JM 2007 CA 80
• Judgment citation (vLex): [2007] 12 JJC 2007
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2007

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MR. JUSTICE COOKE, J.A THE HON. MRS. JUSTICE HARRIS, J.A

BETWEEN

JAMAICA PUBLIC SERVICE COMPANY LIMITED

APPELLANT

AND

MARCIA HAUGHTON

RESPONDENT

Mr. David Batts and Ms. Daniella Gentles, instructed by Livingston, Alexander & Levy for the Appellant.

Mr. Raphael Codlin, instructed by Raphael Codlin and Company, for the Respondent.

NEGLIGENCE - Fire - Destruction of business - Whether breach of duty of care

PANTON, P.

1 I agree that this appeal should be allowed. The learned trial judge, in my view, failed to give due weight to the evidence of the experts. That evidence was compellingly favourable to the appellant, and to the justice of the case.

COOKE, J.A.

• 1. Let me state at the outset that this appeal should be upheld, the judgment of the Court below set aside and judgment entered for the appellant.

• 2. The respondent, on the 30 ^th November, 2005 succeeded in an action in negligence against the appellant for loss as a result of a fire which destroyed her business place and its contents. The business place was described as "Scrap's Mini Mart and Bar" and it was located in Sandy Bay in the parish of Clarendon. There was an award of $2,750,000.00 in damages.

• 3. For the respondent to be successful in the cause she had to establish:

  • (a) That the appellant, the supplier of electricity, had a duty of care to her that in providing its service it would exercise the care expected of such a utility company involved in that business activity.

  • (b) That there was a breach of that duty; and

  • (c) That as a consequence of that breach her business place was consumed in flames.

• 4. The evidence tendered on behalf of the respondent was within a small compass. This evidence which will now be recounted is taken from the witness statements.

  • (A) Keith Brown, a taxi operator said:

    "3. On the 2 ^nd October, 1996 at about 2:30 a.m. whilst I was travelling from May Pen towards Old Harbour, as I approached a bridge which is about twenty-five (25) yards from Miss Haughton's business place, I saw a fire running on the Jamaica Public Service line towards her shop."

  • (B) Ancerd Thompson said:

    "...

    • (3) It was about 2:30 a.m. when I saw sparks flying from a lightpost.

    • (4) The sparks extended to the next light post which was beside it, that post was beside Miss Haughton's shop.

    • (5) Immediately after that I saw smoke coming from Miss Haughton's shop and fifteen minutes after I went to the scene and saw firemen trying to extinguish the fire."

  • (C) Roy Thompson said:

    "...

    • (2) I have a canefield in Sandy Bay which is close to Miss Haughton's shop and on the 2 ^nd October, 2004 at about 2:30 a.m. as I regularly do I was on my way to my canefield.

    • (3) I saw sparks coming from one of the Jamaica Public Service light pole.

    • (4) Then I saw the sparks shoot down to the next pole which was right at Miss Haughton's shop shortly after I saw smoke coming from the shop.

    • (5) A police vehicle that was passing stopped at the scene and the police called the fire station. Then I went over to the shop and saw that it was on fire.

    • (6) I have seen that particular lightpost spark fire on several occasions. It had caused several power cuts in the area."

  By the time of the trial Roy Thompson was deceased and his statement was tendered.

• 5. Based on the phenomena described by those three witnesses the espondent sought to affix the appellant with negligence which occasioned her esultant loss. Her case was set out in her witness statement of which the elevant parts are:

  • "(3) On or about the 2 ^nd day of October, 1996 a fire engulfed the whole of my business place and destroyed the entire building, all stock, fixtures and equipment.

  • (4) The fire originated on the wires erected by the Jamaica Public Service and spread to my business place.

  • (5) I believe that the fire was caused by the negligence of the Jamaica Public Service.

  • (6) The Jamaica Public Service were [sic] negligent in that:-

    • (a) They failed to take any proper or adequate precaution in the event of a power surge.

    • (b) They caused or permitted the electrical wires to be defective and to remain so when it was unsafe to my property.

    • (c) They failed to take all reasonable and effective measures, whether by inspection, examination or otherwise to ensure that there would be no risk of fire ensuing from any short circuit that may arise from electrical wires.

    • (d) They had defective equipment so close to my property that it endangered same and caused severe damage.

    • (e) Because of the Defendant's negligence my property was destroyed and suffered loss in the region of Four and a Half Million Dollars ($4,500,000.00) being $1,500,000.00 destruction of bar and grocery. ($3,000,000.00) destruction of goods."

• 6. An analysis of the respondent's witness statement indicates that based on he "origin" of the fire it must be inferred that for any of the failings listed in ara. 6 of her witness statement (supra) the appellant was negligent. The ppellant in its written submissions endeavoured to meet this proposition by ointing out that:

  "She presented no evidence about any defect in the utility poles, wires or hardware of the Appellant. The Court was left to guess how the fire started. The facts presented by the Respondent were not such as to put the matter beyond mere surmise or conjecture as no evidence was proffered as to how this fire started at all."

• 7. I now turn to the evidence tendered by the appellant at the trial. In the itness statement of Lindy Elliott he said:

  • "1. I am a Detective Sergeant of Police stationed at the Mandeville Police Station in the parish of Manchester.

  • 2. In October of 1996 I was a Detective Corporal of Police stationed at the May Pen Police Station in the parish of Clarendon. On the morning of Wednesday the 2 ^nd of October, 1996 sometime early in the morning, I was on patrol in the Sandy Bay, May Pen area along with Constables Murray, Special Constable Young and Woman District Constable Dingwall. While on patrol travelling along the Sandy Bay Main Road I observed thick black smoke coming from under the roof of Scrap's Mini Mart and Bar in the vicinity of the pothead. Scrap's Mini Mart and Bar is situated on the left hand side of the Sandy Bay Main Road as one faces Old Harbour.

  • 3. On seeing the smoke I parked the police car in the vicinity of the Jamaica Public Service Company Limited's (hereinafter called "JPS") utility pole, from which the Mini Mart got its electrical supply, and radioed the May Pen Police Station and made a report. I further requested that a fire unit be sent to the location. After making the call I realized that there was now fire on the utility pole under which I had parked so I moved the police car to the other side of the road to prevent any damage to it should the electrical wires burn off and fall on it.

  • 4. I then saw flames coming from under the roof of the Mini Mart where I had first seen the smoke and therefore went to a dwelling house, which was at the rear of the premises which was on fire, where I spoke to Mr. James Scott who lived there with his family. Mr. Scott is the owner of the building which houses the Mini Mart and Bar. On my advice Mr. Scott and his family evacuated the house. By this time the Mini Mart had erupted in flames and I could hear loud popping sounds coming from inside."

  It will be readily observed that this evidence is not in harmony with the description of the circumstances surrounding the "origin" of the fire as narrated by the eyewitnesses called by the respondent.

• 8. Mr. Beresford Williams was at the relevant time the maintenance engineer esponsible for the operation of the appellant's distribution system in Clarendon. He had qualified as an electrical engineer in 1980. He was regarded as an expert witness. He visited the scene of the fire on the 3 ^rd October, 1996. These were his relevant observations and his view as to the cause of the fire. His witness statement recorded as follows:

  "5. I went into the building which was destroyed where I observed the following:

  • (a) The building, which was a concrete structure, had been gutted as a consequence of a fire.

  • (b) The switches on the breaker, which is the property of the customer, were in the 'on' position which means that the breaker had not tripped. The breaker is designed to trip once there is a short circuit. Once there is a short circuit and the breaker does not trip out it could lead to a fire in the building and also lead to the service neutral burning off at the JPS pole. The service neutral is a wire on the pole. Such a failure of the breaker to trip, is attributable to an electrical short circuit on the customer's electrical circuit which causes significant heat to develop on the customer's electrical system as the current flow of electricity would not be limited to the prescribed level.

  • (c) A section of the roof near the pothead showed heavy smoke and fire damage. The pothead is where the electricity enters the building and is attached to the customer's building. The electrical lines are fed through this pothead into the meter and into the customer's house. The service lines brings [sic] electricity from the transformers to the potheads and into customers' buildings. The pothead belongs to the customer.

  • (d) The service lines at and around the pothead area were burnt including about 2 feet of the pvc conduit from the pothead to the meter socket. The rest of the pipe from the pothead to the meter socket and from the meter socket to the ground was not burnt. Further, the service lines to the pothead, except for the last 3 feet of the lines closer to the pothead were not burnt. This indicates that the fire did not travel from the pole to the pothead and into the...