Jamaica Public Service Company Ltd v Winsome Patricia Crawford Ramsey

• Jurisdiction: Jamaica
• Judge: SMITH. J.A : , K. HARRISON, J.A : , SMITH, J.A.
• Judgment Date: 18 December 2006
• Neutral Citation: JM 2006 CA 74
• Judgment citation (vLex): [2006] 12 JJC 1806
• Court: Court of Appeal (Jamaica)
• Date: 18 December 2006

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE A. SMITH, J.A THE HON. MR. JUSTICE K. HARRISON, J.A THE HON. MRS. JUSTICE H. HARRIS J.A

BETWEEN

THE JAMAICA PUBLIC SERVICE CO. LTD.

APPELLANT

AND

WINSOME PATRICIA CRAWFORD RAMSEY

RESPONDENT

David Batts

Miss Jacqueline Cummings

TORT - Negligence - Duty of care

SMITH. J.A :

1 The appellant the Jamaica Public Service Company Ltd. (JPSCo.) is the exclusive supplier of electricity to premises throughout Jamaica. The respondent, Mrs. Winsome Ramsey, a businesswoman, is the owner of premises situate at Dunder Hill, Junction in the parish of St. Elizabeth. On the 12 ^th May, 1999, fire of electrical origin destroyed Mrs. Ramsey's dwelling house on the said premises.

2 On the 29 ^th October, 1999 Mrs. Ramsey filed a Writ of Summons in the Supreme Court claiming damages against the JPSCo for negligence. In this Writ she averred that her house and the contents thereof were destroyed by fire that commenced as a result of the JPSCo's failure to maintain their transformer and/or electrical wires located at close proximity to her premises. The JPSCo, in its defence, denied liability asserting that "at all material times its service wire, transformer and other equipment were in proper working order." Further, the JPSCo claimed that " its servants or agents, its equipment and services had nothing to do with the fire at the plaintiff's (Mrs. Ramsey's) premises and neither did the Defendant (JPSCo), its servants or agents cause or contribute to the creation or the igniting of the said fire."

3 At the trial of the action Campbell J gave judgment on February 7, 2003 for Mrs. Ramsey in the sum of $3,850,000.00 with interest thereon at the rate of 6% per annum. The JPSCo has appealed against the order of Campbell, J. It is with this appeal that we are now concerned.

4 The following are the amended grounds of appeal:

• 1. The learned trial judge in his written judgment misunderstood, misapplied and misrepresented the evidence given in the Court below.

• 2. The learned trial judge came to a conclusion of fact as to the cause of the fire and the way it occurred which was unsupported by the evidence.

• 3. The learned trial judge erred in law in that he came to a conclusion based upon his own theory of the case which was contrary to and/or unsupported by the evidence before him.

• 4. The learned trial judge erred in law in that he failed or neglected to apply the legal burden of proof appropriately or at all.

5 The evidence as to what took place just before the fire is as would perhaps be expected, rather imprecise, but is of importance in that it provides in some sort a framework for the evidence of the expert witnesses.

6 At the relevant time Mrs. Ramsey lived at her house at Dunder Hill with her husband, her children and a nephew. The house was some distance from the main road. Her house was supplied with electricity by way of electric wires strung on poles. There are three poles that took the wires from the main road to her house. The first pole was about 30 meters from the main road. On this pole was her meter. This pole was installed on her instructions. There was another pole close to the first. That other pole had a meter which belonged to someone else. At the point of the main road where the wire left from JPSCo pole to the first pole was a bar.

7 On the 12 ^th May, 1999 Mrs. Ramsey left her house at about 4:00 p.m. for Junction Market where she operated a little shop. She recalled that she had left the refrigerator plugged in. She was not sure about the other electrical appliances. Mrs. Ingrid Newell, a neighbour of Mrs. Ramsey, testified that at about 7:00 p.m., while she was at one Ms. Johnson's shop in Dunder Hill she saw the lights in the shop "going down and up" (on and off) repeatedly. According to her the shopkeeper unplugged her electrical appliances. She said that "rain was squalling". This, I think, is her way of describing a drizzle. She stood at the shop's doorway waiting for the rain to stop; others were standing on the piazza. A JPSCo transformer is across the road from Miss Johnson's shop.

8 Her evidence was that whilst standing at the door of the shop she saw the transformer "spark up" and, according to her, everyone scampered. She described what took place in this way "I saw a ball of fire like my hand (the size of my fist) run up the line and went straight up the road. It went along the line and up the road." The witness walked up the road in the direction that the "ball of fire" had taken. She heard someone say "Ms. Pat's (Mrs. Ramsey's) house is on fire." She proceeded to Mrs. Ramsey's house. According to her the front of the house " where the wire is connected to the front room was engulfed in flames." She said that this was about 8 minutes after she had noticed the spark from the transformer. No member of Mrs. Ramsey's household was at the house at the time. She said that two men disconnected two gas cylinders and placed them out of harm's way. The fire brigade was summoned. By the time the fire truck arrived the entire house was in flames. According to her there was low voltage in the area four days prior to the fire.

9 It is her evidence that from the shop to Mrs. Ramsey's house is about a 5 minute walk. So also, she said is the distance between Mrs. Ramsey's house and the transformer. From the shop where she was standing she could not see Mrs. Ramsey's house.

10 Another of Mrs. Ramsey's neighbour, Ms. Nicola Artwell gave evidence to the following effect. She was at home watching television at about 7 pm on May 12, 1999. The television went off. She went on to the verandah. She saw a "ball of fire on the light post running towards Ms. Pat's house". It was going up the driveway. She went back inside, unplugged her television and turned off the breaker because the light was dimming. She heard "popping" sounds coming from Ms. Pat's house then she saw smoke - the awning was on fire. She ran out of her house and went on the road to get help.

11 In answer to Mr. Batts she said that no one was at Ms. Pat's house at the time. She had seen them leave before the fire. She could not say whether or not they had left any light on Ms. Pat's house. She said no rain was squalling that day. The fire ball moved quickly and it did not stop. She told the Court that the JPSCo power line left the main road at a point where there was a shop. This power line went to two poles on which there were two meters. One of these meters belonged to Mrs. Ramsey and the other to her. The following morning she saw men presumably on Mrs. Ramsey's premises rolling up the electrical wire which was burnt.

12 Mr. Fitzmore Coates gave expert evidence on behalf of Mrs. Ramsey. He is a Senior Forensic Officer in the Ministry of National Security and Justice. His duties include the investigation of fires. He has 25 years experience in this area of investigation. He holds a BSc degree (U.W.I) in Chemistry with a minor in Biochemistry and Physics. He did electronics as part of the Physics course at the U.W.I up to the N-3 level.

13 He testified that on the instruction of the police he examined Mrs. Ramsey's house on the 14 ^th May, 1999. In his opinion the house was destroyed by fire which was electrical in nature and which started in the pothead above the bedroom which is in the north eastern section of the building. The fire spread throughout the roof following the electrical wiring. In his opinion all the electrical equipments except the fridge which was in the eastern section of the building, were unplugged prior to the fire. He came to this conclusion because he saw carbon deposits on wires and plugs of these appliances which would not be the case if they had been plugged in at the socket at the time of the fire. He said that the refrigerator was only slightly burnt from the top - this was due to the falling burning material. There was no evidence of burning at the point where the refrigerator was plugged in. The breakers in the bedroom to the north eastern section had tripped. In his opinion the fire started at the top of the house and the most severely burnt area was the pothead. The pothead he explained is the point at which the external wiring joins the wiring to the building. He did not observe any short circuit coming from the fridge. If a short circuit was from an appliance there would be fusing and beading of the electrical wiring to the appliance the wire would become brittle and break easily as opposed to an external fire which would bum off the insulation but the wire would still be pliable. He did not see any wire outside the dwelling house, except the remains of some wires coming from the pothead. Mr. Coates opined that the fire at the pothead was external because what was after the pothead appeared different from what was before it.

14 There was, he said, indication that shorting had occurred in the area of Mrs. Ramsey's house. It is, he claimed, unlikely that a shorting in Mrs. Ramsey's house would affect the entire district. It is his opinion that a fire in Mrs. Ramsey's house could not cause a fireball to run along the wire into the community. He said that a fluctuation in electricity supply can cause short circuit. The fluctuation he explained causes surges which sometimes by-pass protectors and may cause a fire or damage to equipment.

15 He testified that his expertise did not extend to transformers. In his opinion if the fire had run along the line to the pothead and there was an arc over, it could have started the fire at the pothead. If there was a surge of electricity to the house that could have caused the fire.

16 Mr. Coates' evidence under cross-examination by Mr. Batts is to the following effect. He did not see the meter. At the pothead the copper wire was connected to the aluminium wire. These wires were joined by means of a clamp. If the clamp was...