MAKONESE J: Where a defect
or dangerous condition in the conductor or any appliance of a power
company, causing injury to a person or persons, negligence does not
per se
give rise to liability as against the power company. Liability on the
part of the power company turns on whether it knew, or by the
exercise of reasonable diligence, should have known of the defect,
in time to have avoided injury.
The standard test for determining
negligence in regard to liability for delictual damages is whether a
diligent paterfamilias
in the position of the defendant would have foreseen the reasonable
possibility of his conduct injuring another person or property and
causing the patrimonial loss. Negligence arises where the reasonable
person would have taken reasonable test to guard against the
occurrence of injury, but fails to take such steps to prevent harm
from occurring.
On the night of the 13th
December 2015 there was a heavy storm in the Hozheri village of
Gweru. During the overnight storm a bolt of lightning struck a wooden
electricity pole carrying three electricity conductors, destroying
the insulator pin and insulation porcelain on the cross-arm, causing
one of the three conductors to dislodge from its position on the
cross-arm, leaving it hanging two metres above the ground.
The following morning, there was
a slight drizzle, the plaintiff, who was 19 years old at the time was
herding cattle. He was wearing a rain coat. The plaintiff came into
contact with a 100 volt electric conductor thereby “precipitating a
short-circuit fault to earth” and was electrocuted. He suffered
extensive burns as the electric current surged through his body,
discharging into the ground. The plaintiff was taken to Mpilo Central
Hospital in Bulawayo where he was hospitalized for three months. His
left hand was amputated.
The plaintiff issued summons
against the defendant, a power distribution company, claiming damages
for the injuries sustained as a result of the electrocution. The
amount claimed is broken down as follows:
(a) $60,000 for pain and
suffering.
(b) $160,000 for permanent
disfigurement and loss of amenities.
(c) $30,000 for future medical
expenses.
This third claim was however
abandoned before the commencement of the trial.
The plaintiff based his claim on
three particulars of negligence as set out in paragraph 5 of his
declaration namely that:
(a) defendant failed to take
reasonable steps to fix a fault which had occurred knowing fully the
danger associated with such fault, in that the live low lying cable
was low lying for over a month before the electrocution.
(b) defendant failed to take
reasonable measures to disconnect electricity transmission after the
fault had occurred so that the low lying cable would not carry
electric current which ended up injuring the plaintiff.
(c) defendant failed to take the
necessary action in time and only took action after the plaintiff was
injured, such delay was the cause of the plaintiff's injuries.
The defendant entered appearance
to defend the plaintiff's claims and in its plea denied liability
for the injuries suffered by the plaintiff as a result of the
electrocution. The defendant averred that the electrocution was
solely caused by the plaintiff who deliberately handled the live
electricity conductor which was hanging two metres above the ground,
a distance about the plaintiff's height. The defendant further
averred that the cause of the conductor hanging two metres above the
ground was a natural event, a lightning bolt, for which defendant was
not responsible.
The issues for trial were set out
in a joint pre-trial memorandum and agreed as follows:-
1. whether or not the plaintiff
was injured due to the negligence or wrongfulness on the part of the
defendant.
2. whether or not the plaintiff
is entitled to the damages claimed against the defendant. If so
whether plaintiff is entitled to the quantum claimed in the
declaration or any lessor amount.
3. whether or not there was
contributory negligence on the part of the plaintiff and if so the
effect on the quantum of damages, if any.
Plaintiff's case
The plaintiff testified that on
the 14th
of December 2015, while he was herding cattle in the Hozheri Village
the raincoat he was wearing got into contact with a live conductor
that was lying about 50cm from the ground, resulting in a bolt of
fire. When plaintiff saw the fire he was startled and panicked
resulting in him getting into contact with the live electric
conductor. The plaintiff was electrocuted and became unconscious, and
when he woke up he was in a hospital bed at Mpilo Central Hospital.
The plaintiff stated that there
was no way he could have avoided getting into contact with the
conductor since everything happened quickly and in a flash.
The plaintiff sustained burns on
his back, on the right leg and on the head, and behind the right ear.
Plaintiff's left hand was amputated and he spent three months in
hospital receiving treatment.
In his evidence the plaintiff
contended that the injuries arose as a result of the defendant's
negligence in that it failed to take reasonable measures to fix an
electrical fault which had occurred in its distribution system,
knowing fully well the dangers associated with such a fault. The
plaintiff contended that the defendant as the sole distributor of
electricity in the national grid it should have exercised a high
degree of maintenance and care of its assets.
The plaintiff stated that he was
claiming the sum of US$60,000 for pain and suffering because he
endured a lot of pain when his hand was being amputated and also for
the wounds on his back, leg, head and right ear. The plaintiff stated
that he suffered a great deal of pain as the electric current surged
through his body. The plaintiff further claimed the sum of $160,000
for permanent disfigurement because the electrocution changed his
whole life. He stated that his ambition was to become a soldier or
policeman but his dream was shuttered by the injuries he sustained.
The plaintiff indicated that he was now limited in the things he
could do as a result of the amputation of his left hand. The
plaintiff claimed a further sum of US$30,000 in respect of future
medical expenses. The plaintiff did indicate the burn wounds he
sustained to the court, and the court observed that indeed his left
arm had been amputated from shoulder level.
It is noted that the plaintiff in
giving oral evidence in court never adverted to or substantiated the
particulars of negligence alleged against the defendant as pleaded in
paragraph 5 of his declaration. No explanation was proffered for the
departure from the pleaded particulars of negligence. Under
cross-examination by defendant's counsel, the plaintiff alleged two
particulars of negligence which were never pleaded, namely:-
(1) Defendant was required to
clear the grass and trees on the way – leave along the electricity
line where plaintiff was electrocuted.
(2) Defendant was supposed to
note that there was a low-lying cable on its electricity network and
fix the hazard that had been created.
Under cross examination by the
defendant's counsel, the plaintiff was confronted with the
defendant's version of the cause of electrocution and the plaintiff
persistently denied that the electricity conductor which electrocuted
him was hanging two metres above the ground and that he deliberately
handled the live conductor thereby precipitating a short-circuit,
fault to earth, hence the electrocution.
The plaintiff persisted with his
denial of the defendant's version even when confronted with
photographs depicting the position of the conductor which
electrocuted him and the condition of the ground on the way-leave
along the electricity line. The plaintiff persisted with his version
that the conductor which electrocuted him was only 50cm above the
ground and was covered in grass.
It was put to him that it was not
possible for the electric conductor to have been covered by grass
because this would have caused the circuit to trigger automatically,
in which event the conductor would not have been live at the time of
electrocution.
The plaintiff closed his case
without calling any further witness.
The plaintiff struck as a witness
who was evasive and who could not accept basic factual scenarios
presented by the evidence. An example of this is that the photographs
where the electrocution occurred, which position was incidentally,
pointed out to the defendant by the villagers, showed that the
conductor was two metres above the ground. There was no grass or
shrubs covering the conductor as shown by the photographs.
Defendant's case
The defendant called its first
witness Mitchel
Chiungwe. This
witness testified that he was the lead artisan responsible for
maintenance, control and operation of the defendant's electricity
networks, which covers Senale sub-station, which feeds the Hozheri
village area where the plaintiff was electrocuted.
Mr Chiungwe's evidence was that
on the afternoon of the 14th
of December 2015 he received a telephone call from a late Member of
Parliament Mr Chivamba who informed him that there had been an
accident involving the electrocution of the plaintiff. Mr Chiungwe
abandoned the repair work he was engaged in and drove to the
sub-station which fed the Hozheri line. Upon arrival at the
substation he observed that the Auto-Recloser Circuit Breaker had not
tripped, meaning that the particular line was live. He manually
tripped the circuit breaker to ensure that the point at which the
accident was safe. He then drove to the scene of the electrocution
and the exact spot was identified to him by villagers. The plaintiff
had already been taken to hospital. At the scene of the accident, Mr
Chiungwe made the following observations:-
1. There was an electric
conductor that was hanging roughly two metres above ground.
2. He observed an insulator and
insulator pin which were supposed to be sitting on the cross-arm of
the electricity pole which had been damaged, causing the conductor to
fall off the cross arm, leaving it hanging two metres from the
ground.
3. The ground at the scene of the
accident was wet and the villagers indicated that there had been a
heavy storm the previous night.
4. The wooden pole which was
carrying the conductors and the cross-arm was damaged from the top
and there was no doubt that the damage had been caused by a lightning
strike.
5. There was a dark patch on the
conductor being the point of contact between the plaintiff and the
conductor, and the ground beneath the point of contact had burnt
grass indicating the point where the electricity was discharged into
the ground during the electrocution.
The witness explained that the
electricity network protection system had three components namely,
the Auto Recloser Circuit Breaker, the current transformers, and the
Relay. The system is designed to protect against fault current,
current overload and phase faults. The Auto Recloser Breaker operates
by tripping when conditions for a trip are achieved and recloses. The
tripping and opening operation is so fast that it takes 0.2 to 0.5
seconds. If the conditions for a trip persist beyond the closing and
opening operation, the circuit breaker trips permanently, to stop the
current from flowing through that particular conductor.
Mr Chiungwe further explained
that the plaintiff created the conditions for a trip of the circuit
breaker when he had direct contact with the conductor and his body
created a direct contact between the conductor and the earth.
The Auto-Recloser Circuit breaker
protection system is designed in such a way that if the contact is
temporary or intermittent, it trips and recloses on its own, hence
the plaintiff was released and managed to get off the conductor when
the circuit breaker opened in the course of that fast operation. The
circuit breaker was closed after the plaintiff was released and fell
to the ground, hence the conductor was live even after plaintiff's
electrocution.
Mr Chiungwe disputed the
plaintiff's version of how he got electrocuted by pointing out the
following factors;
(1) A live conductor cannot be
covered by grass and shrubs as such objects create the conditions for
a trip and the line would have tripped upon the conductor getting in
contact with the grass and shrubs.
(2) The conductor which
electrocuted the plaintiff is high voltage conductor carrying 11,000
volts. A raincoat coming into contact with such a conductor would
have burnt on the plaintiff as the raincoat material is highly
conductive.
(3) The way-leave along the
electricity line was cleared of grass and shrubs a few months prior
to the electrocution and the photographs of the scene of the accident
show that the conductor was hanging two metres above the ground and
there were no shrubs or bushes covering the conductor.
Mr Chiungwe testified that the
lightning strike which caused the conductor to fall off the cross-arm
did not trigger a trip of the circuit breaker because lighting adds
more voltage to the current carried in the conductor and the
protection system is designed to absorb such over-voltages without
causing a trip.
According to the finding made by
this witness the factual cause of the electrocution was the
plaintiff's conduct in deliberately handling the conductor which
was hanging two metres above the ground after the lighting had struck
the wooden pole on which the conductor was sitting.
This witness gave his evidence in
a comfortable, consistent and logical manner. He was not shaken under
cross-examination. His factual findings were not discredited or
disproved at all under cross-examination.
The second witness for the
defendant was Engineer
Martin Kanyepe, who
is the senior engineer responsible for the area where the incident
occurred.
He testified that his role was to
carry out an investigation into the circumstances leading to the
electrocution. He travelled to Hozheri village on 15th
December 2015 to make observations at the scene and to interview
witnesses. He was shown the scene of the incident by villagers and he
took some photographs. He also visited the plaintiff at Mpilo
Hospital and asked him what had happened.
The plaintiff told Engineer
Kanyepe that he had handled an electrical conductor and sustained
burns on his hands, armpits and part of his buttocks.
The witness corroborated Mitchel
Chiungwe on how the network protection system operates.
From his investigations Engineer
Kanyepe concluded that there was a deliberate handling of the
electrical conductor which resulted in the plaintiff being
electrocuted.
The witness gave his evidence
well and was not contradicted in any material respects under-cross
examination.
The Applicable Law
The test for negligence
The plaintiff maintained
throughout the trial that the defendant was negligent in that it
failed to take notice of the fact that a fault had occurred in its
system. The plaintiff averred that the defendant was exclusively
responsible for electricity transmission and distribution and as such
where a fault occurred causing injury they should be held liable.
The standard test for determining
negligence to ground liability for damages in delict was formulated
by HOLMES
JA in Kruger
v Coetzee
1996 (2) SA 428 (A) at page 430E-F as follows:
“For
the purposes of liability culpa arises if -
(a)
a diligens paterfamilias in the position of the defendant –
(i)
Would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial loss;
and
(ii)
Would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.”
The test has often stated as the
question; “Whether but for the negligent act or omission of the
defendant the event giving rise to the harm in question would have
occurred.”
See Minister
of Police v Skosana
1997 (1) SA 31 (A).
In Border
Timbers v Zimbabwe
Revenue Authority 2009
(1) ZLR 131 (H) at 132C, MAKARAU
(JP) (as she then was) held as follows:
“while
the culpable conduct causing harm is not actionable unless it also
causes wrongful, conduct that is not negligently or intentionally
caused but that results in harm is equally not actionable unless
there was a duty to prevent the occurrence of harm to the plaintiff.”
What is the approach to
mutually destructive and irreconcilable versions?
There can be little doubt that
the versions led by both parties are mutually destructive and cannot
be reconciled. The version of how the electrocution occurred as
narrated by the plaintiff cannot be reconciled with the defendant's
version.
The approach to be taken in such
circumstances was discussed in Stellenbosch
Farmers' Winery Group Ltd & Anor
v Martel et cie and Ors
2003 (1) SA 11 (SCA),
the court held that:-
“The
technique generally employed by the courts in resolving factual
disputes of this nature may conveniently be summarised as follows:
To
come to a conclusion on the disputed issues a court must make
findings on:
(a)
the credibility of the various factual witnesses;
(b)
their reliability; and
(c)
the probabilities.
As
to (a) the court's finding on the credibility of a particular
witness will depend on its impression about the veracity of the
witness. That in turn will depend on a verality of subsidiary
factors, not necessarily in order of importance such as;
(i)
the witness's candour and demeanour in the witness box;
(ii)
his bias, latent and blatant;
(iii)
internal contradictions in the evidence;
(iv)
external contradictions with was pleaded or put on his behalf, or
with established fact or with his own extra-curial statements or
actions;
(v)
the probability or improbability of particular aspects of his
version;
(vi)
the caliber and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As
to (b) a witness's reliability will depend, apart from the factors
mentioned under (a)(ii), (iii), (iv) and (v) above, on the
opportunities he had to experience or observe the event in question
and (ii) the quality integrity and independence of his recall
thereof.
As
to (c), this necessitates an analysis and evaluation of the
probability or improbability of each party's version on each of the
disputed issues.
In
the light of its assessment of (a), (b) and (c) the court will then,
as a final step, determine whether the party burdened with the onus
of proof has succeeded in discharging it.”
It is my view that the
plaintiff's version of how the electrocution occurred is inherently
implausible and not consistent with all the established facts.
The defendant led evidence from
qualified persons who indicated that where a live electricity
conductor falls off from the cross-arm on the pole and hangs at 50cm
above the ground where it is covered by grass and trees this will
trigger a trip of the circuit breaker as they become the direct link
between the live conductor and earth, causing short-circuit to earth.
The plaintiff's account of how he got into contact with the live
conductor is clearly not sustainable on the facts.
In Matambo
v Mutsago
1996 (1) ZLR 101 (S) at p 103E, the Supreme Court stated the approach
in evaluating the evidence where a witness makes an assertion that is
mechanically impossible McNALLY
JA, had this to say:
“However
charmingly, smoothly or impressively Mr Mutsago made these
statements, the fact is that they are mechanically impossible. If a
witness says he saw water flowing uphill unaided by a pump, you do
not judge his veracity by reference to his demeanor. You apply the
law of physics.”
The plaintiff in this matter did
not adhere to the pleaded cause of action and departed from his
declaration in material respects. No explanation was given why the
oral evidence given under oath was substantially different to the
cause of the electrocution stated in the declaration.
The plaintiff failed to discharge
the onus on him to prove his pleaded cause of action. The purpose of
pleadings is to set out the basis of the claim. The particulars if
negligence as pleaded in the declaration were responded to by the
defendant in his plea. The issues for trial were set out on the basis
of the pleaded cause of action. The matter then proceeded to trial.
A party who makes a claim based
on a particular cause of action may not abandon the pleaded cause of
action during the course of the trial without seeking, and being
granted a formal amendment.
Applying the law to the facts
The plaintiff essentially relied
on the case of 1959 Andrew
v Appalachian Flier Power Company, 192 VA
150 635.E.ZD 750 where the court held that:
“Under
the res ipsa loquitur, proof that injury has resulted from contact
with highly charged wire which is under exclusive operation and
control of the defendant and is out of its proper place, raises prima
facie presumption that defendant was negligent. Electric companies
are held to high degree of care in construction and maintenance of
dangerous appliances employed by them. Such high degree of care by
those using public streets for transmission of electric power
includes duty of making reasonable and proper inspection of their
wires and appliances.”
The critical issue for
determination is whether the plaintiff proved on a balance of
probabilities, that a particular wrongful and negligent act on the
part of the defendant was the factual cause of the electrocution
suffered.
It is evident that the
plaintiff's case suffers a still birth at the point where the
plaintiff fails to adduce evidence to prove the pleaded cause of
action.
The plaintiff may not place
reliance on the doctrine of res
ipsa loquitur for the
simple reason that his version on how the electrocution occurred is
not believable and is not consistent with the established facts. The
court's finding is that the plaintiff must have deliberately or
carelessly handled the live electrical conductor which was 2 metres
above the ground. In that regard therefore, liability on the part of
the defendant could not be established.
The proper approach in
establishing factual causation was set out by CORBETT
CJ in International
Shipping Company (Pty) Ltd
v Bentley 1990
(1) SA 680 (A), as follows:-
“The
enquiry as to factual causation is generally conducted by applying
the so called “but – for” test, which is designed to determine
whether a postylated cause can be identified as a causa sine qua non
of the loss in question. In order to apply this test one must made
a hypothetical enquiry as to what probability would have happened but
for the wrongful conduct of the defendant.”
On the plaintiff's version, it
is clear that the plaintiff failed to establish any particular
wrongful or negligent act on the part of the defendant. What is clear
from the totality of the evidence is that the plaintiff must have
suffered the electrocution when he deliberately came into contact
with a live electrical conductor.
In cases of delictual liability,
a distinction must be drawn between actual and human phenomena.
Responsibility and liability is not attached where natural events or
natural disasters cause damage or injury.
The lightning bolt that caused
the conductor to hang two metres above the ground was an act “of
God” for which the defendant cannot be held liable.
The evidence from the defendant's
witnesses is that there was no report made of a conductor hanging two
metres above the ground before the accident involving the Plaintiff.
The defendant's Auto-Recloser System was found to have been
working. There is therefore no conduct attributed to the defendant's
fault, which could be said to be the factual cause of the
electrocution of the plaintiff.
The plaintiff was 19 years old at
the time of the accident. By his own admission he already knew about
the dangers of electricity. He voluntarily assumed risk when he
handled or came into contact with the live electrical conductor. In
the circumstances, it cannot be said that the defendant breached any
duty owed to the plaintiff to prevent the plaintiff from deliberately
handling a live wire and causing harm to himself.
Conclusion
I make the finding, that on the
evidence led and in applying the relevant law to the facts, the
plaintiff failed to discharge the onus on him to prove, on a balance
of probabilities, the pleaded cause of action. The plaintiff failed
to substantiate his claims and the defendant's version of how the
electrocution occurred is more plausible than the plaintiff's
version. The plaintiff gave an inherently impossible and implausible
account of how he got into contact with the live electric conductor.
The plaintiff failed to prove any particular of negligence against
the defendant. The plaintiff's claims must therefore fail with
costs.
In view of the finding that I
have made on the liability of the defendant, it is not necessary to
make a specific finding on the issue of the quantum of damages sought
by the plaintiff in this matter. However, in keeping with the
practice of this court, I shall proceed to do so, in the event that
this decision is appealed against.
It is my finding that the quantum
of damages claimed by the plaintiff is way above the range of damages
usually awarded by this court in cases of electrocution resulting in
amputation.
In Chinembiri
& Ors v Ncube
HH55-2014, a case in which the defendant was being sued for damages,
the six plaintiffs in that matter were awarded damages in the
following ranges;
(a) $4,000 - $6,000 for pain and
suffering.
(b) $2,000 - $10,000 for
permanent disfigurement and loss of amenities.
The plaintiff did not adduce any
evidence from any expert on future medical expenses. There is no
basis on which the court would be able to award such damages in the
absence of any credible evidence as to the nature of future treatment
envisaged. As a whole the plaintiff's claims were somewhat
exaggerated and the figures were certainly plucked from the air.
In the result, I make the
following order:-
1. The plaintiff's claims be
and are hereby dismissed.
2. The plaintiff shall meet the
defendant's costs of suit.
Mutendi, Mudisi & Shumba c/o Dube-Tachiona & Tsvangirai,
plaintiff's legal practitioners
Danziger & Partners c/o Danziger & Partners – Bulawayo,
defendant's legal practitioners
