REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL BETWEEN TRINIDAD AND TOBAGO ELECTRICITY COMMISSION AND

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1 REPUBLIC OF TRINIDAD AND TOBAGO CvA. No. 174 of 1999 IN THE COURT OF APPEAL BETWEEN TRINIDAD AND TOBAGO ELECTRICITY COMMISSION APPELLANT AND JOHN MORRISON AND LYNDA MORRISON RESPONDENTS CORAM: S. SHARMA, J.A. R. NELSON, J.A. A. LUCKY, J.A. APPEARANCES: MR E. PRESCOTT AND MR P. LAMONT APPEARED ON BEHALF OF THE APPELLANTS MISS LUCKY-SAMAROO AND MR L. LALLA APPEARED ON BEHALF OF THE RESPONDENT DATE DELIVERED: 16 TH APRIL, 2002 Sharma, J.A. I have read the judgment of Lucky J.A. in draft. I agree with it and have nothing to add. S. Sharma Justice of Appeal 1

2 JUDGMENT DELIVERED BY LUCKY J.A. On the 19 th of April, 1994, a house belonging to the respondents who are husband and wife was destroyed by fire. The respondents brought an action against the appellant (the Commission) claiming damages for loss of their house, of household items and a Hilux motor vehicle. The learned judge held that the Commission was liable to the respondents in negligence and nuisance for the damage which they suffered as a result of the fire and gave judgement for them for damages to be assessed by a Master. This is the Commission s appeal against the judgement. By their pleadings the respondents relied, in part on the doctrine of res ipsa loquitur. The appellant pleaded that it was not negligent and that the fire did not emanate from or was caused by a faulty transformer. It was not disputed that the fire was caused by an electrical fault. The issues raised in the pleadings are: whether the fire was caused by a problem in the Commission s system or whether the fire began as a result of an electrical short circuit in the respondents premises. The crucial issue in this case is where did the fire emanate? Did it emanate from the Commission s electricity pole or did it emanate in the respondent s house? The judge had to determine as a question of fact where the fire emanated, whether it emanated within the building, 2

3 that is from short circuiting in the house which could have caused the fire; or, whether it emanated from the respondent s transformer which transmitted electricity in excessive surges and caused the fire. Therefore it was necessary to isolate the evidence to determine not only the cause of the electrical fire but where the fire broke out. Several theoretical reasons were advanced for the cause of the fire and where it could have started. On behalf of the respondent, such evidence was supported by factual evidence led from two witnesses who were in the area and in their houses at the time of the fire. In support of the appellant, the Commission, expert evidence was led relative to the cause of the fire and where it could have started. The learned trial judge after analysing the evidence of each of the witnesses found as follows:- In conclusion I find that the Plaintiff has failed to prove the specific cause of the fire at the subject premises but that based on doctrine of Res Ipsa loquitor he has satisfied the Court on balance of probabilities that the occurrence is one which would not have happened in the ordinary course of things without negligence on part of someone other than the Plaintiff and that the circumstances point to the negligence being that of the Defendant rather than any other person. Mr Prescott, learned attorney for the appellant, submitted that the judge failed to identify what exactly caused the fire. He submitted that it must be established that the fire was caused by some deficiency of the appellant. He added that the Court did not specifically find that the fire started on the appellant s electricity pole and that the exact cause of the fire was not established. He added that there is no evidence which points to the Commission being at fault and that no 3

4 evidence was led to establish the doctrine of Res Ipsa Loquitur. In criticising the judgement, Counsel pointed out that the judge did not say why she disbelieved the evidence of the Commission s witness, Mr Lobin. Miss Lucky-Samaroo, learned attorney for the respondents, submitted that it is substantially a question of fact. The burden of proof shifted to the appellant after the respondents had led evidence of negligence. She contended that the appellant did not, on a balance of probability, establish that the fire did not occur because of any negligence on its part. She argued that the doctrine of Res Ipsa Loquitur is applicable in these circumstances, moreso, when consideration is given to the evidence of Mr Walcott, Mr Woon Sam, the expert, and the other witnesses, who testified on behalf for the respondents, for example Mrs Holder and Mr John. At the close of the case of the respondents there was ample evidence of possible causes of the fire; and, on a balance although the evidence does not indicate the specific cause of the fire one must also look at the theoretical evidence to determine where it emanated. The Commission had to demonstrate evidentially that there was a system of maintenance of its equipment that was inconsistent with negligence on its part. Res Ipsa Loquitur The principle of res ipsa loquitur was explained by Megaw L.J. in Lloyde v West Midlands Gas Board [1971] 2 All E.R. p 1240 at p 1246 d-8: 4

5 I doubt whether it is right to describe res ipsa loquitur as a doctrine. I think it is no more than an exotic, though convenient, phrase to describe what is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where: (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff s safety. Therefore once a plaintiff prima facie establishes negligence, the plaintiff is entitled to succeed unless the defendant shows on a balance of probability, that it was not negligent or that it had exercised all reasonable care. The evidential onus would be on the defendant. For example, in this case the respondent would have had to lead evidence of a system of maintenance and care of its transformers. This matter was substantially a matter of fact. It was therefore necessary for the learned judge to determine the issues by a very careful assessment of the evidence; apparently she did so. Courts of Appeal, it is well known, are very wary and loath to interfere with the decision of a trial judge when the decision is based upon findings of fact. It is only where it is quite obvious that the judge ought to have used contemporaneous documents or totally misapplied the evidence in finding facts that Courts of Appeal will interfere. See Watt v Thomas 1974 A.C. p. 484 at pp 487 to 488 where Lord Thankerton said: 5

6 (1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, the appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by a trial judge by reason of having seen and heard the witness could not be sufficient to explain or justify the trial judge s conclusion. (2) The appellate court may take the view that without having seen or heard the witnesses, it is not in any position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of having seen and heard the witnesses and the matter will then become at large for the appellate court. and Essau Hoodan v Sheriff Ramsaran Civ. App. No.66 of 1991 where de la Bastide C.J. said at pp. 4 to 5 Now it is very well established that a Court of Appeal will only with great reluctance and in special circumstances interfere with the findings of a trial judge on issues of fact. The reason for that is that the court of appeal does not have the advantage which the trial judge had of seeing and hearing the witnesses and, therefore, is not in as good a position as he is to form an impression as to whether or not they are telling the truth. However, it is also well established that if a court of appeal is satisfied that the judge did not take full advantage of the opportunity which he had of observing the demeanour of the witnesses, or failed to weigh in the balance matters of substantive evidence which bear on the question of whether a particular witness was or was not telling the truth, then the court of appeal will substitute its own decision for that of the trial judge, even on an issue of fact. In the course of his submission counsel for the Commission criticised the judgment of the trial judge, and pointed out what he found to be her shortcomings in dealing with the issues. I do not find the criticism justified. 6

7 The judge made a proper assessment and evaluation of the evidence in arriving at her findings. John Morrison, the respondent, had been employed with the Commission for forty-four (44) years. I think it could be the logical conclusion that someone who has been a senior foreman for approximately five of those years would have a working knowledge of whether the electrical system in his house was in good working order. The evidence of Edgar Walcott is in my opinion crucial to the respondent s case. He had indicated that when he arrived at the scene of the fire and climbed the pole from which the respondent s house is fed, the fuse had not dropped. This appeared to be an indicator that there was still a supply of electricity on the line leading to the respondent s house. The red and white phases were intact but the neutral wire was burnt out. In fact to quote him On pole #1 everything was alright except the neutral was burnt. He said One side of the wire was on the ground, the part I saw burnt, I think it was caused by external fire ie the fire from the house burnt it. Ramesh Anup, who was at a nearby recreation club, said that around four o clock he heard a sound sh and when he looked in that direction of the Morrison s home he saw the pole from where electricity wires are connected to the house and smoke was coming from the bash board or fascia board. Collette John said he saw when Walcott opened the fuse. It is curiously strange that when challenged with a statement he had voluntarily given he said that it was necessary for him to give a report which was favourable to the Commission. In fact, to quote his evidence he said: 7

8 On occasion of Morrison fire I was unable to say where the fire started. I found indication of probable cause of fire. I did not report that to T&TEC. I had a reason for not so doing. I found evidence of a probable cause. It was tangible evidence. I did not report to the Commission that I had found no evidence or indication of probable cause. That was inaccurate and untrue. That is not the incident I referred to earlier of giving inaccurate information. I gave inaccurate information but the occasion you just referred to I withheld information. It is not surprising that the learned trial judge rejected his evidence. This in no way negates the evidence of Walcott. The evidence of John Woon Sam, a retired electrical engineer, who had worked with the Commission for a number of years was, in my view, also crucial in supporting the respondents case with respect to where the fire could have emanated. Woon Sam said: The function of the neutral is to maintain equal voltages on either side of the neutral. Between 2 hot wires ie 230 volts and that it is possible for the neutral to become disconnected from the transformer and this is caused by natural corrosion caused by dissimilar metals of copper and aluminium. There is a chemical reaction causing natural corrosion, bad workmanship of connection, not made properly, it becomes slack. It is T&TEC s duty to make sure the neutral is intact. That is what normal maintenance is about. Having examined the meter base he said: Meter T287548, I examined it yesterday at T&TEC. I saw inside of the meter. It is exposed now. From my examination inside of the meter is electrically in good condition. It is not damaged by a short circuit in the meter. I saw the meter before it was taken apart. From that examination the meter was damaged externally. Such damage is consistent with external cause. Cannot say a fire. When he was shown the meter base he said: 8

9 I had the opportunity to examine it before today. There is damage to the meter base. The top is broken. The internal part, the connection into which the meter are put are intact. Outside casting is damaged but the terminals appear to be intact. From inspection of the meter there is a disk which would normally spin, it cannot spin now. Judging from what I see I can t say why it cannot spin. It does not appear to be a major electrical fault. A short circuit is a major electrical fault. If a sewing machine experiences current dipping coming and going that could be indicative of cause on T&TEC line, if the neutral on the transformer is defective that is a system that could occur. It is clear that the physical examination of the meter and the base reflects no short-circuiting on its part. In the light of Woon Sam s evidence the judge apparently arrived at the following conclusions: the internal part of the meter was intact; he supported Holder s evidence of current fluctuations; and she accepted his opinion that such fluctuations could be indicative of a problem in the T&TEC electricity pole. I agree that at the close of the plaintiff s (respondent s) case there was ample evidence of possible causes of the fire and it was more likely than not that the effective cause of the fire was some fault or defect in the Commission s equipment. Therefore the doctrine of Res Ipsa Loquitur became relevant and shifted the burden of proof to the Commission. The Commission could discharge that burden by positive proof that it was not negligent without satisfying the Court as to how exactly the fire occurred. T&TEC had to demonstrate evidentially that there was a system of maintenance in place which would alert them to any problems. There is no evidence to indicate when there was a maintenance check on these poles or when they were inspected. There is no evidence of a system of maintenance and inspection by the appellant. Nor is there any evidence of the actual condition of the Commission s equipment 9

10 at or about the time of the fire. Had the Commission established that, it may very well have negated any negligence on its part. The Commission did not do. (See Lloyde West Midlands Gas Board (op cit) and Trinidad and Tobago Electricity Commission v Bridgemohan Sookram CvA. 104/87 p 12. For the foregoing reasons I see no reason why I should interfere with the judge s findings of fact. I uphold the decision and would dismiss the appeal with costs to be paid by the appellant to the respondents; and direct that the matter be listed before the Master for assessment of damages. Anthony A. Lucky Justice of Appeal Nelson J.A. I also agree. R. Nelson Justice of Appeal 10