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GRENLEC exonerated from house fire – Part II

Justice Agnes Actie – the presiding judge on the Grenlec matter

A high court judge in Grenada has exonerated Grenlec from any responsibility for a devastating fire, which resulted in the loss of lives of three children in St. Patrick some 14 years ago.

Female high court judge Justice Agnes Actie handed down the ruling on the claim that was filed by attorney-at-law Anselm Clouden on March 31, 2007.

Grenlec was represented in the matter by attorney-at-law, Dickon Mitchell.

The claim brought by Vondell Oliver (Ms. Oliver) as mother and Administratrix of Shimia Oliver, age 2, Shiriah Oliver, age 5 and Akida Oliver, age 12, arising out of a fire on 16th June 2006 resulting in the death of her three minor children.

The main issue of contention in the case was whether the Grenada Electricity Services Limited (Grenlec) was negligent and in breach of duty arising out of the deadly fire on 16th June 2006.

According to the judge, the claimants failed to establish that there was an electrical fault as a result of Grenlec’s negligence in order to ascribe liability as asserted in the pleadings.

Justice Actie indicated that it was “disheartening that this claim which was filed in March 2007 took fourteen (14) years to be determined by a court of law in Grenada.

“…The court must comment that such a devastating fire which led to the death of Ms. Oliver’s three minor children is rather unfortunate and further underscores why children, especially minors at such tender ages should not at any point be left unsupervised and locked in the home, even more so in the late hours of the night, as was in the present circumstances”.

As a public service, THE NEW TODAY reproduces in full the Justice Agnes Actie ruling on the case handed down on September 21:

Evidence of James Nicholas
[14] James Nicholas in his witness statement says that he is a linesman with Grenlec since 1987. The job entails the building, construction and maintenance of the lines and polices that supply electricity. Mr. Nicholas recalls receiving a report from Kenny Pascal on 16th June 2006 at approximately 11.07 pm informing of the fire in Sauteurs, St. Patrick. Mr. Nicholas together Shawn Manwarring who was with him at the time journeyed to the scene of the fire and arrived at around 11:30 pm to investigative the report.

[15] Mr. Nicholas avers that he noticed that there were three service leads or electricity supply lines that were affected by the fire. One was to the house on fire and the others were to two houses. At that time all three of the supply lines connected to Grenlec’s pole. The service lines were not burnt and were in good order. However, the service supply line that was connected to the burning house was burnt from the end that was connected to the house that was on fire but was still attached to the house.

[16] The main panel in the house was also burnt as well as the insulation on the main cable of the house that was connected to the meter. Further, there were four other customers that were connected from the same pole as the house that was on fire. The service lines to these houses were not burnt from the pole and neither of these houses reported not having electricity during the fire.

Evidence of Don Forsyth
[17] Don Forsyth, the senior engineer at the Planning and Engineering Department with Grenlec, in his witness statement says that he together with Eric Williams, the acting distribution manager, carried out an investigation surrounding the fire which occurred at the home of Ms. Oliver. They visited the site on the morning of 19th June 2006 and observed:

(1) That the site was not secure and observed two young males walking in and out of the house.

(2) Burnt debris in the house.

(3) The room to his front left had the most destruction and appeared to be a bedroom.

(4) The meter of the house was intact and in good condition.

(5) The panel was also burnt.

(6) There is no evidence of a fire affecting the pole which supplied electricity to the houses in the area, including the burnt house.

[18] Mr. Forsyth avers that Grenlec did not receive reports of interruption of electricity or any fault report from that house on the night of the fire in question.

[19] Further, Mr. Forsyth avers that he saw a copy of a letter dated 11th December 2006 addressed to Mr. Anselm Clouden and signed by George Radix. In response to the letter Mr. Forsyth says:

(1) The letter does not state when Mr. Radix conducted his investigation, and he notes that the date of the letter and the date when the fire occurred.

(2) If the investigation was carried out on 11th December 2006, Mr. Forsyth says that would mean that Mr. Radix’s investigation was carried out at the site some six months after the fire.

(3) The letter does not state or even suggest a factual basis for Mr. Radix’s contention that an electrical fault is the most likely cause of the fire.

(4) The assertion that bonding wire was never installed has nothing to do with Grenlec.

(5) Grenlec is not responsible for the internal nor external wiring of its customers building in Grenada. That responsibility in relation to electrical wiring lies with the customer.

(6) Before a customer can contact Grenlec for the supply of electricity, the customer has to get approval from the Electricity Inspector’s office in the Ministry of Works.

(7) With respect to the issue of bonding wire, there is no requirement whether for internal or external wiring of buildings in Grenada or that bonding wire be installed before Grenlec can supply electricity to a building of house in Grenada. The issue of the use of bonding wire as a feature of electrical installation is a matter of system of installation being used.

(8) The system that is used in Grenada is the TT system. The system does not require the use of bonding wire. Under this system, the customer is totally responsible for the adequate grounding of its electrical installation.

Issues
[20] In light of the above facts and evidence, the issues to be determined are:

(1) What was the cause or source of the fire?

(2) Whether the cause of the fire was due to Grenlec’s negligence or breach of duty?

Discussion and Analysis

What was the cause or source of the fire?
[21] Mr. Clouden, counsel for Ms. Oliver, asserts that the expert, Mr. George Radix, in his evidence detailed that he found no evidence of accelerants and ruled out the kitchen as a source of the fire. By process of elimination, counsel notes that Mr.Radix suggested that if arson is ruled out as the possible cause of the fire then an electrical fault being the only possible source of fire at the elevation of the roof.

Additionally, counsel notes that Mr. Radix found no evidence of short circuit faults in the installations and found no definitive evidence of faults from Grenlec’s electricity supply.

[22] However, Mr. Radix’s statements were qualified by detailing that loose electrical connections are also a source of fire, but more than often they burn themselves free and are self-extinguishing. Lastly, counsel notes that Mr. Radix stated that by process of elimination a high resistance electrical ground faults is then the most likely cause of the fire and these faults seldom leave evidence and none were found. Under cross-examination, counsel states that Mr. Radix found no evidence of fault on Grenlec’s system on the visible evidence that was available to him.

[23] The court notes the report of Theophilus Francis of Pioneer Claims Services Co. Ltd. dated 15th May 2007 and his finding that the fire impingement was from the burning house. Further, in relation to the Ms. Oliver’s assertions that the fire came from Grenlec’s service lead, Mr. Francis found although there was damage to the roof skirting board at the left of the front porch, there was “significant survival” which prompted his finding that inside the house was burning before any part of the outer roof. Additionally, Mr. Francis found that the pattern of burning is characterised by far more damage in the areas furthest from the meter and the supply line. Therefore, he says “we can conclude that the fire had nothing to do with the quality or manner of the Grenlec supply”.

[24] The court further notes the evidence and the consistent findings by both expert witnesses that no fault can be attributable to Grenlec’s supply to the house. Additionally, Mr. Francis in his report averred that he is unable to determine whether the cause or source of the fire was electrical. Mr. Radix on the other hand opines that by process of elimination the fire may have been due to an electrical fault. The court is of the view that the claimant has not provided any cogent evidence to satisfy on a balance of probabilities the source of the fire was as a result of Grenlec’s negligence. The evidence in support speaks to the lack of a wire bonding and not electrical faults in the electrical lines. The evidence is clear that the wires running to the house were intact, no one had reported any interruption in electricity on the night of the incident. Taking the above evidence in the round from the experts, the court is not satisfied that the claimant has proved her allegations or assertions that the cause or source of the fire was attributable to Grenlec’s electricity supply to the house.

Whether the cause of the fire was due to Grenlec’s negligence or breach of duty?

The Doctrine of Res Ipsa Loquitur
[25] Counsel for the claimant relies on res ipsa loquitor. With respect to the maxim or doctrine of res ipsa loquitur, the learned authors of the Halsbury’s Laws of England stated:

“Under the doctrine res ipsa loquitur a claimant establishes a prima facie case of negligence where:

2 Para. 10.0, page 10 of the report of Theophilus Francis dated 15th May 2007.

(1) 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; and

(2) 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 claimant’s safety.”

[26] The learning from the Halsbury’s elucidates that a claimant can establish the doctrine of res ipsa loquitur where (1) he is unable to specifically prove the events that led to the cause of the accident and; (2) the evidence suggests that the accident was caused by the defendant’s negligent act or omission.

[27] In Grenada Electricity Services Limited v Isaac Peters4 Byron CJ, as he then was, cited Trinidad and Tobago Electricity Commission v Bridgemohan Sookram and Another5, where de la Bastide CJ at page 482 said:

“It is trite law that he who alleges must prove. The burden of proving an allegation of negligence is on the party who makes it. By their pleading the respondents relied in this case, in part, on the doctrine of ‘res ipsa loquitur’.

This doctrine, as explained by Megaw LJ in Lloyde v West Midlands Gas Board (1971) 2 All E R 1240 at 1246 applies, where, although the precise cause of an accident cannot be established, it is proved to have happened in such a way that prima facie it could not have happened without failure on the part of the defendant to take due care for the plaintiff’s safety. Once this has been established, the evidential burden shifts to the defendant to show that the accident could have happened without his negligence; see Bennett v Chemical Construction (GB) Ltd (1971) 3 All ER 756”.

[28] Given the learnings on the doctrine and the experts’ findings that the precise cause of the fire cannot be established and the fire may have been an electrical fire then the burden shifts on Grenlec’s to show that the fire was not as a result of its negligence. The trusts of the claimant’s evidence suggests that the fire may have been cause by poor electrical wiring and failure to install bonding wire which would have given some level of protection in case of an electrical fault.

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Negligence and Breach of duty
[29] Our Court of Appeal in the case of Clement Lawrence & Cleopatra Ballantyne v First St. Vincent Bank Limited. restated the law on the test to determine whether there is negligence. Webster JA (Ag.) stated:

“The traditional starting point in determining whether a duty of care in negligence exists is the celebrated case of Donoghue v Stevenson where Lord Atkin answered the question of the persons to whom a defendant owes a duty of care by reference to the neighbour principle and the twoprong test of reasonable foreseeability and proximity. Following the decision in Donoghue v Stevenson, the test has evolved into a threeway test that is best summarised by Lord Bridge of Harwich in Caparo Industries Plc v Dickman and Others as: “What emerges is that, in addition to foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.” The three elements of the test are therefore: (1) reasonable foreseeability of damage; (2) a relationship characterised by proximity or neighbourhood between the wrongdoer and the person damaged; and (3) that the law would consider it fair, just and reasonable to impose a duty of care.”7 (Underlining supplied)

[30] The court is not satisfied that Ms. Oliver has made out a prima facie case of negligence against Grenlec for any negligent act or omission. Ms. Oliver in her claim contends that Grenlec failed to take all reasonable and effective measures and to establish safe conditions, whether by inspection or otherwise to ensure that there were or would be no risk of fire arising from the supply of electricity. Further, the claimant contends that Grenlec failed to ensure that the bonding wire as required by the electrical code was installed.

[31] There was much debate between the experts on the use of bonding wire in electrical installations. Mr. Radix asserted in his evidence that both Grenlec and the electrical inspectorate are aware of non-compliance with the TT system of grounding in violation of the IEE code. Contrastingly, Mr. Forsyth stated at the further hearing that “bonding wire is not required by the code”. He further stated, “if you are using the TT system there are certain requirements of the TT system that the electrical inspectorate has to ensure that the efficacy is as it’s meant to work but the TT system does not require a bonding wire”. Mr. Forsyth also stated that “close to 100% of the houses in Grenada are connected right now and do not have a bonding wire”.

[32] At the further hearing of the trial on 23rd July 2021, Mr. Radix stated that “the electrical code specifies you can eliminate the bonding, but you must ensure that the loop impedance is at a sufficiently low enough level so that the circuit breaker would operate”.

[33] Further, when asked by the court who would be responsible to ensure that there is compliance with the code, Mr. Radix stated that “the person who actually did the design…in most installations in Grenada wire men actually do the designs, they might not be qualified to do so, but it’s accepted practice. So to answer your question, ultimately in Grenada, it is either an electrical engineer if an engineer is employed to do that design or the electrician …they essentially do the design in a form but they are not qualified to do the design so it falls on the electrical inspectorate, who is essentially charged to pick up these errors”.

[34] Additionally, when asked by this court if Grenlec was under a responsibility to inspect whether bonding wire was installed on premises he stated: ‘No, I do not believe that is a responsibility of Grenlec, but as a responsible utility… most responsible utility would also do a peripheral inspection to make sure that everything is in order.”

[35] In summary, Mr. Radix conceded that there is no statutory duty on Grenlec to ensure that bonding wire is installed on premises or for Grenlec to inspect the premises to ensure that it is installed. However, Mr. Radix advocates for this to be done by Grenlec as most homes in Grenada do not have bonding wire installed. Further, Mr. Radix at the hearing stated the “electrical inspectorate is the person charged to ensure that this happens”. When asked by the court who is this person or body, that is, the “electrical inspectorate”, Mr. Radix stated that body falls under the Ministry of Works.

[36] The court appreciates Mr. Radix’s candour on his preference and advocacy for the use of bonding wires. It is the evidence from Mr. Radix that bonding wire was not utilised in the electrical installation in Ms. Oliver’s home. Additionally, it is the evidence from Mr. Francis in his report that a steel rod was used instead of copper rod (earth rod) in the electrical installation.

[37] The court accepts the submissions on behalf of Grenlec that the company is not in the business of electrical installations whether internally or externally and that all electrical installations are first to be certified by Electrical Inspectors in the Ministry of Works before electricity can be supplied to the premises. This court is of the view that those alleged issues in the electrical installation of Ms. Oliver’s home ought to have been discovered through a thorough inspection of the premises by the relevant body that is, the Ministry of Works and not Grenlec.

[38] At the further hearing of this claim, Mr. Radix asserted that if the utility company is not happy with an installation the burden is on the utility company to refuse to connect that property. In essence, Mr. Radix asserts that Grenlec must go beyond their duty to connect electricity and further verify all electrical installations already certified by the electrical inspectors from the Ministry of Works and conduct their own private inspection of the property and its installation.

[39] The court accepts that this further requirement suggested by Mr Radix would place an onerous burden on Grenlec as it would require the company to inspect all connections for the supply of electricity as the company is the sole provider of electricity in Grenada.

[40] With respect to Grenlec’s discretion to refuse to supply electricity as charged by Mr. Radix above, Section 6(8) of the Electricity Supply Act9 (ESA) states that Grenlec:

“…may refuse to supply electricity to a consumer or discontinue the supply of electricity to a consumer unless the company is reasonably satisfied that any installation, apparatus or works in or serving the consumer’s premises (other than those of the company) is in good working order and condition, is safe, complies with the applicable standards and otherwise will not interfere with efficient supply of electricity.”

[41] While Grenlec has a discretion to refuse to supply electricity to a consumer as provided in the above section, the court is of the view that such an imposition of duty on Grenlec as charged by Mr. Radix would be burdensome to Grenlec, especially on routine connections. Further, there is no evidence before this court that those issues in relation to the grounding system were patent or obvious to Grenlec on its routine connection of electricity supply to Ms. Oliver’s home a few months after certification by the Ministry of Works.

[42] It Grenlec’s responsibility to connect electricity to the home or building after certification from the said Electrical Inspectors pursuant to section 39 the ESA. Section 39 (5) and (6) of the ESA provides:

“(5) The duties of the Government electricity inspector shall be as follows—

(a) to inspect and test, periodically and in special cases, electric lines and electrical plant belonging to persons authorised by a licence or exemption to generate, transmit and/or distribute electricity.

(b) to examine, periodically and in special cases, the generation, transmission and/or distribution of electricity by such persons.

(c) to inspect and test, if and when required by any consumer, electric line or plant located on such consumer’s premises, for the purpose of determining whether any requirement imposed by this Act in respect of such lines or plant or the supply of electricity through or by them has been complied with; and

(d) such other duties as may be imposed by regulations or otherwise under this Act.

(6) The Government electricity inspector shall have the right to direct the Company not to supply electricity to any installation, apparatus or works which he or she deems unsafe or which, in his or her opinion, fails to comply in any respect with such regulations or would interfere with the efficient supply of electricity by the Company.”

[43] Therefore, given the approval and certification from the Ministry of Works which was granted on 15th December 2005, the court is of the view that Grenlec reasonably discharged its duty of care when it relied on the Ministry’s certification of the home of Ms. Oliver to supply its electricity.

[44] Further, even if there was a defect or issue in the Ms. Oliver’s electrical installation as Mr. Radix asserts in relation to the absence of bonding wire, the risk of electrical fire or damage to the home of Ms. Oliver was not reasonably foreseeable in the circumstances. It was the evidence that the bonding wire by itself cannot be the cause of a fire.

Conclusion
[45] The court accepts on the evidence that it was the Ministry of Works who had the primary duty and responsibility to ensure that the wiring of the house met the required standards. The claimant’s expert is of the view that an electrical fault was the most likely cause of the fire as the required bonding wire was never installed. It appears from the expert’s evidence that an electrical fire, if any, was as a result of the internal wiring and the failure to install the bonding wire. It was the responsibility of the Ministry of Works to have ensured that the dwelling home was in a state of readiness for connection. The Ministry of Works’ certification was relied upon by Grenlec to connect electricity to the claimant’s dwelling a mere few months before the fire. The Ministry of Works is not a party to the claim. The claimant’s pleaded claim and the evidence has failed to provide any cogent proof that Grenlec owed a duty and was in breach of such duty resulting in damage to the claimant. Therefore, the maxim or doctrine of res ipsa loquitur as pleaded by Ms. Oliver does not arise in the circumstances.

[46] Taking all in the round, the court is of the view that the claimant has failed to establish that there was an electrical fault as a result of Grenlec’s negligence in order to ascribe liability as asserted in the pleadings. Accordingly, the claim stands dismissed.

ORDER
[47] Accordingly and for the foregoing reasons, it is ordered that the claimant’s claim filed on 21st March 2007 for negligence against Grenada Electricity Service (Grenlec) stands dismissed.

[48] Notwithstanding that the claimant has not been successful in her claim, it is ordered that costs be assessed, if not agreed within twenty-one (21) days.

Postscript
[49] it is disheartening that this claim which was filed in March 2007 took fourteen (14) years to be determined. Further, the court must comment that such a devastating fire which led to the death of Ms. Oliver’s three minor children is rather unfortunate and further underscores why children, especially minors at such tender ages should not at any point be left unsupervised and locked in the home, even more so in the late hours of the night, as was in the present circumstances.

Agnes Actie
High Court Judge
By the Court
Registrar