Rabson Kamanga v Zambia Electricity Supply Corporation (Appeal 106 of 2006) [2007] ZMSC 131 (5 September 2007)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 106/2006 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: RABSON KA MAN GA Appellant AND ZAMBIA ELECTRICITY SUPPLY CORPORATION Respondent Coram: Lewanika, DCJ. Mumba, and Chitengi, JJS on 5lh December, 2006 and 5th September, 2007 For the Appellant : Mr. Dr. J. Soko of Messrs Josias & Partners For the Respondent: Mr. W. Chilundu - Legal Counsel JUDGMENT Chitengi, JS, delivered the judgment of the court Cases referred to: - 1. Zaza V Zambia Electricity Supply Corporation Limited (2001) ZR 107. 2. Rylands V Fletcher (1866) LR 1EX 265 (Court of Exchequer Chamber). 3. Read V Lyong Limited (1947) AC 156 This is an appeal against the decision of the High Court sitting at Ndola which dismissed the Appellant’s claim, which as framed, is for damages for loss of business, profits and -J2- damages for loss of one National Colour Television set, one Olivetti Electrical Calculator and one Rising Cassette Player as a result of negligence by the Respondent leading to the Respondent’s electricity cables short circuiting and causing electricity surge thereby damaging the Appellant’s equipment aforesaid which were in the Appellant’s Tiyese Nawo Bar at Mushili Market. The facts of this case can be briefly stated. The Appellant is a businessman running a bar called TIYESE NAWO BAR at a place called Mushili in Ndola. While the Appellant was in his bar on 20th January, 2004, electricity, at one stage, came with full voltage resulting in damage to the Cocacola Refrigerator, Television set, Calculator and Radio Cassette which were being used in the bar. Thereafter, the Appellant heard noise outside and went out to check. While outside the Appellant saw fire on the Respondent’s electricity cables which supply power to his bar. According to the Appellant, he had never seen such kind of fire since he was bom. After this incident the Respondent’s workers came and checked the metre box outside the Appellant’s shop and told the Appellant to write to the Respondent’s Regional Manager about the incident. The appellant accordingly wrote a letter to the Respondent’s Regional Manager in Ndola on 21st January, 2004 in which he enumerated the items that were damaged in - J3 - his bar and loss of business and asked the Regional Manager for compensation. On 22nd January, 2004, the Respondent’s Regional Manager replied saying the matter was receiving active attention. The Appellant anticipated a quick solution of the problem. But after the Respondent’s employees checked the metre outside the bar on 18th February, 2004, saw the damaged items and left with instructions to the Appellant not to touch the items, nothing happened until November 2004 when the Respondent’s employees came again to check the equipment. When the Appellant was cross examined he said that he knew that the Respondent’s responsibility ends at the metre box and that the responsibility of providing protective devices lies on the consumer. Further he said that he was aware that sometimes power is affected by lightining. He said out of the several other customers he was the only one who was affected by the power surge and that he was not told that he would be compensated. He said that since he started business power surge happened only once. He did not know that the power system could be affected by overloading. And according to Mr. Vasco Hamasunka, who is the Appellant’s employee, and whose evidence as to how the incident occurred and what property was damaged in the Appellant shop as a result of the power surge is the same as that of the Appellant, there were so -J4- many other customers drawing power from the same line who were affected by the power surge. Mr. Kelvin Simbule, an Electrical Technician employed by the Respondent and the Respondent’s only witness, went to the Appellant’s bar which is shop 37 on 22nd January, on instructions of the Respondent’s Regional Manager to inspect the items which were burnt. Mr. Simbule found that the items listed by the Appellant were not working. On inspection, Mr. Simbule found that Shop 36 which is next to the appellant’s shop had a burnt service cable which feeds the Appellant’s shop. The burnt service cable triggered or induced the high voltage in the circuit feeding all the shops in the market. The Respondent’s main supply cable was affected and got burnt. A new service cable was put in place. When he inspected the Appellant’s shop Mr. Simbule discovered that there was no surge arrestor in place. The items were damaged because there was no surge arrester in place. Apart from the Appellant, no one else at the market complained about damaged equipment. When cross-examined, Mr. Simbule said that when he went to shop number 36, he saw the burnt out cable swinging on the roof of shop number 36 and the insulation had worn off. The cable was rubbing the shackle. He said the cable was inspected when there was a fault. If the cable was in good order, the power surge would hot have happened. -J5- This is the evidence upon which the Appellant founded his claim in negligence. The particulars of the alleged negligence are stated as failure to service or inspect cables for faults. On this evidence the learned trial Judge found that the Appellant and his witness led no evidence as to the failure by the Respondent to service or inspect cables for faults. The learned trial Judge also found that the fault which led to the power surge originated from shop number 36 where the service cable was swinging and rubbing the shackle on the roof leading to the insulation wearing off. The learned trial Judge then observed that there was no evidence that the owner of shop number 36 reported the incident to the Respondent. The learned trial Judge also expressed himself satisfied that when the service cable to shop number 36 was installed it was insulated and that the insulation wore off because of the rubbing. The learned trial Judge accepted Mr. Simbule’s evidence that the Respondent inspects cable when a fault is reported. The learned trial Judge then said the Respondent lays millions of metres of cables and it would be expecting too much to expect the Respondent to know every fault imaginable. He said it would have been different if the owner of sop number 36 had reported to the Respondent of the cable rubbing on the - J6- shackles and the Respondent failed to attend to it. In that case, the learned trial Judge said, the Respondent would have been said to be in breach of duty of care. The learned trial Judge also accepted the undisputed evidence that the only victim of the power surge, among the other shop owners at the market, was the Appellant and the evidence by Mr. Simbule that the damage the Appellant suffered was as a result of not having power surge arrestor installed at his premises. On these grounds the learned trial Judge found that the Appellant had not proved his case and dismissed his claim. In coming to this conclusion, the learned trial Judge relied on our decision in Zaza V Zambia Electricity Supply Corporation Limited!1) where we said that: - "We take judicial notice that power failures do occur in this country from a variety of causes. It seems to us to be wholly unrealistic to expect the supplier of power to guarantee that it will never fail or it will not fluctuate or it will not cut off completely. The supplier is not an insurer and in our considered view the supplier’s duty has in some respects to be co-existent with the customers’ own duty. The customers can take their own precautions with sensitive equipment knowing that power fails sometimes. The Appellant now appeals to this court and advanced four grounds of appeal. - J7 - The first ground of appeal is that the court below erred in accepting the evidence of DW1 to the effect that the Respondent does not inspect or service its cables until a fault occurs and then absorbing the Respondent of negligence. The second ground of appeal is that the court below erred in holding that because the owner of shop number 36 did not report any damage to his equipment then the electricity surge did not cause damage in Shop number 37. The third ground of appeal is that the court below erred in not accepting the evidence that the Respondent failed to produce report of its findings in court. The fourth ground of appeal is that having found facts on the part of the Respondent the court erred in finding against the Appellant (sic). When we heard the appeal the Appellant filed a Notice that he did not desire to be present. However, his counsel Dr. Josias Soko filed written heads of argument. But counsel for Respondent appeared and filed written heads of argument on which he relied. In his written heads of argument, Dr. Soko does not argue all the grounds of appeal or say that he is arguing them together - J8- or that he was abandoning some of the grounds of appeal. Dr. Soko’s heads of argument center on the first ground only. After reciting the evidence of Mr. Simbule (DW1) which is on record, Dr. Soko submitted that the evidence revealed a grave breach of statutory duty of care and that the Respondent should have been found liable in negligence. It was Dr. Soko’s submission that this is not a case of power surge caused by rainstorm or some other natural cause but by the negligence in keeping and servicing of the Respondent’s feed cables. Dr. Soko then referred to Clerk and Lindsell on Torts where the learned authors say that: - “Liability for electricity is the same as for gas. It has been decided that the principle of Rylands V Fletcher(2) applied to electricity. Consequently, the owner of wires or cables through which electric current is passing must keep them innocuous at theirperil(sic)----------- -------- It is negligence to omit to use all reasonable known means to keep electricity harmless. Where an electricity undertaker erected wires carrying electricity of high voltage across field just over the top of a tree which was easily climbable they were held liable for the death of girl of thirteen years------- ” It was Dr. Soko’s submission that the ZAZA easel1) is not comparable to the instant case. He said that if the -J9- Respondent regularly inspected and serviced the cables the incident which caused damage to the Appellant’s property would not have occurred. Dr. Soko then referred us to Section 37 of the Electricity Act of the Laws of Zambia (sic). Rut this section does not exist m C^hapter 433 of the Laws of Zambia, which is the Electricity Act. On these grounds Dr. Soko urged us to allow the appeal because the Appellant had proved his case on a balance of probabilities. In his written submissions on ground one Mr. Chilundu, learned counsel for the Respondent, submitted that there is no evidence to suggest that Mr. Simbule said that the Respondent does not inspect or service its cables until there is a fault. On ground two Mr. Chilundu submitted that in fact the learned trial Judge found that as a result of the incident the Appellant’s property was damaged. On grounds three and four, Mr. Chilundu submitted that the fact that the Regional Manager report was not produce cannot necessarily result in finding for the Appellant. We have carefully considered the evidence that was before the learned trial Judge, the submissions of counsel and the judgment appealed against. - J10 - As we understand the grounds of appeal their cumulative theme is that the Appellant proved negligence on the part of the Respondent. However, in his written arguments Dr. Soko argues the case both as one founded on negligence and strict liability, which is what the case of Rylands V FletcherM which Dr. Soko cited to us is all about. A Plaintiff cannot both plead negligence and strict liability. A Plaintiff who founds his case on negligence cannot call in aid principles of strict liability. Similarly, a Plaintiff who founds his case on strict liability cannot use principles of negligence to prove his case. In strict liability cases, which is in fact a misnomer because there are exceptions, all the Plaintiff has to prove is that there was an escape of the dangerous things complained of from the premises of the Defendant and that as a result of such escape he suffered damage. In an action for negligence the Plaintiff has to prove not only a breach of duty of care but also that because of the breach of duty of care by the Defendant he suffered damage. "Escape” is a condition precedent to the application of the rule in Rylands V Fletcher^2). If there is no escape then there is no liability: See Read V Lyons and Co. Limited^. In this case one cannot say there was an “escape” in the sense it is understood in the principle in Rylands V Fletcher^. Electricity supply was brought by the Respondent to the Appellant’s premises, like any other consumer, on application - JI I - of the Appellant. The question of escape does not, therefore, arise. In the event, even if strict liability was pleaded we would not have upheld it. For these reasons, we are satisfied that the Appellant’s case must stand or fall on the principles of negligence only. As the learned trial Judge found, and as Mr. Chilundu, submitted the Appellant failed to prove negligence on the part of the Respondent. The incident that caused the power surge is not one for which the Respondent can be held liable in negligence. Clearly, the swinging of the supply cable on the shackles at shop number 36 which led to the wearing of the insulation was one of infrequent faults which the occupier of shop number 36 should have reported to the Respondent but he did not. In the ordinary' course of things, a supplier of electricity or even water cannot be expected to be going round everyday checking for minor faults at their customers premises. It is the duty of the occupiers to report faults at their premises to the supplier of electricity in order to avoid damage not only to their property but also to the Respondent’s facility which supplies electricity power: In the circumstances, we do not accept Dr. Soko’s submissions that the learned trial Judge erred when he found that there was no negligence on the part of the Respondent. - J12- We are satisfied that what happened in this case is just one of those various unfortunate incidents which cause power failure for which the Respondent cannot be held responsible. What we said in the Zaza casef1), which the learned trial Judge cited and relied upon, applies squarely to this case. The Appellant cannot use the Respondent as his insurer. The Appellant suffered damage because of his failure to install power surge protectors at his premises. The other occupiers at the market, even the occupier of shop number 36 where the fault, which led to the power surge occurred, whose premises, apparently, had protective devises did not suffer damage. All in all, we are satisfied that the learned trial Judge was on firm ground when he dismissed the Appellant’s claim and we cannot interfere with his judgment. There is no merit in this appeal. Each party will bear its own costs as ordered by the learned trial Judge. D. M. LEWANIKA DEPUTY CHIEF JUSTICE F. N. M. MUMBA SUPREME COURT JUDGE peterchitengi SUPREME COURT JUDGE