Kapusa v Electricity Supply Corporation of Malawi Ltd. (Civil Cause 225 of 2014) [2018] MWHC 44 (1 June 2018)

\h ig h c o u r t U B R A f i V IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 225 OF 2014 BETWEEN MATHIAS KAPUSA ........................................................................ PLAINTIFF AND ELECTRICITY SUPPLY CORPORATION OF MALAWI LIMITED............................................................... DEFENDANT CORAM: HON. JUSTICE R. MBVUNDULA Khondiwa, Counsel, for the Plaintiff Kambauwa, Counsel for the Defendant Mithi, Official Interpreter JUDGMENT The plaintiffs action is for damages for the defendant’s alleged negligence resulting in the destruction of his house and household property when the same were destroyed by a fire which he claims was a result of a fault in the defendant’s electrical installations. The plaintiffs house was supplied with electricity by the defendant and it is the plaintiffs claim that before the house went ablaze some sparks were noticed at the point where the defendant’s power line connected to the plaintiffs house after which smoke was seen coming from one of the bedrooms. Efforts to put out the fire failed and by the time the fire brigade arrived the house and all its contents had been burnt. l Mrs Zelesi Banda, the only eye witness called to testify, told the court that she saw a huge fire around the power lines connecting to the plaintiffs house and when she saw smoke coming out o f the house she believed that the fire which started at the point o f connection between the defendant’s power line and the house was an indication that the fire had gone inside the bedroom and was spreading further. In cross examination Mrs Banda said she did not know how the fire invaded the plaintiffs house through the wall in between the connection from the defendant’s power lines and the inside o f the house given that there was no opening in between. She was insistent that the fire did not start from inside the house. Several pictures taken after the incident were shown to Mrs Banda during cross examination which showed that the insulation tapes around them were still visible which fact Mrs Banda confirmed. Mrs Banda who at a point sought to insist that there had been a huge fire around the wires conceded that this was not so. It would seem therefore that all she saw before the fire were sparks and not a big fire, for a big fire would not have left the insulation tapes largely intact. The plaintiff was not present when the fire started. He arrived after the house had been completely burnt down. He was informed that there had been some sparks and drew the conclusion that the fire was caused by the sparks. The plaintiff, who according to his own testimony, was not conversant with electricity operations, said he obtained no professional opinion. He would not agree that there was something inside the house which caused the sparks outside. The plaintiff observed that the fire had concentrated in the main bedroom. He said there were no sockets nor electrical appliances in that room and that lights and appliances in the house were off when he left house. It was the evidence o f both the plaintiff and Mrs Banda that there was no one at the house at the material time. Mr Joe Ngwenya Zisiyana, employed by the defendant as its District Engineer for Blantyre District, testified for the defendant. He stated that his duties, among others, were the management o f technical and administrative operations o f the defendant in the District and this included Ndirande, where the plaintiffs house was located. Technical operations, he said, involved overhead line maintenance and attending to faults and customer complaints. He stated that on the material day the defendant’s Chichiri faults desk received a report that a house at Ndirande Safarao was on fire. Being the District Engineer he was informed about it. He went to the scene immediately after getting the report, arriving there around 4.30pm whilst the house was still burning and the fire still very intense. Mr Zisiyana placed before the court a report on the findings of that response signed by one D M Mbewe, the defendant’s Regional Manager (South) but which he said was originated by him. According to the report as well as the oral evidence o f the witness the approach taken to establish the cause o f the fire was by way of observations, interviews and voltage measurements. It is stated that the interviews with the plaintiff (who was not at the scene at the material time) revealed that there were only children at the house. Neither the report nor the testimony o f Mr Zisiyana refers to the interview o f any eye witness. As for other material findings the report states, inter alia, that the meter board, meter and cut out unit were all burnt out; the service line was intact; concentration o f the fire was in one of the bedrooms. It also states that voltage measurements were recorded. And that the supply was disconnected. The conclusion reached by the defendant’s personnel was that even though the meter, cut out and the entire distribution board were all burnt out, the fire could not be attributed to a fault on the defendant’s supply side or network as evidenced by the concentration o f fire in the bedroom, and therefore that the likely cause o f the fire was an internal problem on the customer’s side. In further cross examination, with reference to his statement that despite that the meter, cut out unit and the entire distribution board were all burnt out the fault could not be attributed to the defendant’s supply side as evidenced by the concentration o f the fire in one o f the bedrooms, the witness said that the defendant’s side ends at the meter and the meter was on the walls outside. He agreed that fire can be concentrated because o f the amount o f combustible material in that room and that the fire could have concentrated in that room because o f the combustible material in that room. A t the end o f cross examination Mr Zisiyana said that he did not know what caused the fire. Mr Zisiyana agreed that the report was “as good as its sources” such that if the sources were wrong or vice versa so were its contents. He conceded that the observations contained in the report were made after the fire had already started; that he interviewed M r Kapusa who was not there when the fire started; that voltage readings contained in the report were taken after the fire had started. He said he did not think that the measurements might have been different when the fire started. When asked why one would take the voltage measurements if they would be the same, and if they varied from time to time, he said that when there is a fault and nobody has gone to rectify that fault the readings would be the same, which suggests that if there was a fault before the fire the readings would be the same before as after the fire. A fault, he said, would change the normal readings. The report does not state whether the readings were normal or otherwise. The sum o f the evidence establishes that sparks on the defendant’s line were seen before the fire in the plaintiffs house. It also shows that it was only on the line leading to the plaintiffs house where there were sparks, and in turn it is only the plaintiffs house which caught fire. Further the evidence o f the defence has shown that the meter, cut out unit and the entire distribution board were all burnt out and these were on the defendant’s side of the house where the sparks emanated from. No explanation has been given by the defendant why this was so but on the other hand the plaintiffs witness’ observation was that this is where the fire started. The defence witness expressly admitted he did not know the cause of the fire. In other words the defendant’s attempts to show that the fire started inside the house were merely cosmetic and therefore in vain. Sparks on the defendant’s side of the connection and ultimately the fire which burnt part of the defendant’s side o f the electrical installations, are an abnormal occurrence, in other words, a fault. No evidence is before this court that there was a fault on the plaintiffs side of the installation as no eye witness testified to that effect nor did the defendant rebut the plaintiffs assertions. The defendant’s witness only speculated as he was not there when the fire started nor did he, as an engineer, and presumably an expert, satisfy this court that such was the case. The plaintiffs burden is to establish that it is more probable that the genesis o f the fire were the sparks on the defendant’s side of the house. This court accepts it to be so because there is no plausible explanation as to the coincidence between the occurrence o f the sparks on the defendant’s side o f the electrical installations and the immediate fire in the plaintiffs house. The burden, in this court’s view, has therefore been discharged. As such this court finds the defendant liable to the plaintiff in negligence as pleaded by the plaintiff and awards damages to the plaintiff, to be assessed, and costs o f the action. Pronounced in open court at Blantyre this 1st day o f June 2018. JUDGE 5