A recent case – Negligent Electrician
This week I wish to summarize a recent case. It is an appeal from District Court to High Court. It considers the liability in negligence of an electrician.
Angus Kenson (AK) v Shahnaaz Enterprises (SE).
SE owned a building in a shopping mall in Porirua. It was leased by a Pastor of a church (Lessee) from early 1998. The Lessee wished to have some internal alterations done to the premises. He engaged a plumber to install a second hand hot water cylinder in the premises, and to carry out some plumbing work there. AK was engaged to connect the electrical wiring to the hot water cylinder. AK checked the cylinder, connected the wiring, turned on the cylinder and left the premises. The cylinder installation was not in fact complete. A safety vent remained to be installed. After the water in the cylinder had heated for several hours, a build up of steam in the tank caused a bomb-like explosion. In the result, SE suffered damage to its premises in the sum of $57,231.69.
SE issued proceedings against the lessee, the plumber and AK. The Judge found all three parties liable in negligence. They were all deemed jointly and severally liable to SE. No cross-claims had been issued between the parties. However to be helpful as far as payment of the judgment sum was concerned, he indicated the percentage of liability he would have apportioned to the co-defendants if he had been asked to rule upon it as being:
5% Contributory negligence
15% by the Lessee
40% by the Plumber
40% by the Electrician
The Lessee was insolvent, and the plumber was unable to make payment of the judgment sum. Thus SE looked to AK to meet the judgment debt. The effect of a judgment which is joint and several being, that SE could choose to enforce it against any one of these co-defendants.
An appeal was lodged by AK, based on a challenge to a finding of fact made by the District Court Judge.
The basis of the claim in negligence against the AK was twofold. Firstly that AK had failed to adequately liase with the lessee and the plumber to ensure that the cylinder could be safely connected to a power source. Secondly, that AK had failed to ascertain that it was in fact safe to connect it to a power source. The Appeal Judge believed that within this second basis of negligence, were two further sub-paragraphs a) and b) of negligence
Failing to test the water circuit properly.
Failing to test the thermostat properly.
In relation to issue b), it seems that the trial judge left it undecided as to whether in fact the thermostat had been properly tested. In relation to issue a), it was a critical step for AK to ensure that water was flowing through the cylinder. AK’s evidence was always to the effect that cold water was indeed flowing through the system and out through the tap. It was therefore safe to “go live”. This was also the position taken by the plumber. But then (which was quite an unusual step), the Judge allowed the plumber to be recalled (late) ostensibly to clarify the evidence relating to the flow of water and the taps.
The plumber at this point, recalled that in fact the hot water cylinder was not supplying water to the sink. This evidence totally contradicted the statements he had previously made to the building inspector and the loss adjuster, not to mention the evidence of the electrician, who had deposed to having tested whether the relevant water cylinder was operational, by turning on the hot water tap over the sink.
Unfortunately for AK, at District Court level, the plumber’s evidence had been preferred, and at High Court level, the Judge was unwilling to reopen this factual finding, despite having reservations about it. It followed therefore, that there had been a negligent act by the electrician, in not properly testing to see whether in fact the water cylinder was operational.
However, the High Court Judge did overrule one statement as to law made by the District Court Judge. The District Court Judge had stated at paragraph 96:
“In my view, an electrician owes a duty of care to ensure that anything the electrician connects to a power source is safe to be so connected.”
But in contrast the High Court Judge said this statement was far too broad. He stated:
“It cannot be suggested that an electrician has to in effect disassemble or audit something to make sure it is intrinsically safe before it is connected.”
This statement would be a relief to electricians.