BPC escapes P2.9m suit for damages

Mbongeni Mguni | Wednesday November 4, 2015 15:19

The victim, Live Baliki, however still has room for relief as the Court of Appeal returned the case to the High Court for continuation and trial on issues of liability and the sum of possible damages.

Baliki sued the corporation and won at the High Court, arguing that the BPC was liable to pay for damages arising from the destruction, as well as ancillary relief.

Baliki sued the corporation for a February 2007 fire which was caused by an electrical fault, arguing that as the fire was caused by electricity generated by the BPC and supplied through its transmission lines, the corporation was liable for damages.

“The BPC was liable in terms of the common law strict liability attaching to generators of electricity as the manufacturers and distributors of a hazardous product, namely electricity.

“Further the fire and thus the damage, had been caused by the negligence of the BPC or its employees in providing the electricity supplied to the house,” the CoA judges wrote in a summary of Baliki’s arguments.

A bench of three Court of Appeal judges led by Judge President, Ian Kirby, reversed the High Court decision, ruling that the lower court had misinterpreted a section of the law regarding the BPC’s liability. Kirby found that the section of the Electricity Supply Act that the High Court used to rule in Baliki’s favour did not in fact expose the BPC to lawsuits on damages and liability.

Section 11 of the Act states that any lawsuit against a power generation licensee for damages or injury caused by electricity shall not require proof that the damage was caused by negligence. Under the section, damages may be recovered notwithstanding the absence of such proof. The Court of Appeal, however, found that the BPC was not a “licensee” as defined by the Act.

“The judge a quo (in the lower court) was in error to move from the central issue, namely whether or not the BPC was a licensee under the Act, to his own formulation, that is whether or not the BPC was bound to comply with the provisions of the Act,” the CoA judges said.

The judges noted that the BPC Act did require the corporation to pay for all loss or damage caused by it in relation to execution of works or interference with property.

“(However) it makes no reference to damage or injury caused by generation or supply of electricity or the carrying out of electrical installations,” the judges said. In addition, a section of the BPC’s bye-laws from 1979 state the corporation shall “not be liable in respect of any wiring or other work or for any loss or damage caused by fire or other accident arising wholly or partly from the condition of an electrical installation”.

“In the present case the respondent alleges that its damages arose from a fire caused by an electrical installation, so there can be no question of the BPC being strictly liable under the common law,” the CoA ruled.