Case number: D/98/15
Date of Decision: 18 February 1999
Decision accepted by the customer: Yes
A customer who operated a sewerage and drainage contracting business contacted EIOV. The customer claimed that a pole he had asked an electricity company to brace had collapsed due to the incompetence of the company. The customer was seeking $6,122.10 compensation for costs incurred. The electricity company claimed that the pole collapse was the result of the customer's actions, and it counter-claimed $1,575 for costs incurred. Most of the costs claimed by both parties were labour costs associated with rectifying the pole collapse.
When EIOV sought the electricity company's response to the customer's claim, it emerged that the company and the customer had different accounts of what had happened prior to the collapse of the pole. The company stated that the customer had been advised by phone that excavation closer than two metres from the pole at a depth of one metre would require a "digger" support. The customer stated that, at a site inspection, it showed and discussed with the company a plan that clearly showed the pit location and the excavation line. The company denied this.
After another site inspection, the company decided to brace the pole using a task truck support, positioned adjacent to the pole and attached to the butt of the pole by a support cable. The pole collapsed one to two hours after the company inspected the excavation and its bracing.
The company claimed that the pole had collapsed as a result of the customer removing all of the supporting soil, contrary to clearances agreed to at an earlier meeting. The customer denied that it had deviated from the distances that were marked on its construction plan, and stated that it had relied on the company's expertise to select an appropriate pole support method. Both the customer and the company provided EIOV with photographs of the site after the pole collapse.
As part of its investigation process EIOV obtained independent technical advice about the case. Among other things that advice stated that the site photographs showed bucket "teeth" marks visible in the clay close to the pole. It also stated that the company had failed to provide the customer with clear written instructions.
As the case clearly involved electrical safety issues, EIOV also obtained advice from the Office of the Chief Electrical Inspector (OCEI). OCEI advised that in its opinion the electricity company's assessment of the pole support requirements was inadequate. It further advised that, in its opinion, the customer had contributed to the collapse of the pole by failing to provide the company with adequate technical drawings, showing the extent of the excavation that was needed to allow construction of the pipeline.
EIOV also sought independent legal advice regarding jurisdiction, the amount of both parties' claims and apportionment.
As the dispute could not be conciliated, it proceeded to a Binding Decision by the Ombudsman. The Ombudsman took into account a number of factors, including the evidence provided by both parties, independent technical and legal advice, relevant regulations and OCEI's advice.
The Ombudsman took the view that it was reasonable for the customer to expect that the company would have some expertise in selecting the most appropriate pole bracing method, and this was not done. On the other hand, it was reasonable to expect that the customer, given its area of business, should understand that if it excavated very close to the pole, that the pole could collapse.
The Ombudsman therefore determined that both parties contributed to the partial collapse of the pole. The Ombudsman decided that the electricity company and the customer should each bear 50% of the responsibility for the incident.
The Ombudsman regarded the customer's labour, equipment and administration costs as excessive. The customer's substantiated claim was reduced to $3,760. On this basis, the Ombudsman found 50% of the customer's claim to be $1,880 and 50% of the company's claim to be $787.50, making a nett differential in favour of the customer of $1,092.50. The Ombudsman determined that, subject to the execution of cross-releases signed by both parties, the company should pay the customer $1,092.50.
The Ombudsman further directed that the company implement changes to its policies and procedures relating to requests for pole bracing. Specifically, the Ombudsman recommended that the company include in its policies and procedures that agreements with contractors working near the company's assets should be in writing.