Tuesday, November 8, 2011
In an action against Hydro One, the Cowans alleged that the decline in their herd’s milk production was due to the presence of tingle voltage (or stray voltage) caused by the Hydro One system. A trial was held to determine if this was so and to assess the damages alleged to have been suffered. The Cowans claimed negligence and breach of contract against Hydro One and, in addition, made a claim for punitive damages. Justice Robbie Gordon dismissed the farmers' claims, finding that causation was not proved (i.e. the Cowans failed to show that their damages, which would have been assessed to be $823,053.77, were caused by Hydro One).
Tingle voltage and stray voltage are terms used to refer to the same phenomenon, namely, the difference in voltage potential between two points that a farm animal might make contact with at the same time. The word “potential” is used because it is only when an animal touches the two objects, each with a different voltage potential, that its body completes an electrical circuit allowing current to flow from one object, through the animal, to the other object. If the difference in voltage between the two contact points is high enough, the animal may feel a tingling sensation, and hence the term tingle voltage. In fact, what the animal is exposed to is the current in the circuit, not the voltage on the points of contact.
On the question of negligence, Justice Gordon ruled that Hydro One owed a duty of care to the Cowans to ensure that electricity was safely delivered to them. Also, their relationship was of sufficient proximity to warrant the existence of the duty of care - it would be reasonably foreseeable that a failure to provide electricity safely could result in harm to Hydro One's customers. In order to prove negligence, the Cowans had to prove conduct on the part of Hydro One that created an unreasonable risk of harm to them.
Justice Gordon found that tingle voltage levels in the Cowan barn were prone to frequent fluctuation due to the loads in use. Tingle voltage levels would also vary dramatically depending upon where in the barn one is situated. He was satisfied that on a given day, steady state tingle voltage levels at certain cow contact points will regularly exceed one volt; that on a given day, but with less frequency, steady state tingle voltage levels at certain cow contact points will exceed two volts but not exceed three volts; and, that on a given day, but with much less frequency, certain cow contact points will be exposed to transient tingle voltage levels in excess of three volts.
Justice Gordon also determined that, but for the Hydro One system, the tingle voltage on the Cowan farm was reduced to negligible levels. The question then was whether there any conduct on the part of Hydro One that created an unreasonable risk of harm (i.e. negligent conduct). The Cowans alleged: (1) Failure to ensure that the primary neutral was directly bonded to the secondary neutral by a jumper wire; (2) improperly placement of a sentinel light on the transformer pole; (3) failure to maintain adequate grounding along the F2 line; (4) failure to follow its standards and procedures for testing tingle voltage and resolving the tingle voltage issue at the Cowan farm; (5) failing to monitor and control current and voltage imbalance on the distribution system; and (6) failing to maintain a primary neutral wire of sufficient capacity.
Although Justice Gordon found that, in some instances, Hydro One could have done things differently, he noted that the standard of care expected of Hydro One is not perfection. That it could have taken steps that it did not was not the end of the inquiry. It was also necessary to determine whether those actions breached the required standard of care, that is, whether those actions created an objectively unreasonable risk of harm having regard to the likelihood of a known or foreseeable harm, the gravity of that harm, the burden of cost which would be incurred to prevent the injury, industry practice, compliance standards, and statutory or regulatory standards.
Following his analysis, Justice Gordon found that Hydro One's practice of notification of farmers about the risks of tingle voltage was inadequate. It was not enough to stuff bills with an information pamphlet on a few occasions. The standard of care required that Hydro One have direct contact with customers it knew to be potentially vulnerable to advise them of increased risk. Therefore, the Cowans were successful in establishing that Hydro One owed them a duty of care and breached the standard of care. However, it still remained to show that they had suffered damages that flowed from the breach of the standard.
Justice Gordon accepted that voltage of the level and nature of those found to exist on the Cowan farm could, over the long term, lead to health and production issues for dairy cows. He was not satisfied that such voltage levels adversely affect production without a contemporaneous effect on health, but he was satisfied that such voltage levels can lead to various health problems which can ultimately affect production. The question was still whether the damages suffered by the Cowans were caused by the negligence of Hydro One.
In the end, the Cowans were unable to prove this element of causation. Justice Gordon found that Hydro One proved on a balance of probabilities that inadequate farm labour likely contributed to production problems in the dairy herd. Other contributing factors could not be identified because of the inadequacy of the records kept by the Cowans. On the whole, Justice Gordon was not satisfied on a balance of probabilities that tingle voltage was a contributing factor to the production issues experienced on the Cowan farm. That it would have had a negative effect on production was belied by: (1) The positive production levels for the farm in 1995 and 1996; (2) the acceptable somatic cell counts recorded for most of the time the farm operated; and (3) the lack of health issues on the farm that ought to have been apparent had tingle voltage been causing significant stress to the cows.
Because causation was not proven, the Cowans' claim for breach of contract failed as well. Justice Gordon also addressed the defence put forward by Hydro One based on its "Conditions of Service", which are implied terms of its contract with its customers. The Conditions of Service currently limit Hydro One's liability for damages to those arising out of its negligence and exclude any liability for "any loss of profits or revenues, business interruption losses, loss of contract or loss of goodwill, or for any indirect, consequential, incidental or special damages, including but not limited to punitive or exemplary damages, whether any of the said liability, loss or damages arise in contract, tort or otherwise." These terms are set down by the Ontario Energy Board through the Distribution System Code. Justice Gordon ruled that the terms did not affect the Cowans' claim, as they came into effect in 2002 - long after the alleged negligent conduct of Hydro One.
Read the decision at: Cowan v. Hydro One.