Energy Safety Service remedied initial inadequate investigation of accident

Regulatory and investigative agencies
Ombudsmen Act 1975
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Ombudsmen Act 1975
Energy Safety Service
David McGee
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Manner in which Energy Safety Service carried out investigation inadequate—however further inquiries made later—Ombudsman satisfied with later inquiries and concluded the decision not to prosecute not unreasonable in the circumstances       

A father of a child who received electric shock on an electric fence between his rental property and an adjoining property complained to the Energy Safety Service (ESS). ESS advised the owners of the fence that it should be mindful of the safety regulations in relation to placement of electric fences, and told the complainant that the matter would not be taken further. Dissatisfied with this response, the complainant made a formal complaint to the agency (which at the time was a part of the Ministry of Economic Development) and then to the Ombudsman, alleging that the ESS’s consideration of the complaint had been unreasonable.

The Ombudsman considered the manner in which ESS carried out its investigations, and the decision reached by ESS not to prosecute the landowners who had placed the fence on the boundary.

The Ombudsman concluded that the decision not to prosecute was one open to ESS to make, and that ESS had the expertise and experience in reaching decisions on which matters to pursue to prosecution. Additionally, it had sought legal advice on the prosecution issue and the Ombudsman considered it was not unreasonable to rely on that advice.

With regard to the investigation carried out by ESS, the Ombudsman noted that ESS had accepted its initial investigation processes had been inadequate but maintained that the complaint was taken seriously. ESS noted that it had already remedied the standard of the initial investigation by making further inquiries – following which, ESS had sought legal advice. The Ombudsman considered that the subsequent investigation had not been unreasonable. The Ombudsman also noted that while it was understandable that the complainant had destroyed the fence after the accident, the effect of doing so, given the differing accounts of the complainant and the property owner, meant ESS’s ability to determine all the facts in this case were hampered. The complaint against ESS was not sustained.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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