In law and in life, whoever is responsible for damage, has to pay. This is a basic principle of civil law, enshrined in Articles 1031, 1032 and 1033 of the Civil Code, Chapter 16 of the Laws of Malta. These articles hold that a person is bound to act with diligence and prudence, failing which, any harm caused to somebody else by action or omission makes him liable for damages.

On October 5, 2023, the Superior Court of Appeal in a judgment in the names of GO p.l.c. vs Schembri Infrastructures Ltd et, dealt with this principle. However, before delving into this judgment, a look will be given to the judgment by the Civil Court First Hall of April 3, 2019.

Civil court's decision

The facts were as follows. On April 28, 2011, GO, the plaintiff company alleged that while the respondent company Schembri Infrastructures was carrying out infrastructural works at Għar Dalam Street, Birżebbuġa on or shortly before March 20, 2007, it caused it damages to its cables amounting to €72,960.40. The respondent company’s insurers, Mapfre Middlesea p.l.c. and Elmo Insurance Ltd were later called into the proceedings, of course, as respondents.

Schembri Infrastructures argued that it was not responsible for the damage suffered by GO and that it was GO, through its own negligence and lack of attention that led to the damage being caused. The insurers, in their respective replies (along with pleas regarding the merits) pleaded that they had no juridical relationship with the plaintiff company and that thus they should be released from the consequences of the judgment. That plea was upheld by the court. No appeal was lodged on this point and thus the Court of Appeal did not have any authority to delve into it.

On the merits, the court had to ascertain whether the respondent company Schembri Infrastructures Ltd was responsible for the damage or not. It examined the evidence as well as the relevant provisions of the law. Essentially, before the works by Schembri Infrastructures had started, GO’s representative marked the location of its cables with a green colour so that the works would avoid those areas.

Schembri Infrastructures held that GO had not completed this exercise correctly and that was why the damage ensued.

The court considered Condition 14 of the General Conditions of the permit of works held by Schembri Infrastructures.  This stipulated that while the employees of the entities (in this case GO) had to be precise in marking the locations of the cables, these were only indicative in nature and should in no way be interpreted as exonerating the contractor (Schembri Infrastructures) if the markings were done incorrectly.

However, the court interpreted this as meaning that GO had the obligation to indicate precisely where its cables were, despite this obligation featuring nowhere in the permit. It considered that GO had failed to prove that the markings were made anywhere close to the actual location of the cables and observed that these were only done in a general way. The Civil Court First Hall declared that in view of conflicting versions, was not convinced that Schembri Infrastructures was at fault for the damage. It concluded that GO did not prove its case according to law. It therefore proceeded to reject its claims in their entirety.

GO files appeal

The Court of Appeal disagreed. It made reference to Articles 1031, 1032 and 1033 of the Civil Code, previous jurisprudence as well as the facts at hand. The argument was that the first court failed to properly examine the facts and particularly all obligations imposed on Schembri Infrastructures and its breach of same.

GO (the appellant company) argued that the First Court failed to correctly apply the legal principles at play including those regulating the level of proof required. It argued that the First Court had essentially twisted the meaning of Condition 14 of the permit because nowhere did it impose on it the obligation to indicate precisely where its cables were. Indeed, it was expressly written that even if the markings were incorrect, the respondent company Schembri Infrastructures (the appealed company) was not exonerated from responsibility.

Breach of permit conditions

So what were the other conditions which the appealed company Schembri Infrastructures had breached? From the outset, the works were conducted with heavy and invasive machinery and not with hand tools as recommended by the permit. Its architect himself confirmed that they worked with such machinery.

Moreover, Schembri Infrastructures had to inform GO’s Technical Executive before trenching works were taken in hand so that he could go on site and locate the cables. But GO were never informed by Schembri Infrastructures that it was commencing trenching works.

It also resulted that the road in question had been widened and that consultation before the works commenced was even more important than before. The two witnesses who explained this had not been cross-examined by the appealed company.

Moreover Schembri Infrastructures, when it had conducted pilot holes (to detect the location of the cables),  had not found the cables and did not dig further in order to find them.

This led the Court of Appeal to conclude that the appealed company Schembri Infrastructures was negligent and thus responsible for the damage that ensued. It emphasised that the contractor was obliged to inform GO three working days before starting works. This was not done.

The court also remarked that from the testimony of Schembri Infrastructures’ architect himself, it resulted that when digging, the company had found two ‘dead’ cables belonging to Enemalta, then another cable was observed. The appealed company assumed that it was also a dead cable but then realised that it belonged to Maltacom (GO), not Enemalta. The court thus upheld GO’s appeal.

The Court of Appeal liquidated damages in the amount of €69,785 payable Schembri Infrastructures to GO. Interest was deemed to run from the date of the judicial letter, 8th of January 2008.

This judgment is final.

Dr Celine Cuschieri Debono is an Associate at Azzopardi, Borg & Associates Advocates.