Damages caused by a incompetent contractor, will be charged to the party who engaged that contractor. This was held in a Court of Appeal judgement on 5 November 2020 in Lucia Fenech -v- Christopher Frendo and Y Projects Limited called into suit.
The Court of Appeal was presided by Mr Justice Lawrence Mintoff.
The appeal is following a judgement delivered by the Small Claims Tribunal, which upheld the pleas submitted by Y Projects, after it had been called into suit.
The Tribunal turned down the pleas raised by the defendant and upheld the claims of Lucia Fenech, where the defendant was ordered to pay Fenech €1617.76.
This represented damages caused to Fenech’s skylight and air conditioner, following works carried out in the defendant’s apartment.
The defendant, Frendo, held that Fenech’s claims were time barred in terms of Article 2153 of the Civil Code and that the claim is excessive.
The Tribunal held that the Small Claims Tribunal Act allows that a measure of equity be applied. Both Frendo and Y Projects are claiming that the action is time barred of two years under Article 2153 of the Civil Code.
The Tribunal pointed out that Frendo & Y Projects have different legal positions from each other the Tribunal In Frendo’s statement of defence, he defended the case stating that the claim was excessive.
There is caselaw which state that this plea and the plea of prescription are incompatible. One cannot argue that the action is time barred and then argue at the same time that the amount sought is excessive. This was held by the Court of Appeal in Guido J. Vella v Dr Emanuel Cefai decided on 5 October 2001.
The plea that the claim is excessive is in itself admitting that an amount is due.
The damages took place in 2014, however Y Projects were involved in the case in 2019. In between there was no interruption of the prescription period and therefore the two-year period had elapsed.
As to the merits of the case in 2014 the applicant had seen that a large rock had passed through his skylight and caused damages. They noticed that the air conditioner unit was also damaged.
The evidence showed that Frendo had spoken to Fenech and told them that the contractor will carry out the remedied works.
The Fenechs had to do the work because of some issue with the access to the property from third parties.
Frendo had testified that he was not accepting responsibility because the contractor had carried out the works and caused the damages.
The Tribunal in its decision held that it is convinced that was the Defendant’s fault and had tried to shift the blame to the company.
The company showed that its workers were not the workers on the defendant’s property and there were other contractors working on the same property.
The Court of Appeal, presided over by Mr Justice Lawrence Mintoff, dealt with the ground of appeal presented by Frendo. The Defendant pointed out an email exchange with Y Projects who accepted to change the skylight and therefore, the company is legally responsible for the damages.
The company repeated that is not responsible for the damages of the skylight and air conditioner.
As to the email exchange, the company explained that it was engaged to fix the skylight by Frendo and not an admission. It was Frendo who asked the company to handle the works.
The Court complemented the Tribunal for identifying the correct articles of law and the correct issues at law.
The Court held that Article 1037 of the Civil Code is pivotal in deciding the issues at hand, which reads:
“Where a person for any work or service whatsoever employs another person who is incompetent, or whom he has not reasonable grounds to consider competent, he shall be liable for any damage which such other person may, through incompetence in the performance of such work or service, cause to others.”
The Appellant, Frendo, tried to convince the Tribunal that the damages were not caused by him and the persons who he engaged were competent, however, he also attempted to blame the company for these damages. The Company did not have any of this and held that it was nor responsible.
The Court pointed out that Frendo had admitted that he engaged Y Projects because it was carrying out works in his property. Y Projects held that it was going to be paid by Frendo for these works.
Furthermore, it was established that the company’s employees were not the only workers on the site.
As a matter of conclusions the Court agreed with the Tribunal and dismissed the appeal.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
The article is available on MaltaToday
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