The First Hall of the Civil Court, presided over by Madame Justice Lorraine Schembri Orland, on January 16, 2014, in the case ‘Arca Limited v Guy Williams’, held, among other things, that the supplier was not responsible if the malfunction of a lift was principally due to lack of regular cleaning resulting in the accumulation of dust and dirt in the gap of the door of the lift.

The facts in this case were as follows:

Arca Ltd filed legal proceedings against Guy Williams to recover Lm5,428, the outstanding balance of the price for works carried out in a property in Marsascala. Arca Ltd claimed that this debt was certain, liquid and due and that Williams had no defence.

It requested the court to decide the case without proceeding to trial in terms of article 167 of Chapter 12 of the Laws of Malta, and to condemn Guy Williams to pay the sum of Lm5,428.

Williams, in reply, contested the legal action against him on the grounds that the claims were unfounded and should be dismissed. He pleaded in his defence that no amount was due for the airspace in question, as the amount had already been paid.

He contended further that there was no amount due for the works in relation to the installation of the lift. Allegedly, before the lift was installed properly, Arca Ltd could not demand payment. He stated that the lift did not work properly.

During the proceedings, the parties agreed that the price for the airspace had been paid and that the amount in dispute concerned the execution of works for the lift.

It resulted that, by the contract published in the acts of Notary Pierre Cassar, dated October 26, 1995, Williams acquired two garages and the airspace over apartments numbers 5 and 6 of Arca Buildings in Marsascala as well as “a share in ownership of the common parts, that is the entrance hall, landings, lift shafts, lift, drains and drainage system and other services intended for common use of the block of buildings above described”.

Arca Ltd delayed to install a lift and commissioned a third party. It paid for the lift and, after the works were carried out, Williams did not pay, on the pretext that the lift did not function properly. It was stated that the lift frequently malfunctioned and often got stuck.

Williams claimed that the lift did not have the specifications requested. Unauthorised users would be trapped inside and would have to force open the door to exit.

It so happened that, if a person tried to use the lift without a key, as soon as he would depress a button in the lift to go to another floor, the lift would cease immediately. It was stated that the alarm in the lift could not be heard throughout the block.

The director of the company which provided the lift attributed the fault to the accumulation of dust and dirt in the gap of the door of the lift. He said that, as a consequence, the door of the lift did not close properly and the lift ceased to function. The road outside was not yet asphalted and this aggravated the problem of the dust.

The court said that maintenance to the lift had not been done and this failure was the principal cause why the lift did not work properly

The technical referee reported that there was no proof that Williams asked for a security lift. The lift had been inspected and certified to be in good order. It appeared that the lift was well constructed mechanically. It was in a good condition and the safety devices were working well.

The technical referee found that there was a water pipe passing through the shaft of the lift which was contrary to regulations and suggested that it should be removed immediately. The referee gave a number of reasons why the lift malfunctioned:

• there was no electricity connection to the lift. The referee said that the lift was made according to the specifications which were given to the company that supplied the lift; and

• there was an accumulation of dust and rainwater, and lack of regular cleaning.

The court maintained that the level of negligence required by Maltese legislation, whether contractual culpa (negligence) and or culpa aquiliana (tort) was the same; re: ‘Gaetano Spiteri pro et noe v Thomas sive Tom Castle (PA)’ dated August 18, 1965.

This did not mean that there were no other differences which applied in our legal system between these two types of responsibilities, in particular in respect of:

• the onus of proof;

• juridical effects; and

• the time limit to file an action for damages.

In this case Williams had to prove in his favour what contractual obligations had to be performed and that Arca Ltd failed to perform. Arca Ltd had to justify such non-performance by showing some factor that was beyond its control.

The court said that Williams did not prove that the lift was installed badly and that it was not good for use after installation.

The court noted that the technical referee concluded that the lift was constructed properly, that it was in a good condition and that the safety devices worked properly. It was shown that the lift stopped not because its engine was faulty.

In addition, it did not appear that the lift had to have particular specifications. The court noted that the lift stopped working when Enemalta severed the power supply owing to non-payment as well as due to dirt, dust and rainwater which seeped through the gap between the door of the lift.

It blamed Williams for these failures as, together with the other co-owners of the apartments in the block, he was jointly responsible for the maintenance of the property as a bonus pater familias.

In addition, the problems with the lift could have been avoided by regular cleaning. The court said that maintenance to the lift had not been done and this failure was the principal cause why the lift did not work properly. Also, Williams should have placed signs to warn unauthorised persons not to use the lift.

For these reasons on January 16, 2014, the First Hall of the Civil Court accepted Arca Ltd’s requests and condemned Williams to pay €12,643 with legal interests.

Dr Karl Grech Orr is a partner at Ganado Advocates.