The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Geoffrey Valenzia and Mr Justice Caruana Demajo, on April 19, 2012, in the case “Joe and Antonella Xerri vs Caruana & Cini Company Ltd and Carmel Portelli, who was joined to the proceedings”, held among other things that, in a contract of works (appalt) it was no excuse for a worker to plead that he followed the directions of another person. He was fully responsible for the quality of his work. In this case, a supplier was held partly to blame for providing the wrong glue.
The facts in this case were as follows.
In case he was ordered to use poor quality material, the tile layer was obliged to refuse to do the work. He could not escape responsibility on the pretext that he followed instructions of the owner or of a third party
Joe and Antonella Xerri wished to change the tiles around their swimming pool at their residence in Għajnsielem.
They approached the company Caruana & Cini Company Ltd and ordered a consignment of ceramic “gres” tiles.
It so happened that their tile layer, Carmel Portelli, followed the recommendations of the company to lay the new tiles over the existing tiles by using glue which the firm supplied.
At the time, Mr Portelli was hesitant to follow this process but he agreed to carry out the task allegedly on assurances provided by the company.
The works were completed in 1991.
Mr and Mrs Xerri became pre-occupied that the tiles were not fixed properly.
By August 1991, a few months after the tiles were laid, they noticed that some of them had moved out of place, and were about to fall off.
To rectify matters, the whole area had to be re-tiled, at additional expense.
At issue was whether Caruana & Cini Company Ltd should be held liable for giving wrong advice.
The Xerris, on one side, expected the company to take responsibility.
The company on the other, disclaimed ~liability and blamed the tile layer for poor workmanship.
The Xerris demanded re-imbursement of Lm1,403 (€3,270).
Faced with this situation, the Xerris filed legal proceedings against Caruana & Cini Company Ltd for damages before the Court of Magistrates in Gozo.
In reply the company contested the legal action and submitted in its defence that:
• It was not indicated on what legal basis, it was obliged to pay damages;
• It disputed providing advice to Carmel Portelli on how to re-tile the swimming pool area, nor did it result that they acted in accordance with instructions provided by the manufacturer of the products.
Mr Portelli, who was joined into the proceedings as defendant, rebutted responsibility. He contended that the legal action against him was premature, as he was not requested to repair the work.
He, in addition, raised the plea of prescription in terms of article 2149(a) and 2153 Civil Code.
As regards the merits, he claimed to have laid the tiles in accordance with the directions given by the company.
On May 7, 2009, the Court of Magistrates (Gozo) attributed full responsibility upon Mr Portelli, the tile layer.
Technical report: The court accepted the technical expert’s report.
It noted that the method and material used to lay the tiles was not adequate and that this was the cause of the problem.
It was stated further that the wrong glue was used and that no regard was made to the different expansion rates ofthe tiles.
Reference was made to Digesto Italiano Vol. III and to Maltese case-law.
In a contract of appalt, a worker was obliged to carry out the works according to the standards of the trade.
He was liable for defects owing to poor workmanship as well if he used inferior quality material.
In case he was ordered to use poor quality material, he was obliged to refuse to do the work.
He could not escape responsibility on the pretext that he followed instructions of the owner or of a third party.
He was responsible for the work and for any defects thereto, pointed the Court.
It was no defence for a worker to say that he acted upon directions of another person, Reference was made to “Farrugia vs Portelli et” (CA), dated October 9, 1987.
If a worker was not satisfied with the recommendations provided by a third party, he should not have accepted to do the work in such a way.
Once he accepted, he assumed full responsibility and was liable for any defects, maintained the court.
The Court of Magistrates (Gozo) was of the opinion that Mr Portelli showed lack of experience and was to blame for the damages.
It dismissed the plea of prescription (two years had not lapsed) and declared the tile layer fully responsible for the damages suffered as a result of his poor workmanship in laying the tiles around the swimming-pool.
He was condemned to pay €3,270.
Aggrieved by the decision of the Court of Magistrates (Gozo), Mr Portelli entered an appeal, calling for its revocation.
He claimed that the court should hold the Caruana & Cini Company Ltd responsible for furnishing wrong advice.
He submitted further that he had exercised a high level of diligence in the circumstances.
The tile company insisted that the tiles were not laid properly. It denied giving wrong advice, saying that it only gave tips or suggestions on how the tiles should be laid, without taking responsibility.
It was not proven, it said, that the glue was purchased from them.
In any event, even if it resulted that they had sold the glue, Mr Portelli was responsible for not using the glue properly.
The Xerris, on their part, re-stated their argument that the company should be held liable for the damages, for providing wrong advice and for supplying the wrong glue.
On April 19, 2012, the Court of Appeal gave judgement by varying the decision of the court of first instance.
It held the company to be in part to blame (on third).
It apportioned liability between Mr Portelli (two thirds) and the company (on third).
The following reasons were given for the court’s decision.
Technical report: It agreed with the conclusion of the technical expert.
Duties of the worker in a contract of works: The work should be fit for the use intended and, if the work was poor, it was no excuse for a worker to plead that he followed directions of another person, (Kollczz Vol. XL PI p.485).
A worker was obliged to refuse to do the work if he knew it would not be satisfactory and up to the standards expected.
He was also responsible for damages, resulting from poor workmanship, even if he was supervised by an architect (Kollezz Vol. XXXVII PIII p.883).
Defects: It was clear that Mr Portelli made no provision for expansion joints, to allow space for expansion without any damage, and was also responsible for an incorrect mixture of the glue.
The court, however, felt that the company should be liable for providing the incorrect glue and, in this respect, it was partly to blame for the damages.
Apportionment of liability: Both the company and the tile layer were held jointly responsible for the damages, in varying proportions: one third the company and two thirds Mr Portelli. It accordingly condemned the company to pay €475 and Mr Portelli €951.
The court ordered that the Xerris should pay €791, even if the work was done properly. Otherwise they would not be paying anything for the laying of the new tiles.
Dr Grech Orr is a partner at Ganado & Associates.