A BRIEF OVERVIEW OF THE LEGAL SYSTEM IN SRI LANKA IN RESPECT OF CLAIMS FOR NEGLIGENCE, BODILY INJURY AND PROPERTY DAMAGE WITH REFERENCE TO INSURANCE

A BRIEF OVERVIEW OF THE LEGAL SYSTEM IN SRI LANKA IN RESPECT OF CLAIMS FOR NEGLIGENCE, BODILY INJURY AND PROPERTY DAMAGE WITH REFERENCE TO INSURANCE.
The Private Law in Sri Lanka
The Law
The basic law applicable in the various branches of Private Law of Sri Lanka is the Roman-Dutch law. This system of law was first introduced in the Island by Dutch colonial rulers, and constitutes today, the residuary of common law of this country. It is modified in certain areas by statute law.
The sources of Roman-Dutch law are the textbooks of Roman –Dutch legal writes. The system of law itself has its origins in Roman law, and Dutch or Germanic customs. Claims for negligence, bodily injury and property damage, constitute civil wrongs and are dealt within Roman Dutch law by the law of Delict. The corresponding area under English law is that of torts.
The Law relating to civil wrongs in Sri Lanka, therefore, is administered both through the Roman-Dutch law of Delict, which is in instances displaced by statute law; and by case law where precedents set in earlier decisions are of importance. South African case law is of persuasive authority as that jurisdiction too, applies the Roman –Dutch law in respect of civil wrongs.
The extent to which English decisions may be of persuasive authority is debatable. As it is a former British colony, the susceptibility to citing English decisions with the general fabric of Sri Lankan law is undeniable . The administration of justice by English and English trained judges for well over hundred years paved the way for the insidious infiltration of English principles. The general tendency in modern Sri Lanka law, however, has been to reaffirm and apply the basic principles of Roman-Dutch law. (Daniel Silva Vs Johanis Appuhamy 67 NLR 457)
The acute paucity of local cases on delictual liability, however, has not only hampered the development of this branch of law in Sri Lanka, but has also made it difficult to set out with any degree of certainty, the probable lines of thinking and attitudes that may be adopted by the Sri Lankan Courts.
The Courts
The Courts of original Civil Jurisdiction are the District Courts ,from whose decisions, appeals may be had to the Civil Appellate Courts and the then to the Supreme Court. The later is the final court of appeal in Sir Lanka. Sri Lanka recognizes the concept of extinctive prescription with regard to the institution of legal action .
CLAIMS FOR NEGLIGENCE,BODILY INJURY AND PROPERTY DAMAGE
1       General Approach –Requisites of Liability,
Liability in respect of these claims is founded on the two major actions of delictual liability in Roman-Dutch law.
  • The aquilian action
  • Actio injuriarum
This form the two foundation stones of liability in the modern law of delict. The aquilian action provides a general remedy for wrongs of substance, while the actio injuriarum affords a general remedy for wrongs to interests of personality
To succeed in a claim brought under the aquilian action, the plaintiff must show that he has suffered loss caused by the defendant’s wrongful and culpable conduct. The elements of liability therefore are
           a)    a wrongful act or omission by the defendant.
           b)     fault, which may consist in either intention or negligence, on the part of the defendant;
            c)     causation, which must not be too remote;
             d)    pecuniary loss resulting to the plaintiff
a)         A wrongful act or omission by the defendant:
Every person had a right that other shall take due care not to cause physical injury to his person or property. This involves a duty on the part of the other to observe care as well.
Consequently, all harm to person or property caused by a positive act is prima facie wrongful. (Cape Town Municipality Vs Paine 1923 AD 207)
Where the act does not involve physical injury to person or property, no general rule can be laid down. In deciding the question of liability, the courts will balance the interest of the plaintiff against the social consequences of the imposing liability . ( Chisell Vs Chapman 56 NLR 121)
An omission my give rise to liability only where by some prior act a person has created a potentially dangerous state of things which would otherwise not have existed. The person creating the potential danger has a duty to take due precautions to prevent it becoming an actual danger and the mere failure to take such precautions will entail liability to any person to whom the duty  was owned and who is injured thereby . (Administrator Cape vs Preston 1961 (3) SALR 562)
b)         Fault
The Plaintiff must prove that the defendant was guilty of either dolus (Wrongful intent) or culpa (negligence). Where the claim is founded on physical injury to person and property, the liability for culpa is co extensive with liability for dolus. But where it is not so founded , the plaintiff may be called upon to prove that the defendant was guilty of dolus. ( Ramandan Chetty 32 NLR 193) .
Wrongful intent may be established by showing that the consequences of the act were foreseen and desired, and that the defendant was aware of the wrongful character
Negligence is the failure in given circumstances to exercise that degree of care which the circumstances demand. It will not be a ground of civil liability if there was no legal duty to use care. The duty is owed to those to whom injury may reasonable and probably be anticipate if the duty is not observed. The test generally adopted is the foresight of a reasonable man. The kind of damage that is caused should also be foreseeable. NO liability for injuries to the person will attach, if what could have been foreseen was injury to property only.
The standard of care to be adopted is also that of the reasonably prudent man situated in the same circumstances as the defendant. In determining whether the defendant has complied with the standard of care expected of him, the degree of risk run as well as the seriousness of the injury risked are material.
The plaintiff must prove that the harm complained of is attributable to the defendant Where direct evidence of negligence is not available, it may be established by inference from facts. In some cases the occurrence speaks for itself ( res ipsa loquitur ) . ( Van Wyk Vs Lewis 1924 AD 444)
There are instances of no – fault liability, such as liability for damage caused by animals, and the vicarious responsibility of a master for the delicts of his servant. (Olney vs Frase Nursing Home 69 NLR 233)
c)          Causation
There must be a causal relationship between the act and the loss
d)         Patrimonial Loss
Under the aquilian action, what is recoverable is loos in respect of property, business, or prospective gains capable of pecuniary assessment. The famous case Prof: Priyani Soysa Vs Rienzie Arseculratne Can be considered as the most complied case on ” Patrimonial loss” ( 2001 (2) SLR 293). However the law did not stop there, It kept on encompassing several prudent steps upon Priyani Soysa’s Case.
Going further , In Jayakody Vs Jayasuriya (2005) 1 SLR 216, Justice Nimal Disanayake held that an action for personal injuries , the plaintiff is entitled to claim compensation for pain and sufferings too.
In another development, Mahipla and another vs Martin Singho 2006 ( 2) SLR 272 , Justice Wimalachandra held that, in action for personal injuries , the plaintiff is entitled to claim compensation for
  • actual expenditure and pecuniary loss
  • disfigurement, pain and suffering and loss of health and amenities of life
  • further expenses and loss of earning capacity
In an unreported judgment Case No CA 977 / 98 (f) dated 27-05-2016, Justice LTB Dehideniya stated that ” It is common sense that a patient has to suffer pain until the wounds are healed. Apart from the injuries that he sustained due to the accident, he had to suffer the pain of the surgical wounds too”
2        GENERAL APPROACH – DEFENSE
The general defenses that may be adopted by the defendant to a delictual action are:
  • Contributory negligence on the part of the plaintiff – This however cannot be set up as a defense where the damage was intentionally caused.
  • Negligence of the third party – This would not provide a defense where the decisive cause of the action is the combined negligence of the defendant and a third person
  • Volonti non-fit injuria – Where the plaintiff has consented to suffer something which would otherwise be an intentional wrong
  • Necessity – The act done must be an act of necessity to avoid a greater harm
  • Statutory authority – The act authorized by statute should have been carried out without negligence
3        GENERAL APPROACH – REMIDIES
          The remedy for delict is damages. Damages recoverable are either
  • real or substantial or
  • nominal
The damages are real when they are awarded for actual loss proved or presumed to have been suffered Nominal damages are awarded by way of recognition of suffered. Nominal damages are awarded by way of recognition of some legal right vested in the plaintiff and violated by the defendant .
In the Aquilian action, the damages awarded are measured by the material too, actual or prospective sustained by the plaintiff. The Plaintiff is also entitled to compensation for any consequential loss which he has suffered including gains which he has been prevented from making in consequence for the act complained of.
          i) Damage to corporeal property
Where damages have been caused to corporeal property whether immovable or movable, the measure of damages is the resulting diminution in the value of the property and not the cost of restoring it to the condition in which it was before the act complained of was committed. The cost of restoring the thing to its original condition may be taken as the measure, if they do not exceed the diminutions in the value of the thing . The damages for which the owner of a vehicle which has been damaged by the negligence of another are the sum of money which would be reasonably and necessarily e required to repay the damage. ( Ward Vs Steenberg 1951 (1) SALR 395) . Compensation for the loss of the use of the thing , and for loss of profit from the use of the thing may also be awarded
          ii) Personal injury
Compensation is payable for
  • actual expenditure and pecuniary loos –medical, hospital and any other expenses incurred in connection with the injuries,
  • disfigurement, pain and suffering, and loss of general health and the amenities of life – also future pain and inconvenience and loos of earning capacity –future expenses in connection with the injuries and where the injury is permeant, loss of further income and of position and prospects
4. SPECIFIC WRONG – NEGLIGENCE
Negligent statement: The tendency of the courts is to limit than extend the scope of the liability. ( Herschel vs Mrupe 1954 (3) SALR 464.)
Among others, the courts take into consideration factors such as whether the defendant was under a legal duty not to make misstatements to the plaintiff; what was foreseeable by the reasonable man in his position; and, whether the plaintiff acted in a certain way because he believed that the statement was true. (Administrator Natal Vs Trust Bank Africa 1979 (3) SALR 824
5. SPECIFIC WRONGS – BODILY INJURY
    a)  Death:
As the Aquilian Action has extended in modern law to afford a general remedy for every kind of loss sustained by a person in consequence of the wrongful acts of another, all claims in respect of actual pecuniary loss pass to or against the executor . The executor can sue for the deceased’s medical, hospital and funeral expenses but has no cause of action in respect of the death itself since the death itself cannot be regarded as having caused damage to the estate.
The dependents of the deceased are entitled to claim compensation for the pecuniary loss they suffered in consequences of the death
     b)  Assault:
Physical contact with the body is not necessary to constitute an assault. It is sufficient that the acts or gestures of the defendant should put the plaintiff in reasonable fear of immediate violence. Assault, however may be justified by various grounds
      c)  Bodily harm:
Unlawful bodily harm may be inflicted when it is inflicted negligently and not willfully; and when although willful it is inflicted otherwise than by the application of physical force, such as by the administering a deleterious drug. It is not necessary to prove physical impact. A plaintiff who has suffered in health as a result of a nerves shock caused by the defendant’s wrongful act is entitled to damages. Persons other than the person injured may sue. If they can show that they have suffered patrimonial loss through being deprived of support, whether in money or domestic services, rendered by the injured person under legal duty to do so
        d)  False imprisonment:
The essence of the wrong is the depriving of another of his personal liability. Actual imprisonment or employment of actual force is not required. The act complained of must be the act of the defendant of his agent.
         e)  Motor Vehicles:
Liability for personal injuries or death caused by motor vehicles remains regulated by the combination of Roman – Dutch common law and the insurance laws. Fault and other requirement of delictual liability are not jettisoned, but the authorized insurer of the offending vehicle steps into the shoes of the culpable driver as the defendant.
6.   SPECIFIC WRONGS – PROPERTY DAMAGE
Trespass, nuisance, and disturbance of servitudes are the most important classes if injuries to property. Others are, unlawful detention of property, the willful or negligent causing of damage to another’s land by a person lawfully on it
7.   INSURANCE
As already indicated, the common law (as understood in the sense of the general law) of Sri Lanka is the Roman – Dutch law. English law, however, has been introduced by statute and by English Judges who were not familiar with the Roman – Dutch law.  The Civil Law Ordinance NO 05 of 1852 made English Law applicable by statue in respect of marine insurance.
It follows, therefore, that we have a situation where
   (i)  English law is applicable to marine insurance matters and
    (ii) Roman – Dutch law is applicable to all other insurances.
From a practical point of view, the Roman-Dutch law is not at variance with the English law on insurance matters, as the law merchant in the common law system, is recognized universally. One can safely conclude, therefore, that even in respect of general insurance matters, English legal principles (other than statue law) will apply.
It must be noted that in Sri Lanka, People do not always insure risks that would be commonly insured in a more developed country. Accordingly, it will be seen that in a number of instances, the need to invoke liability insurance does not arise since no insurance has been taken. It will be seen therefore, that as a policy, the courts are somewhat stringent in adopting a liberal attitude to the award of damages. Proof of negligence, therefore, has to be clearly established.
BINARA A. GUNASEKERA
(ATTORNEY-AT-LAW)

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