Judgements

Decided on 11/09/2020.

This case raised an important legal question where the liability of the motor insurer is excluded in the insurance policy where the driver has driven after consumption of alcohol, does that exclusion of liability applies to Third Parties as well.

Amarasekera J (with Malalgoda P.C. J, and Thurairaja P.C. J agreeing), after an in depth analysis of the relevant sections of the Motor Traffic Act, Hansard debates, and case law, held:

“One may argue terms excluding drunken drivers is for the interest of the public and therefore it is not in conflict with the intention of the legislature shown by bringing in insurance to cover third-party risks. A cursory glance may give such an impression but when one looks deep into the issue it is not so. In this aspect one has to examine what was intended by the legislature to be remedied by introducing third-party insurance. It is clear due to what is mentioned before that the insurer has to satisfy a decree against the persons covered by the policy when it is given in favour of a third party unless the insurer is entitled to get a declaration of non-liability as per the provisions of the Motor Traffic Act. This liability to satisfy the decree is there irrespective of the financial capability or incapability of the people whose liability is insured by the policy. Thus, what was intended was to cover the liability of the persons who are insured or covered by the policy. As indicated above under our law liability arises with the proof of fault of the wrong doer. Hence, what was intended to remedy by the third-party insurance cover is the harm caused by the fault. Proof of Drunkenness or acts of negligence and recklessness are decisive in proof of fault of the wrong doer. If in the guise of naming drivers, it is allowed to claim non-liability on such wrongs, the object of bringing in mandatory insurance to cover third-party risks would fail, since it makes the wrong doers, whose fault was to be remedied by third -party cover, excluded drivers. Thus, such naming is contrary to the public interest, which the legislature intended to safeguard by providing mandatory third-party insurance. Thus, I am not inclined to think that the legislature intended to allow naming of drivers under Section 102(4)(c)(i) in a manner to defeat the public interest as found in the said impugned item 5 of the policy; In other words, such naming allows to remove the fault which was to be remedied, from the remedy provided by introducing mandatory third-party cover making the remedy redundant.”

Read the Full Judgement Here: Kushan Ediriweera v Sadhasivam Sivagankan and Others (Unreported) SC/Apl/65/2016

Decided on: 06/03/2019

This case raised an important legal question pertaining to the termination of probationary employees.

The Employer-Appellant admitted that the services of the Applicant-Respondent were terminated whilst he was on probation. The learned President of the Labour Tribunal made an order that the Employer-Appellant should begin the case as the Employer-Appellant has admitted the termination of the Applicant-Respondent. The Employer-Appellant contended that the said order of the learned President of the Labour Tribunal was wrong since the termination of services took place whilst the Applicant-Respondent was on probation.

In holding with the Employer-Appellant and allowing the Appeal, Sisira J de Abrew J (with Prasanna Jayawardena PC J, and Murdu Fernando PC J agreeing) held, inter alia, that:

“I hold that when an employer of an employee admitted that the services of an employee were terminated whilst he was on probation, it is the employee who should commence the case in the Labour Tribunal and not the employer. For the above reasons, I hold that the learned President of the Labour Tribunal was wrong when he ordered the Employer-Appellant to commence the case in Labour Tribunal. I further hold that in the present case, the burden is on the ApplicantRespondent to establish unjustifiable termination and that the ApplicantRespondent must establish a prima facie case of mala fides before the EmployerAppellant was called upon to adduce evidence with regard to the termination. In the present case the Employer-Appellant was first asked to adduce his reasons for termination.”

Read the Full Judgement Here: Seevali Jeyshta Bandara Arrawwawala v Agarapathana Plantations Limited and Others (Unreported) SC/Apl/05/2014

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