Legal aid commission

Before we address the definition of Negligence, it is necessary to understand the concept of ‘tort’, which is not only connected with legal practice and regulations, but also interconnected in common peoples’ lives.

'Tort' could be defined as a duty, which is/ imposed on a person by law to act with care towards others. In other words, if there exists a duty, a failure to act carefully and another suffers loss, then the tort of negligence is committed. Therefore, negligence has become the most important area of tort law.

The concept of negligence can be defined in law by first looking in to the concept of ‘reasonable care’.

Legal Aid Commission Chairman S S Wijeratne inaugurating the apprentice programme organized by Legal Aid Commission held recently. Legal Aid Commission members Rohan Sahabandu PC, Dr WD Rodrigo PC and the Law College Principal were also present on the occasion. Picture by W D Chandradasa

It is said in English law that reasonable care is, when ‘a person who is so closely and directly affected by my act, that I reasonably ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ In other words in the eyes of the law, if you commit harm to another person and the harm you did could have been foreseen by you prior to your act, then you would be considered as a person acting negligently or ‘without reasonable care’

However, all careless acts do not amount to Negligence. Foresight of the harm becomes an important consideration when determining whether a person has acted negligently or not.

In order to prove negligence in Court the following facts should be established by the affected party or the party bringing the case to Court (Plaintiff)

The person who committed the harm (defendant) owed the plaintiff a duty of care
The defendant fell below the required standard of care (breach of duty), and

The plaintiff suffered damage that was caused by the defendant’s breach of duty, which is not too remote.

Duty of care

A person would have the responsibility to care or ‘duty of care’ we can reasonably expect that person to foresee that his careless action would harm the other. This would also include how close or far the affected party was from being harmed (Proximity) and how vulnerable the other party was. For example Courts would look in to whether the defendant was in a controlling position, whether the plaintiff was reliant on the defendant and whether the defendant was in a position to be protected from the plaintiff.

Breach of duty

The breach of duty of care is the second step in the negligence action. Court will look in to what kind of responsibility the defendant owed to the plaintiff (standard of care). This can be established by looking in to if the defendant has acted as a reasonable person would. An average reasonable person is someone who would assess the risks and take precautions in the normal turn of events.

The plaintiff should have suffered loss or damage out of the negligent act of the defendant in order to bring a case to court. The Court will look in to whether the injury or loss was a direct result of the act committed. Hence the injured party must prove that his injury or loss was infact due to the defendant’s negligent act.

Claim of damages

Finally the judge would pay compensation known as ‘damages’ to the injured party if the case is proved in favor of him. Damages can be paid for the loss which has already been suffered and for the loss which is to be continuously suffered due to the harm committed. For example if a person loses his arm due to a negligent act of another damager would be paid for not only his hospital expenses but also for the loss of income he would suffer in the future due to his disability.

Contributory negligence

In ordering compensation the Court might look in to the question is to whether the Plaintiff has contributed in any way to the damage suffered. For example a vehicle meets with an accident due to the driver’s negligence, the passenger suffers injury. However if he was not wearing a seat belt and hence he suffers more injuries than he otherwise would have, Courts when granting compensation will also look in to this factor. However this part of the case is up to the defendant to prove in court.

Charges for Powers of Attorneys

Question: Please let me know the new charges which is applicable to powers of attorneys ?

For the registration of any power of attorney …...................Rs.1,500
For the registration of any notification of cancellation or

revocation of any registered power of attorney.......................Rs.1,500 For every application to inspect the records …..................... Rs. 500

For every application for a certified copy of a registered power of attorney ….Rs.500
For every certified copy issued under Section 7, per Folio....................................Rs.500

Vicarious liability

Question: I am the Manager of a company. My personal driver provided by the company met with an accident while performing his official duties . Is the company liable to pay damages for the victims?

Answer : Yes , you can be held liable under vicarious liability. The driver of the vehicle who is liable for the accident may always not be the registered owner. He may be an employee within the course of employment. The employer’s or master’s liability for the negligent acts of his servants is an English Law principle.However, the negligent act of the employee should be within the course of employment.

Vacancies for post of Legal Officer

The Legal Aid Commission is an independent statutory organization set up to provide free legal aid to the underprivileged section of the society. Applications from Attorneys-at-Law are invited for Legal Officers' at the Legal Aid Centres in Nikaweratiya, Minuwangoda and Baddegama. The selected candidate will undertake court representation and counseling on behalf of the Legal Aid Commission.

Proficiency in Tamil/English language is an additional qualification for this post. Monthly salary as per the LAC Salary scheme.

Candidates are advised to submit their complete CV including contact details and references to the following mailing address. The Chairman, Legal Aid Commission,129, Hultsdorp Street, Colombo – 12. Closing date of the application is March 22, 2013.

The particular act is within the course of employment or not is a question of fact.

When the evidence is led, identification of the registered owner and the driver is an essential requirement. Sometimes it is to be noted that the vehicles are hired to various companies and people by the registered owners. In such a situation, the course of employment of the driver is very important.

There are instances where some acts are forbidden by employer, however, if the employee has independent authority to take decisions in the course of employment, The master is liable, even if the particular act is expressly forbidden.

Bail

Answer: The bail is the process by which a person is released from the custody on the undertaking given by a surety or on his or her to appear in future stage of the proceeding of the court. Bail could be granted to a suspect during the stage of investigation or to an accused whose case is pending before court, or even to a person who has been convicted, on his preferring an appeal against his conviction. When we talk about bail we can see different kinds of bail. They are surety bail, cash bail, certified bail and personnel bail and anticipatory bail. All these terms describes the nature of the bail bond upon which a person is released from custody. surety bail is where a person is released on a surety entering upon a bond undertaking to secure the presence of the person released when required.

Cash bail is that they have to make a cash deposit along with the undertaking to secure the presence of the person released on bail when required. Under this bail no need to bail bond sign by the sureties.

Certified bail is where a certificate such as a deed would be deposited in court to the value of the bail bond.

Personnel bail is where the person released sign a bond to pay the amount indicated in the bond if he fails to appear in court as required. One has to remember that when a person is released on bail it is customary to make such release subject to certain conditions commonly referred to as bail condition. Further we have to remember that there can be order granting bail on a combination of any two or more these bonds.

Anticipatory Bail is one where a person obtain an order from Court prior to his arrest.

Insurance Ombudsman

Answer: The Insurance Ombudsman has the power to inquire into and settle any complaints and disputes between individual customers and the insurance institutions covered by the Ombudsman Scheme.

(i) Claims including maturities of long-term insurance policies(ii) Premium payable and Premium refunds(iii) Other benefits payable in terms of the insurance policy

Any other relevant matters that may be specified or referred to the Ombudsman by the Insurance Board of Sri Lanka (IBSL) or the Consumer Affairs Authority of Sri Lanka (CAASL).

Complaints by registered/licensed Insurance Brokers against Insurance Companies and vice versa. Also complaints relating to Insurance Agents working for Insurance Institutions. These powers are intended for the good of the insurance industry.

Complaints relating to the violation of directives of the Insurance Board of Sri Lanka in relation to insurance services. Complaints directed to the Ombudsman for investigation, settlement and/or report by the Consumer Affairs Authority under the Consumer Affairs Authority Act No. 9 of 2003.

Brand logo

Question: Please let me know how do I register a brand logo in Sri Lanka? Could you kindly explain the procedure in detail.

Answer: According to the Sri Lankan Law - A Trade Mark is a word, phrase, symbol or design, or combination thereof, which identifies and distinguishes the source of the goods or services of one party from those of others.

A Service Mark is closely related, to a trade Mark and serves to identify and distinguish the sources of services rather than products.

Certification Marks are used to certify that goods or services of others have certain characteristics.

Collective Marks are used to indicate membership in an organization or to indicate that goods or services are produced or authorized by an organization

Registration under the Sri Lankan Intellectual Property Act No. 36 of 2003 grants Statutory Protection to Trade and Service Marks

It must be emphasized that Prior User of the Mark in the Home Country or in Sri Lanka is not a pre-requisite for Registration

Intellectual Property Associates will assist you to secure Trade and Service Mark rights in Sri Lanka.

With regard to registration of a brand logo/trade mark, first of all, you have to visit the National Intellectual Property Office in Sri Lanka and obtain the Classification copy. This copy will contain all the classification (Class I & Class II).

After selecting the class of your trade mark, you have to go through the public search at the Intellectual Property Office. After finishing the public search, you can collect the application form.

All information is given in that form. If it is a Company or Partnership trade mark you have to pay Rs.3, 450 as registration fee. If it is an individual trade mark you have to pay Rs.1,500. The Office is open from 9 am to 3 pm. Search fee per day is Rs.150.

An Application for registration of a Trade or Service Mark must be made to the Director-General of Intellectual Property in Colombo, in the Prescribed Form and must contain -

2. The name, address and description of the Applicant, and if he is resident outside Sri Lanka a postal address for service in Sri Lanka

4. The goods or services for which registration is sought under the International Classification.

6. Where the Application is filed by an Agent it should be accompanied by a Power of Attorney. This document need not be Notarialized or Legalized.

All Applications are searched and examined in the order of filing by the National Intellectual Property Office (NIPO) for registrability. If acceptable the Application is published in the Government Gazette and left open for a period of three months for public scrutiny and third party Opposition if any. If opposed a hearing will be held at NIPO after the filing of Written Submissions and any available evidence and the fate of the Application would be then determined.

If there is no such Opposition filed NIPO will proceed to register the Mark absolutely or subject to any conditions as the Hearings Officer shall deem fit.

Contact Information: National Intellectual Property Office of Sri Lanka Samagam Medura, 3rd Floor, 400, D.R. Wijewardene Mawatha,Colombo 10. Telephone:+94 11 268 9368

Marriage Certificate

Question: I wish to get a copy of my marriage certificate to get my W&OP since the death of my husband. How do I get it?

Answer: Contact the Additional District Registrar at the Divisional Secretariat Office where the marriage has been occured.

Fee for certified copy of a marriage certificate is,(i) If the registered number and the date of registration is known – 100 SL rupees per each copy(ii) If the registered number is not known and the date of registration is known, search of registry for 3 month entry – 200.00 SL rupees per each copy(iii) If you know only the year of marriage, search of registers only for a period not exceeding 2 years entry - 200 SL rupees per each copy

Consumer problem

Question: What is the mechanism adopted by the Consumer Affairs Authority in granting redress to aggrived Consumers?

Answer: A written complaint along with supportive documents which relates to the sale of goods or to the provision of service shall be sent to the authority within 3 months. An inquiry is held in to the complaint.

After an inquiry the Authority shall order the trader or the manufacturer to pay compensation to the aggrieved party or to replace such goods or to refund the amount paid for such goods or the provision of services.

Vocational Training Centres

Question: Please let me know the contact details of the vocational traning centres which are registered by the social service department in Sri Lanka.

1. Seeduwa Vocational Training Centre
Liyanagemulla, Seeduwa.
Tel. No. - 011-225305

2. Amunukumbura Vocational Training Centre
Amunukumbura, Wathurugama.
Tel. No. – 033-227931

3. Rehabilitation Hospital Ragama Vocational Training Section,
Ragama.
Tel. No. – 011-2958212

4. Ketawela-leula Vocational Training Centre Ketawela-leula.
Tel. No. – 082-2225403

5. Wattegama Vocational Training Centre Wavinna, Wattegama.
Tel. No. – 084-2276209

6. Thelambuyaya Vocational Training Centre Agunukolapalassa.
Tel. No. 047-2228333

7. Child Guidance Centre Welapara, Nawinna, Maharagama.
Tel. No. – 011-2746801

9. Day Centre for detoxified drug addicts
‘Navodaya’, 136,
Vauxhall St., Colombo 2.

10. Residential Centre for drug addicts Jayaviru Samadhi Nivahana,
North Ambalamwatte Road,
Puwakpitiya.
Run by NGOs

11. Sarvodaya Suwasetha Vocational Training Centre
55, de Soyza Rd., Rawathawatta,
Moratuwa.
Tel. No. – 011-2647158

12. St. Thomas Dress Making Centre for Deaf
220, Idama, Galle Road, Moratuwa.
Tel. No. – 011-2644304

13. Rehab Lanka Keththarama Temple Rd.,
Maligawatta, Colombo 10.
Tel. No. – 011-2689287

14. Islamic Centre for Rehabilitation of Disabled
Doolmala, Thihariya.
Tel. No. – 033-287840

15. Sukitha Vocational Training Centre for Women
Padukka Rd., Horana.
Tel. No. – 034-261037

17. Saviya Sanwardana Foundation Vocational Training Centre for Physically Handicapped
Kandegodawatta,
Imaduwa.
Tel. No. – 09-2234281

18. St. Joseph Sathwa Sadhana Centre Walakumburumulla, Weralugama,
Kuliyapitiya.
Tel. No. -037-2282471

19. Vocational Training Centre for Disabled
Perera Mw., Bandarawela.
Tel. No. – 0572223705

21. Centre for Disabled Women Pahalagama Rd., Kongollawa, Thalawa.
Tel. No. – 025-2257586

Tort of Negligence