Citizens injured in accidents involving uninsured government-owned vehicles have no legal right to claim compensation from the State, an Ombudsman investigation has revealed.
The Ombudsman described this situation as "unjust" and "discriminatory", following his investigation into the Health Division's initial refusal to pay compensation to an elderly woman injured in an accident involving an ambulance.
Although the woman, who does not wish to be named, was eventually compensated a year after the incident occurred following the Ombudsman's investigation, the case raises alarming questions about the government's failure to insure its vehicles.
The accident, in which the woman suffered a broken wrist and broken spectacles while accompanying her husband to hospital in an ambulance, was first reported by The Sunday Times in November 2007.
The woman initially asked the Health Division for compensation of €400 to cover the costs she incurred after the accident. Although Mater Dei Hospital superintendent Frank Bartolo told The Sunday Times at the time that "customer care was handling the case to ensure the woman was compensated", Health Care Services director general John Cachia wrote to the woman last March saying that her request for compensation had been turned down.
The woman then referred the case to the Ombudsman, who considered the incident from the perspective of the government's failure to provide insurance cover for its own vehicles.
In his case notes on the subsequent investigation, the Ombudsman noted that government-owned vehicles "used and employed exclusively in the service of the government of Malta" are legally exempt from the requirement to be covered by an insurance policy in respect of third party risks. He argued that this places a "moral duty" on the government to pay compensation to third parties in any instance that would otherwise be payable by insurers.
The Ombudsman dismissed protests from the Health Division that it was difficult to determine blame for the accident and declared this irrelevant. He maintained that by choosing to not insure its vehicles, the government de facto assumed responsibility for third party risk.
The Ombudsman also found that there was sufficient evidence to show that the woman's claim was more than reasonable, and that the complaint was justified and ruled that the Health Division "acted unfairly and seriously failed its responsibilities towards (the) complainant."
Despite the Ombudsman's findings, the Health Division expressed concern about the implications of the recommendations, since it would set a precedent and introduce a new expense for the government.
In response, the Ombudsman pointed out that the government had paid for third party damage in several similar situations.
At one point, the Health Division suggested affixing notices on government ambulances, warning patients that they travel at their own risk. This was met with incredulity by the Ombudsman, not only because of doubts over the legality of such an action, but because it implied that people travelling in such ambulances would be unsafe and this was likely to upset patients. He described the Health Division's continued refusal to pay compensation as "preposterous", "astonishing" and a "blatant injustice."
Although the claim was eventually settled in November last year when the woman received a cheque for €400 from the Treasury, the Ombudsman has criticised the law which allowed the situation to arise.
He argued that the proviso exempting the government from compulsory third party insurance of its vehicles without a corresponding legal obligation to compensate third parties for damages was "unjust", in that innocent victims of accidents involving government cars could be deprived of just compensation. He also said it was "discriminatory" because a citizen involved in an accident with a government vehicle should not be treated in a different manner to a citizen who suffered an accident in which no government vehicle was involved.
The Ombudsman concluded that the principle of government responsibility in this area should be enshrined in a positive law provision. He sent his recommendations to the head of the civil service, the Attorney General and the Minister for Justice and Home Affairs. The office of the Ombudsman has since been informed that the Attorney General is considering the recommendations. His office was unable to say whether the recommendations are likely to result in a law which clearly defines government responsibility in this area.
The elderly woman involved was full of praise for the Ombudsman: "Through the Ombudsman justice was done. Even if I had not received compensation, I would be very pleased because he kept me informed about what was happening. If I had gone through the courts, it would have been after my death before I received anything," she said.