The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Noel Cuschieri, on May 30, 2014, in the case ‘Marouska Cesare v Shaun Bonello’, held, among other things, that on the basis of three independent witnesses, there was sufficient evidence on a basis of a balance of probability to attribute responsibility of a traffic incident exclusively to Shaun Bonello, despite some lurking doubts. This court could not understand how the First Hall of the Civil Court could discard such clear testimony.

The facts in this case were as follows:

Marouska Cesare was permanently injured in a traffic incident on August 7, 2004, on the Salina Coast Road, Baħar iċ-Ċagħaq, as a pillion rider on a motorcycle driven by Charlot Spiteri towards St Paul’s Bay. Spiteri was fatally injured. Cesare said that Bonello, driving his Renault car in the opposite direction, crossed the centre strip and hit their motorcycle and a Subaru car.

She claimed that the incident was caused solely as a result of negligence and lack of observance of traffic regulations by Bonello and proceeded to file legal proceedings against Bonello, requesting the court:

• To declare that the traffic incident of August 7, 2004, in Baħar iċ-Ċagħaq was caused by Bonello; and

• To liquidate the damages suffered by Cesare and to order Bonello to pay the sum so liquidated.

Bonello, in reply, disputed liability for the traffic incident and for the alleged damages. He gave a different version of events. He alleged that Spiteri invaded his lane while attempting to overtake a Subaru car, in order to catch up with their fellow companions. Bonello held Spiteri to be responsible for the incident.

On October 19, 2010, the First Hall of the Civil Court rejected Cesare’s requests for damages.

Before the civil and criminal proceedings, witnesses testified that Bonello in his Renault car surpassed the centre strip and collided with a Subaru and motorcycle on the other side of the road next to the Coastline Hotel. Witnesses confirmed that Spiteri was driving behind the Subaru car. The Subaru car was hit at the side of its mudguard.

Despite the evidence and witnesses produced by Cesare, the First Hall of the Civil Court doubted their veracity. It noted that the driver of the Subaru was heard to have said that he was first hit by the motorcycle and, in the second instance, it considered that there was no explanation how some pieces of the motorcycle’s mirror ended up on the right side of the road. This indicated, pointed out the first court, that the collision occurred on Bonello’s lane.

In view of these doubts, the first court was not satisfied on a basis of probability that Bonello, in his Renault, crashed head-on in the Subaru car and motorcycle, which were travelling in the opposite direction.

It noted that deceased Spiteri had a high level of alcohol in his blood in excess of what was legally permissible. This could have affected his decision whether it was safe to overtake in such traffic conditions.

In the light of these reasons, it felt that it was more probable that Spiteri attempted to overtake the Subaru, crossed the centre strip and crashed into the Renault, head-on.

The first court decided that Bonello was not responsible for the collision.

Aggrieved by the decision of the first court, Cesare entered an appeal, calling for its revocation. She asked the court to accept her claims and to liquidate the damages. She maintained that the First Hall of the Civil Court made an incorrect assessment of the facts.

The evidence before the criminal proceedings was separate and independent from that in the civil proceedings. A decision in the civil case should not be based on proof presented in the criminal proceedings

The Court of Appeal noted the testimony of Peter Paul Degiorgio, the driver of the Subaru car. Degiorgio confirmed that Bonello, driving at excessive speed on the opposite lane, in the direction of Baħar iċ-Ċagħaq, crossed the centre strip and came straight at him.

He said that he swerved to the left to avoid the collision. Bonello’s car hit his mudguard and the motorcycle which was behind him.

This version of events was confirmed by other witnesses. This court could not understand how the First Hall of the Civil Court could discard such clear testimony, simply on the basis that one expert had heard Degiorgio give a different version at the time of the incident (detto del detto).

However, both in civil and criminal proceedings Degiorgio confirmed that Spiteri was riding behind him on his motorcycle.

The evidence before the criminal proceedings was separate and independent from that in the civil proceedings. A decision in the civil case should not be based on proof presented in the criminal proceedings.

It resulted, however, that in the criminal proceedings, Degiorgio stated that Bonello crashed into him.

The fact that there were pieces of the motorcycle’s mirror on the other lane was not enough justification to ignore the testimony of three witnesses, who were independent from the parties.

For these reasons, on May 30, 2014, the Court of Appeal gave judgment by accepting the appeal and by revoking the decision of the First Hall of the Civil Court.

It declared that Bonello was responsible for the traffic incident and for the damages suffered by Cesare. It ordered that the case be referred to the First Hall of the Civil Court for continuation.

Dr Karl Grech Orr is a partner at Ganado Advocates.

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