The First Hall of the Civil Court, presided over by Mr Justice Joseph R. Micallef, on December 12, 2012, in the case ‘Tessie, wife of Anthony Cardona and others vs CV Builders Ltd and Enemalta Corporation’, held, among other things that, in the context of contributory negligence, if a worker was partly to blame, it was within the discretion of the court to determine the proportion of his liability, in view of the circumstances of the case. It was also possible for the court to hold an employee to be exclusively responsible and to exempt an employer completely.
Tessie Cardona, Giovanna Xuereb, Helen Gatt, Mary Debono, Lily Attard , Salvatore Mamo, Joseph Mamo and Carmelo Mamo – as the heirs of their brother Spiridone Mamo – filed legal proceedings against CV Builders Ltd and Enemalta Corporation, holding them responsible for the death of their brother. The heirs requested the court to liquidate and to condemn the defendant companies to pay them compensation.
Spiridione Mamo should have been aware that the power cable which he grabbed was live; and that the ground on which he stood was wet
They blamed CV Builders and Enemalta Corporation for the incident on September 29, 1995, resulting in the tragic death of their brother Spiridione at his place of work, while carrying out his duties at a construction site in West Street, Valletta, at approximately 12.30pm.
In reply, both CV Builders and Enemalta Corporation disputed liability.
CV Builders in defence submitted that:
• they provided their workers with protective clothing;
• it was stated that Mamo was himself to blame for the incident; and
• they had never informed their workers that Enemalta had suspended the power supply on the site under construction.
The court considered that the project involved demolishing an old building and replacing it by a new development. CV Builders had been sub-contracted to complete the works and had employed Mamo as a skilled labourer and foreman only a few weeks before the incident.
On the day of the incident, works were in progress to construct a new ceiling. Iron netting had just been laid as the base of the new ceiling.
At the time, Mamo was using a chaser to cut a cavity into a wall for a conduit pipe. As soon as he touched a live, power cable with his right hand, he was fatally electrocuted.
Against instructions of his employer, he wore no safety boots and protective gloves to prevent direct contact with the cable. To make matters worse, the ground on which he stood was wet with rainwater.
The autopsy revealed that the direct and immediate cause of death was electric shock.
Mamo was divorced pursuant to a decree of the English courts of July 1990. He died intestate, without children.
The court considered that no request had been made for Enemalta to cut the power supply and/or repair any damaged wires. It did not find Enemalta to be negligent and liable for the incident.
The court said that, as a general rule, a person was responsible for his own acts or failures. The court made the following observations:
• An employer was not liable if it was shown that the employee failed to follow instructions or take precautions or if the worker acted negligently and brought about the incident.
• An employer was obliged to provide a safe working environment for his employees.
• An employer had to provide safety measures and procedures. He had to carry out supervision for the protection of the safety and health of its workers. In this respect, CV Builders, as sub contractors, were responsible for the safety and security of their workers.
• Moreover, the fact that a certain system was adopted for a long period of time without incident was not proof that such system was risk free or that an employer was exonerated from his duties imposed by law. An employer was not, however, automatically liable for every occupational injury.
• An employee, on the other hand, was obliged not to expose himself to unnecessary risk and to act carefully. An employee could be held liable if he was negligent or if he failed to follow directives from his employer.
The court had to consider the safety ambience of the workplace; and the manner whereby the works were affected. CV Builders had not asked Mamo to carry out a task which was beyond his competence. As he was engaged to supervise works, CV Builder as his employer was not bound to appoint an additional supervisor to check on him.
In the context of contributory negligence, if a worker was partly to blame, it was within the discretion of the court to determine the proportion of his liability, in view of the circumstances of the case. It was also possible for the court to hold an employee to be exclusively responsible and to exempt an employer completely.
The court noted that an employee could be held liable:
1. If he did not follow specific instructions of his principal, regarding the risks;
2. If he failed to do something, contrary to expectations;
3. If he failed to use common sense and the worker exposed himself to unnecessary danger.
The court had to consider whether a worker assumed to carry out a dangerous manoeuvre on his own initiative as distinct from when a worker was simply obeying orders.
In this case, the court said that CV Builders had supplied protective clothing to its employees. Mamo should have been aware that the power cable which he grabbed was live; and that the ground on which he stood was wet. He failed to use the protective garments provided by his employer, pointed out the court.
Had he worn the safety boots and protective gloves, he would have avoided injury.
It did not appear that Mamo was ordered to touch the cable. He did so freely and his employer was not to blame for the incident.
For these reasons, the court held Mamo to be fully responsible for bringing about his own death.
It gave judgment by dismissing the claim for damages against both CV Builders and Enemalta Corporation.
Dr Grech Orr is a partner at Ganado & Associates.