The First Hall of the Civil Court, presided over by Mr Justice Lino Farrugia Sacco, in the case “Anthony Azzopardi and Dominic Azzopardi vs Malta Transport Authority” on March 8, 2012, held among other things, that it was the duty of the transport authority to ensure that the public roads were in good condition. In this case, the transport authority was held liable for damages (€96,738), suffered as a result of the poor condition of the road, where the incident occurred.
The facts in this case were as follows:
As a result, Dominic Azzopardi was permanently disabled with multiple injuries
Anthony Azzopardi and his son Dominic, aged 24 years, suffered substantial damages in a road accident on December 18, 2007 in Mdina Road, Żebbuġ, at 6.30 a.m. Dominic Azzopardi was driving his father’s car an Opel Corsa. He drove into a big pothole and lost control. The car was reduced to a total loss.
As a result, Dominic Azzopardi was permanently disabled with multiple injuries. Anthony and Dominic Azzopardi claimed that Malta Transport (now Transport Malta) should be held exclusively liable for the damages.
It also resulted that before the incident the local council of Żebbuġ had requested the Malta Transport to repair the road.
Dominic Azzopardi suffered serious head injuries. He was admitted in the ITU and was discharged from hospital on January 8, 2008. He had neurological complications and problems with his right eye. After the incident he lost his job as a barman and only after four months did he manage to find another job as a receptionist. From his right eye, he complained of double vision, and had to wear special glasses.
Dominic Azzopardi had to give up his pastime – football, owing to injuries.
Faced with this situation, they filed an action for damages against Malta Transport asking the court:
• To declare the Authority solely responsible for the incident which occurred on December 18, 2007 in Mdina Road, Żebbuġ;
• To liquidate the damages, suffered as a result of the incident and to condemn the Authority to pay compensation.
The Opel Corsa was valued at €900 and Dominic Azzopardi incurred €1,652 in medical expenses.
In reply, the Malta Transport remained contumacious. It later put forward the argument that Dominic Azzopardi could have avoided the pothole; that he was allegedly overspeeding, otherwise he would not have lost control.
In the case, Middlesea Insurance plc vs M. Geres (App. Ing) dated 16.09.2004, the court held that excessive speed made it more difficult to take urgent safety measures, to avert a sudden peril.
Speed could be excessive even if it were under the legal limits but considered to be unreasonable in the circumstances.
In Froom vs Buther, Lord Denning remarked:
“Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself’.
‘’If the claimant has contributed to the accident he will be taken to have contributed to his injuries as well if these were more likely than not to result from the accident.
“But he may also be contributorily negligent without having caused an accident in any way by, for example, failing to wear a seat-belt and as a consequence suffering more extensive injuries than he otherwise would have done.’’
On March 8, 2012, the First Hall of the Civil Court held Malta Transport exclusively to blame for the incident. It condemned it to pay full damages amounting to €95,838 to Dominic Azzopardi and €900.00 to Anthony Azzopardi.
The following reasons were given for the decision.
• Duty of authority: The public authority had a duty to ensure that pavements and roads were kept in a good condition; though road users had to always act with care; re. J. Saliba vs Local Council St Paul’s Bay (CA) dated January 28, 2008.
• Condition of the road: the authority brought no proof to show that Mdina Road was in a good condition. It also had a duty to monitor the state of the roads.
Nor was there evidence that Mr Azzopardi had contributed to the incident, by overspeeding. Certainly excessive speed if proven, and negligence, if proven, would alter claimants’ legal position.
It had to be shown that Mr Azzopardi was driving at excessive speed.
The court did not accept Malta Transport’s argument that, the incident would have been avoided if Mr Azzopardi had been driving “dead-slow”.
• Loss of future earnings: As the material damages, were not in dispute, the court considered the loss of future earnings, suffered by Dominic Azzopardi.
The court made reference to case law for the purposes of determining the relevant factors to calculate the loss of future earnings.
The multiplier: The court had to consider the chances and changes of life, as well as the possibility that a person might not be in a position to work until pensionable age.
In this case, the court applied a multiplier of 32, in view of Dominic Azzopardi’s age (24 years).
Salary: In the light of the national minimum wage (€7,222) for the year 2009 and possible annual increments, the court considered the potential annual income of Dominic Azzopardi to be €12,083.
Percentage of permanent disability: the court said that it was vested with the discretion to assess the degree of incapacity, for purposes of establishing compensation.
Personal injuries were normally classified into three categories: (i) Total wreck cases where there was complete incapacity to work;(ii) partial wreck cases where a person’s ability to work was reduced and (iii) Loss of parts of body.
In Peter Sultana vs A Abela Caruana (App Civ) dated January 15, 2002, the court held that the disability could be psychological and not physical.
The disability had to have a negative impact on a person’s earning capacity. As regards to multiple injuries, Lord Justice Morris in Scott vs Musial said:
“The fixation of damages is so largely a matter of opinion of or impression that differences of calculation or assessment are to be expected. There is to some extent an exercise of judicial discretion.
“One method of assessment is to consider the sort of figure awarded for total incapacity, and estimate how far the case falls short of total incapacity; another approach is to see how the disability compares with the loss of a leg or other limb.”
The court noted that our Law Courts exercised its discretion to calculate the percentage of damage in respect of injuries and impairment ratings.
After the impairment ratings were established in respect of multiple injuries, the court had to assess the total disability. In this case, the court assessed Dominic Azzopardi’s permanent disability to be 29 per cent.
Lump Sum deduction: The standard 20 per cent lump sum deduction can be reduced for every year of delay. In Caruana vs Camilleri (PA) dated October 5, 1993 the court reduced this deduction by two per cent for every year of delay. In this case the court felt that it was fair to reduce this deduction to 16 per cent.
On this basis, the court calculated the loss of future income suffered by Dominic Azzopardi to be €94,191.
Dr Grech Orr is a partner at Ganado & Associates.