The First Hall of the Civil Court, presided over by Madame Justice Jacqueline Padovani Grima, on June 13, 2016, in the case ‘Middlesea Insurance plc as subrogated to the rights of Mario Debono in his own name and in representation of The Village Pharmacy v Gilbert Bugeja’, held, among other things, that excessive speed should be taken into account if it was a determining factor for causing an incident and could be considered as a contributing factor.
On December 24, 2012, at around 5.30pm, a traffic incident occurred in Notabile Road, Birkirkara, involving Mario Debono in his Audi A6 and a car driven by Gilbert Bugeja.
The parties, however, gave two conflicting versions of what happened. While Debono claimed to have been moving slowly down the left side of Notabile Road opposite the Consolidated Biscuits factory, and indicated he was to turn left into a narrow lane off Notabile Road, Bugeja reported that Debono rushed suddenly into the principal road from a side street, causing the collision.
On one side, Debono claimed that Bugeja crashed into him from the back, while he was attempting to turn into a side street. Bugeja, on the other hand, stated that Debono was to blame for the incident.
As a result of the incident, Debono’s Audi was reduced to total loss, beyond repair.
Middlesea Insurance plc reimbursed Debono with €25,000 for the damage under a comprehensive policy and subrogated his rights.
Faced with this situation, Middlesea Insurance, together with Mario Debono in his own name and in representation of The Village Pharmacy, proceeded to file legal proceedings requesting the court to declare Bugeja solely responsible for the traffic incident of December 24, 2012, to liquidate the damages and to condemn him pay those damages.
In reply, Bugeja contested the legal action and insisted that Debono was solely responsible.
In case of conflicting testimony by the parties, the court had to consider which testimony was more credible on a basis of a balance of probabilities. It was not whether the court absolutely believed one party but whether the explanation was possible.
The court found the defendant’s version to be more credible. It said that there was no reason to discard Bugeja’s version and maintained that a driver had to keep a proper look out and be aware of other road users.
Gibb’s Collisions on the Highway states: “It is the duty of every motorist to look where he is going and to keep a reasonably careful lookout for other road users so that a collision may be avoided. He must not look only straight ahead but also towards the side, especially at street junctions.”
This concept of proper lookout was adapted by English Courts in ‘Newhaus N.D. v Bastion Insurance Co. Ltd “Keeping a proper look-out means more than looking straight ahead – it includes awareness of what is happening in one’s immediate vicinity. A motorist should have a view of the whole road from side to side and, in the case of a road passing through a built up area, of the pavements on the side of the road as well.”
According to Maltese case-law, it was held that excessive speed alone was not enough to render a person responsible, not even partially
The court made reference in ‘George Scicluna et v Victor Cini (CA)’, dated October 5, 2001, and to ‘Stagno Navarra v Saliba (Vol. XLV.1.389)’, noting that a driver entering a main road had to show greater care, as his manoeuvre disturbed the flow of traffic on the principal road.
As regards the rules regulating stop signs, article 75 of the Highway Code states that “stop means stop”. In the Driving Manual, it is stated: “On a stop sign you must stop. You must not then drive on and enter the major road until you can do so without causing danger or making drivers on that road change speed or direction.”
Authors Macintosh and Scobie write in their book Negligence in Delict: “The driver, upon reaching a stop sign, must bring his vehicle to a complete halt and must both look and listen in both directions in order to apprehend fully what vehicles are approaching, how far they are away and what speed they appear to be progressing and then only if quite satisfied that it is safe for him to enter the intersection may proceed further.”
The court said that, according to traffic regulations, Debono had to be more vigilant than Bugeja and Debono had to give way to traffic on the principal road.
The court found that Debono was mainly to blame for the incident. He either failed to keep a proper look out or misjudged the distance with other road users and thus brought about the collision.
In ‘Jeffrey Caruana v Carmelo Montesin’, dated July 13, 2010, it was held that the exact place where the impact took place was irrelevant. The central fact was that the driver of a secondary road carelessly entered a main road when this was not traffic free.
According to article 1051 of Chapter 16, there would be contributory negligence if:
(a) the victim acted negligently; re: ‘Sacco et noe v Bonnici (CA)’ dated February 19, 1962.
(b) the victim’s negligence contributed to the incident taking place; re: ‘Bugeja noe v Borg (PA/HH)’ dated May 11,1983.
According to Maltese case-law, it was held that excessive speed alone was not enough to render a person responsible, not even partially.
The court noted that there were judgments where it was held that excessive speed was a factor that had to be considered to establish responsibility, particularly when, as a result of excessive speed, the damages were considerable: ‘Mamo v Muscat Doublesin (PA)’ dated April 9, 1963.
The court maintained that the speed should be taken into account if it was a determining factor for causing the incident, and could be considered as a contributing factor: ‘Bonello v Baldacchino (PA)’ dated January 15, 1997 and ‘Stanley v Zahra (PA/JSP)’ dated March 23, 1993.
In the circumstances, the court did not believe that defendant was driving at 60kph or 70kph. In view of the violent impact, the court felt that he must have been driving much faster.
For these reasons, on June 13, 2016, the First Hall of the Civil Court decided that Bugeja was 25 per cent liable for the traffic incident in Notabile Road, Birkirkara, and condemned him to pay Middlesea Insurance €6,552 and €72.50 to Debono in his own name and on behalf of The Village Pharmacy.
Dr Karl Grech Orr is a partner at Ganado Adovates.