The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, on April 24, 2015, in the case ‘Joe Caruana v Philip Chircop & Sons and others’ held the employer jointly responsible for an injury suffered at the workplace, which could have been avoided, had the co-worker been duly supervised.
On June 15, 1999, when Joe Caruana and Emmanuel Sciberras, who were both employees of Valley View Development Ltd, were constructing a wall, a nail hammered in by Sciberras flew out of place straight into Caruana’s right eye.
Sciberras was licensed as a store mason, with 35 years’ work experience. Caruana had been working with the company for five years.
As the company had not reported the incident to the Health Authority, the cause of the incident was not established.
Faced with this situation Caruana sued for damages. He filed his case against his employer as well as against his fellow worker Sciberras.
Sciberras, in reply, pleaded that the event was an accident: article 1029 of the Civil Code.
The first court, however, noted that for it to be considered an accident, it had to be inevitable and could not be avoided by ordinary diligence of a bonus pater familias: ‘Catrina Bezzina v Giorgio Grech et (PA)’ dated June 7, 1938.
The defendant bore the burden of proof: ‘Paul Vassallo et v Carmelo Pace’ dated March 5, 1986 (CA Vol LXXX.11.143).
On July 6, 2011, the First Hall of the Civil Court held Sciberras to be responsible for the damages and condemned him to pay €23,040.
The first court made a number of considerations.
Duty of an employer: An employer had to provide a safe place of work and a safe system of work. There were four elements which rendered a system of work to be unsafe:
a) that the defendant’s operations involved a risk of injury which was reasonably foreseeable;
b) that there was reasonable practicable means of obviating such risk;
c) that the plaintiff’s injury was caused by the risk in question;
d) that the failure of the defendant to eliminate the risk showed a want of reasonable care for the plaintiff’s safety: ‘Paul Grech v Carmelo Bugeja et’ dated October 9, 2006 (CA);
• The fact that a system of work had been in place for a long time did not signify that it was safe;
• An employer had to provide safe tools and proper machinery. It had to ensure that its workers were skilled for the task;
• An employer’s responsibility increased if risks were ignored. It also had to comply with general law.
The first court said that the company employed skilled persons, who did not require any special training. The place of work was not dangerous and the injury suffered by Caruana was not foreseeable. Nor was it the practice for store builders to wear protective eye-gear.
In this respect, the first court felt that the company was not responsible and it attributed blame to co-worker Sciberras. It found no contributory negligence.
Caruana was not to blame for the delay which was largely brought about by the company and, in this respect, it found no justification for any lump sum deduction
The first court passed on to determine the quantum of lucrum cessars – loss of future earnings. Article 1045(1) of the Civil Code provides:
“The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused.”
Caruana was born on March 17, 1953. He was 46 years at the time of the incident.
Expected yearly income: Not considering his post-tax additions to his salary, the court said he earned €9,000 annually, which it adjusted upwards to €10,974, taking into account any possible increments.
Disability: In the light of medical reports, it assessed that Caruana suffered a permanent disability of 19 per cent.
Lump sum deduction: The first court applied a 15 per cent deduction. It noted that Caruana took four years to file legal proceedings and the delay was not caused by Sciberras.
Aggrieved by the decision of the first court, Caruana entered an appeal. He submitted that: (1) the company should also be held liable; (2) the court should award material damages; (3) it should not have deducted post-tax additions; and (4) there should have been no lump sum deduction.
Co-worker Sciberras pleaded that he should not have been held liable for the incident, and that the company should be declared to be exclusively responsible.
As an employer, he said, it violated its legal obligations by not reporting the injury to the authorities.
This meant that the evidence against the company was not preserved.
He said that the company failed to provide protective eye gear. The injury could have been foreseen by the company, he maintained. An employer was duty bound to ensure that its employees did not injure themselves at work. An employer was obliged to provide a safe place of work as well as a safe system of work.
Sciberras maintained that his negligence had not been proven, and once this had not been established, he should not be held liable.
He added that, under Chapter 424, an employer should always guarantee the health and safety of all persons who could be affected by such work.
The company denied responsibility. It stated in reply that it employed skilled persons and that its place of work was not dangerous. It said that the incident was remote and could not be reasonably anticipated.
The Court of Appeal considered that an employer was duty bound to provide adequate supervision to render a place of work safe: ‘Joseph Cini v George Wells’ dated November 15, 2000.
It was held that when an employer engaged someone to carry out works, both the worker and the employee were liable jointly to the third party victim: re ‘Dr Titianna Bonnici v Nicholson Supermarket’ dated February 28, 2014.
The Court of Appeal maintained that:
• the incident in itself reflected the company’s shortcoming to ensure a safe place of work;
• the nail in the circumstances was not correctly fitted and came out of place. This could easily have been expected, pointed out the court.
The Court of Appeal was of the opinion that the nail had not been fixed properly in position. As the company was also the employer, it was also jointly responsible for damages.
If Sciberras had been supervised, it would have noticed the error. It concluded that the company as employer was jointly responsible together with Sciberras on a 50:50 basis, in terms of article 1050 (1) of the Civil Code.
The court was not in a position to award material damages once these had not been proven. It said that the first court was correct not to add the post-tax additions to Caruana’s income, as this had not been officially declared.
Caruana was not to blame for the delay which was largely brought about by the company and, in this respect, it found no justification for any lump sum deduction.
For these reasons, on April 24, 2015, the Court of Appeal varied the first court’s decision. It held both Sciberras and Valley View Developments Ltd to be jointly responsible and liquidated the damages to €27,206.
The remaining part of the decision of the first court was confirmed.
Dr Karl Grech Orr is a partner at Ganado Advocates.