The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Giannino Caruana Demajo and Mr Justice Noel Cuschieri, in the case ‘Joseph Zammit v Joseph Bonello and others’ held, among other things, that the fact that a person was overspeeding did not render him automatically responsible for a traffic incident.
Joseph Zammit filed legal proceedings for damages suffered in a traffic incident on December 26, 2000, in Ingieret Road, Luqa. Zammit was a passenger in the front seat of a Seat, driven by Paul Mallia.
It appeared that Joseph Bonello, driving a Hyundai, hit the side pavement, and swerved to the other side of the road. He collided in the Seat driven by Mallia, travelling in the opposite direction towards Marsa.
On impact, Mallia was flung out of the windscreen. Both cars were damaged considerably. This version of events was confirmed by Zammit, Mallia and the sergeant’s report.
While Bonello admitted at the time of the incident colliding with Mallia, after losing control of his car, he later changed his version during the proceedings when he claimed that it was Mallia who drove on the wrong side of the road; and that Mallia was overspeeding, with his brights blazing at him. He said that he moved to the left side of the road, to avoid a collision but hit the pavement and that Mallia’s Seat crashed into him.
The First Hall of the Civil Court, on March 1, 2011, dismissed Zammit’s requests, and declared that there was no evidence to hold Bonello responsible for the traffic incident.
The fact that a person injured himself or died in a traffic incident did not exempt him from responsibility. An injured party still had to prove his allegations, pointed out the first court.
It noted that the Criminal Court did not find Bonello to be responsible for the traffic incident.
There had to be evidence of negligent or reckless driving, or of driving dangerously and of taking useless risks: re: ‘Police v Alfred Mifsud, Criminal Court of Appeal’ dated May 6, 1997 (Vol. LXXXI-IV-157). Dangerous driving exposed others and/or their property to risk. The time and place of the incident, the volume of traffic and whether or not there were foot pedestrians had to be taken into account.
Negligent driving consisted of lack of ordinary prudence, which a driver should take in order to avoid a traffic accident (Criminal Appeal, ‘Police v Antonio Spiteri’ (Vol. XLIV-IV-892).
The obligation to keep ‘a proper lookout’ was more than just keeping an eye on the road or to have a clear view. A driver had to be aware of his immediate vicinity. He had to know what was around him. It was not enough to simply look ahead or drive slowly, re: ‘P. Spiteri v R. Caruana (App)’ dated October 5, 1998. Every driver had to drive depending on the conditions and circumstances of the road, the traffic and other relevant factors (XLVI-PI-P112). If negligent, he could be held responsible if a traffic accident occurred.
Zammit, aggrieved by the decision of the First Hall of the Civil Court, entered an appeal, requesting its revocation. He submitted that reference to the Criminal Court’s decision which freed Bonello from responsibility was incorrect, as the level of proof in criminal proceedings was much higher than in civil proceedings. The fact that Bonello was freed from the criminal charges did not mean he could not be held responsibly civilly for the traffic incident.
The Court of Appeal pointed out that the grade of proof in civil cases was on the basis of a balance of probabilities, and not beyond reasonable doubt as in criminal proceedings.
The fact that a person injured himself or died in a traffic incident did not exempt him from responsibility. An injured party still had to prove his allegations, pointed out the first court
Conflicting testimony: A court always had to consider which version was more credible, and consistent in view of a balance of probabilities and preponderance of proof (‘PA Farrugia v Farrugia’ dated November 24, 1966).
It resulted that there was serious lack of diligence on the part of Bonello. It appeared that he did not have full control of his car. Instead of stopping his car, after allegedly being blinded by the brights of the oncoming car of Mallia, he hit the pavement and ended up crashing into the Seat of Mallia.
The Court of Appeal did not find Bonello’s affidavit to be credible, in particular when at the time of the incident, he admitted to the police sergeant that he hit the pavement, spun to the other side of the road and accidentally crashed in Mallia’s Seat.
The Court of Appeal said that the first court should have concluded that Bonello in the Hyundai invaded the wrong side of the road, and collided with the Seat.
As regards Bonello’s allegation that Mallia drove his Seat in the middle of the road, this was not correct and not supported by evidence. The contrary was true. Mallia’s version was corroborated by Zammit. None of the parties disputed the sergeant’s report, which showed the position of the cars at the time of the incident.
In ‘Carmelo Scerri v Esther Darmanin’ dated October 20, 2003 (PA), it was held that when a police report was prepared professionally, and was not in dispute, it should be taken as proof of what happened. The sergeant’s report confirmed Mallia’s version.
As regards speed, excessive speed did did not make a person automatically legally responsible for the traffic incident.
In ‘Carmelo Micallef v Richard Spiteri’ (App. (iv), dated January 15, 2002, the court maintained that not every breach of traffic regulations was relevant for the determination of responsiblility. The court had to see the immediate cause of the incident and whether the act of a party provoked or contributed to the incident.
Even if Mallia was overspeeding, he was driving on his side of the road. The traffic incident occurred only because Bonello was not in control of his car, maintained the court.
The Court of Appeal concluded that Bonello’s negligent driving was the immediate cause of the incident.
Even if Mallia had been driving at excessive speed, the fact remained that he was driving on his side of the road and he did not expect to face Bonello approaching from the opposite direction in his Hyundai.
The fact that when Mallia tried to brake, his car did not come to a halt and the fact that the impact of the two cars involved was considerable, did not mean that Mallia was not in control of his car. The incident occurred in split seconds.
The court considered further the momentum of both cars and that, on impact with the pavement, Bonello’s Hyundai ended up on the wrong side of the road.
The poor driving of Bonello created a situation where Mallia could not avoid the collision. The court did not feel that Mallia contributed to the incident.
For these reasons, on March 27, 2015, the Court of Appeal gave judgment by accepting the appeal and by revoking the decision of the First Hall of the Civil Court, whereby it declared that Bonello was responsible for the traffic incident of December 26, 2000, and was answerable for damages.
The case was remitted to the First Hall of the Civil Court for continuation.
Dr Karl Grech Orr is a partner at Ganado Advocates.