Personal Injury

A tort is an act or omission which causes some form of loss, harm and/or damage to another person. Harm or damage is often caused to a person (the ‘victim’ or ‘injured party’) by the negligent conduct, unprofessional behaviour or malicious intention of another (the ‘tortfeasor’).

This means that as long as ‘fault’ can be established, whether by the commission of a harmful act or the omission of another, the tortfeasor will be found responsible at law to compensate the victim for the harm or damage caused.

According to Maltese law, ‘fault’ must be proven in order for there to be a responsible party. This means that although the tort (meaning the act or omission which caused damage/harm to the victim) has been obviously committed by someone, that ‘someone’ will not be held automatically responsible and will not have to automatically compensate the victim. The victim will still, therefore, have to prove his or her case.

One cannot obtain compensation when damage is caused by a fortuitous event or in consequence of an irresistible force. The primary reason is that no one can be held to be at fault if the event causing damage was truly out of one’s control.

When a group of persons cause damage or harm to others, each one of them may be held responsible. Therefore, an injured party may institute proceedings against all persons involved in causing the harm.

If it is proven that two or more persons have maliciously (intentionally) caused the damage, their liability shall be joint and several - in equal portion. However, when some have acted maliciously, and some have acted without any malice, those who have acted maliciously shall be jointly and severally liable whilst those who acted without malice shall only be liable for such part of the damage as they may have caused.

A principle at known known as 'volenti non fit injuria' holds that if a person knowingly and willingly engaged in a dangerous activity, then the injured party cannot claim any compensation for any loss suffered.

Monetary compensation is the main form of compensation awarded in cases involving tort. The general principle is to reintegrate the injured party to the position he or she was prior to the harmful act. Although a full reintegration is often times impossible, the compensation awarded attempts to reflect the loss suffered by the injured party. This principle at law is known as ‘restitutio in integrum’.

For example: if the victim loses a finger because of the tort committed by the tortfeasor, the victim can never get his or her finger back. However, the compensation to be awarded to the victim will reflect the actual loss suffered (such as medical expenses) and will also take into account how the loss of said finger affects the injured party’s future earnings.

The Maltese Civil Code (Chapter 16) speaks of the ‘Measure of Damages’. Essentially, it states that the compensation which must be given by the tortfeasor to the victim must constitute of:

(a) The actual loss suffered (such as medical expenses relating to the injury in question); and

(b) The loss of actual wages or other earnings; and

(c) The loss of future earnings arising from any permanent incapacity which the act may have caused.

In 2018, another type of compensation was added. As of 2018, the Courts can award compensation relating to the moral or psychological harm which the injured party suffered as a consequence of the harmful act. However, this only applies when the damage caused arises from a specific set of criminal offences. A capping of €10,000 also applies to this particular type of compensation.

In 2020, a new law was introduced - known as the law of the ‘Good Samaritan’. This law states that any person who causes damage in the performance of a rescue or in the course of assisting another person who life or personal safety is in clear danger, shall not be liable for any damages which may arise during the course of such rescue or assistance.

The law, however, also states that the person performing the rescue or granting the assistance shall be liable for damages if negligence or malice was involved.

The law states that:

(a) Persons with a mental disorder or other condition which renders them incapable of managing their own affairs;

(b) Child under 9 years of age; and

(c) Children who have not attained the age of 14 years (unless they have clearly acted with mischievous discretion)

…shall not be bound to make good the damage caused by them.

As one can see, the law creates a gap between children who are between the ages of 9 and 14. Whilst children under 9 can never be found responsible, the law implies that children between the ages of 9 and 14 can indeed be found responsible only if they have acted with mischievous discretion, ie. manifest bad intent.

Although the law states that persons with a mental disorder, minors under the age of 9 and minors who have not reached the age of 14 (unless they have acted with mischievous discretion) cannot be held responsible, this does not mean that no one will have to compensate the victim.

Here, the law states that any person having the charge of said minor or person with a mental disorder, shall be liable for any damage caused by such minor or person. The law, however, continues to state that such person will only be responsible if he or she had failed to exercise due diligence in attempting to prevent the harmful act from taking place.

Both an employee and an employer may be found responsible under tort law. This is because the law speaks of ‘persons undertaking work without necessary skill’ and ‘employment of incompetent persons’ - rendering the possibility for both the employee and/or employer to be responsible under tort law when the damage is caused during the course of one’s employment.

A hotel-keeper is liable for harm or damage caused by other guests up to an amount of €174.70c. However, the hotel-keeper's liability for harm is unlimited when:

(a) the lost property is deposited to him; or

(b) has refused to accept deposit which he is due to accept according to law; or

(c) he or any person in his employment are the ones causing harm

However, there are certain exceptions which apply, such as when:

(a) the damage is caused by a fortuitous event or irresistible force;

(b) the damage is caused by a reason inherent to the nature of the property in question;

(c) the damage is caused by a guest him or herself or by any person entrusted by the guest.

The law holds the owner of an animal or the person using the animal, to be liable, if the animal causes harm. This responsibility arises even when the animal has escaped or is strayed.

In cases where buildings cause harm because they fall, if such fall is due to want of repairs or a defect in its construction, the owner of the building will be held responsible. However, the owner will only be responsible if he was aware of such defect or had reasonable grounds to believe that the defects existed.

The law clearly states that an action for damages shall lie even where the party causing the damage was, at the time, in a state of intoxication - unless it is proven that the intoxication was not intentional.

The law states that the courts may, in addition to any actual loss and expenses incurred, award to the heirs of the deceased person any other damages.