The First Hall of the Civil Court, presided over by Mr Justice Silvio Meli, on October 18, 2016, in the case ‘Elaine Camilleri v Ronald Mallia’ held, among other things, that the fact alone that a driver was overspeeding did not automatically render him fully responsible. In the circumstances, the applicant was found to have contributed to the incident by crossing the road carelessly.

On March 12, 2007, Elaine Camilleri was run over by Ronald Mallia, driving a Peugeot 306, while she was attempting to cross Qawra Street, Qawra, at 10pm,.

Camilleri was permanently injured. She held Mallia to blame for the incident, which she said was caused by his negligence, imprudence and lack of observance of traffic regulations. She proceeded to file legal proceedings against him for damages suffered as a result of the incident.

Mallia, in reply, disputed responsibility and contested liability for the damages. He claimed that Camilleri had caused the incident.

At the time of the incident the street was dark and there were many cars parked on the side of the promenade. In order to cross the road, Camilleri had to emerge between parked cars. Allegedly before crossing the road, she looked at both sides and started to cross when she felt that the road was clear. She was hit at the heel, before making it across. Mallia left brake marks of over 30 metres.

A person has to remain in control of his vehicle at all times. Pedestrians, on the other hand, have to act carefully

Mallia, on the other hand, gave a different version of events. He said that as he approached Qawra Palace Hotel he was overtaken by another car, at which point Camilleri suddenly rushed out from between cars parked alongside the promenade without looking.

He maintained that she was engrossed with her mobile phone and did not cross the road carefully. At the time, the road was wet, he said.

The court considered that Mallia’s car left brake marks of around 30 metres and, that according to the police reports, the road was dry at the time.

In ‘Baldassare Baldacchino noe v Dr Carmelo Mifsud Bonnici noe’ dated November 30, 2005, the First Hall of the Civil Court held that a driver was obliged to exercise the diligence of a bonus paterfamilias and to drive reasonably, in view of the road configuration, the traffic, the weather, the conditions on the road, the extent light and vision on the road as well as other conditions which could require a driver to act with extra care. A driver should always have a full control of his car.

Overspeeding could be a determining factor to show whether a driver was responsible for the incident. Even if a driver was below the speed limit, he could still be held responsible if his driving was imprudent, in view of the circumstances and the general conditions of the road. A person had to remain in control of his vehicle at all times. Pedestrians, on the other hand, had to act carefully, as a reasonable prudent man would do in similar circumstances.

The court felt that Camilleri did not cross the road carefully and that she was responsible for contributory negligence. Mallia was driving at excessive speed and was not in full control of his car, as evidenced from his brake marks. The court maintained that Mallia was also partly to blame for the incident.

It said that the incident was caused by the lack of diligence of both parties and that both were equally at fault. The court liquidated damages, damnum emergens at (€76.25) to be apportioned equally (€38.12) between the parties.

Reference was made to ‘Mark Borg v Gozo Channel Company Ltd et’ dated October 31, 2003:

The court had to consider the financial loss, the loss of future earrings (lucrum cessans) suffered as a result of the injury.

Injury: In this case, Camilleri fractured her left heel and hurt her Achilles tendon. Although she recovered and regained full movement, the medical expert concluded that she sustained an eight per cent permanent disability, as she became more vulnerable to arthritis at an early age and to inflammatory problems in her left leg. This court agreed with this assessment.

Multiplier: The court said under case law it had to consider the working life expectancy of the victim. The Court has to consider also the chances and changes of life.

Reference was made to  ‘Evan Xuereb v Vincent Spolding et’ dated July 10, 2003.

In Atiyah’s Accidents, Compensation and the Law, author  Peter Cane provides that:

“The multiplier is not the product of precise calculation, but of estimation in the light of the facts of the particular case and of other comparable cases.”

In view of Camilleri’s age (20 years), the court decided on a multiplier of 33.

Income: The court noted that Camilleri was a student working as a waitress but felt it more appropriate to consider the national minimum wage, any possible cost of living increases and the possibility of any increase in her salary, to arrive at the amount of €9,000.

Lump sum payment reductions: In view of the fact that the incident occurred in March 2007, there should be no lump sum payment reduction.

In view of above, the court calculated the lucrum cessans to amount to € 23,760; Mallia was only responsible for half, € 11,800; and one half for the damnum emergens, € 38.12.

For these reasons, on October 18, 2016, the First Hall of the Civil Court gave judgment by condemning Mallia to pay Camilleri the sum of € 11, 912.

Dr Karl Grech Orr is a partner at  Ganado Adovates.