The First Hall of the Civil Court, presided over by Madame Justice Jacqueline Padovani Grima, on January 11, 2016, in the case ‘Carmen Portelli, Denise Portelli, Jeffrey Portelli and Mariella Portelli v Jonathan Mifsud’, held, among other things, that a driver could not assume that no one would cross the road, especially if an area was crowded with people and there was a kiosk at the side of the road. The driver was ordered to pay €42,635 to the heirs of the victim.

In the morning of March 18, 2001, while driving his Peugeot in Ħal Far, limits of Birżebbuġa, Jonathan Mifsud ran over George Portelli who was attempting to cross the road.

On impact Portelli was sent flying four metres and suffered severe spinal and cranium injuries. He died three days later.

Mifsud’s car was damaged considerably.

At the time of the incident, there were a lot of people, including children, at Ħal Far.

Subsequently, criminal proceedings were taken against Mifsud who admitted his fault of causing Portelli’s death by negligent and irresponsible driving.

In this case, the deceased’s heirs instituted legal proceedings for damages against Mifsud. They requested the court:

• To declare that the incident was caused by Mifsud’s irresponsible and negligent driving;

• To declare that he was fully liable for the damages; and

• To liquidate and to condemn him to pay the damages which it liquidated.

In reply, Mifsud contested liability, denying responsibility for the incident. He argued that it was up to the heirs to prove damages.

The court considered that the road where the incident occurred was straight and that any driver would have a clear vision of the road ahead. The victim had nearly crossed the road.

The inquiring magistrate had concluded that Mifsud was driving at excessive speed at the time of the incident. He was found to have acted negligently and that, if he had kept a proper lookout and had driven at a more moderate speed, the incident would have been avoided.

On February 11, 2010, the Criminal Court had found Mifsud guilty of causing the death of Portelli, by driving dangerously and at excessive speed at the time of the incident.

It was not the case that the victim rushed across the road without giving drivers the opportunity to take evasive action. Mifsud was declared to be driving at an irresponsible speed

The court noted that claimants established that they were Portelli’s sole heirs. It considered that, according to general principles, it was the obligation of every driver to regulate his driving according to the conditions and circumstances of the situation, depending on the time, climate, temperature, the state of the roads as well as other conditions which could influence driving: vol. XLVI PI pg112; vol. LI P I p. 210.

A driver had to show diligence, and any lack of diligence had consequences, the court said.

Article 1032(1) of the Civil Code provides:

“A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus pater familias.”

A person who caused damages as a result of his lack of prudence, diligence and lack of attention as a bonus pater familias was to be held responsible. It was up to claimants to bring proof: re ‘Dr H. Leniker v H. Camilleri’ (PA) dated January 27, 2011. It had to be shown that the defendant was negligent, as a result of which damages were caused.

The court ruled that Mifsud’s version was not credible and also inconsistent with what he had previously stated at the time of the incident. While at the time of the incident he could not remember his speed, he gave a different version of events during the court proceedings. It was unlikely that Portelli had rushed suddenly onto the road as Mifsud claimed.

It was more likely that he was hit as a result of Mifsud’s overspeeding.

A driver was duty-bound to keep a proper lookout and have full control of his vehicle, the court said, citing ‘G. Debono v P. Camilleri’ (Civil Appeal) dated February 23, 1962.

“Keeping a proper lookout” did not mean simply a driver had to look ahead, as stated in ‘David Housley et pro et noe v Ivan Cutajar’, dated October 16, 2014.

A driver could not assume that no one would cross the road, especially if an area was crowded with people, and there was a kiosk at the side of the road.

Mifsud had to drive diligently and come to a halt if a person decided to cross the road 18 metres away.

The court considered that, from the evidence, the following resulted: the length of the tyre marks (18 metres); the violent impact; the ground was dry; the fact that Mifsud was unable to stop; and that Mifsud hit the victim when he had nearly crossed the road.

The court concluded that Mifsud was overspeeding, irrespective of whether there were a large number of people, including children, in the area at the time.

It said Mifsud did not keep a proper lookout.

He was not in control of his car and did not drive prudently.

It was not the case that the victim rushed across the road without giving drivers the opportunity to take evasive action. In this case Mifsud was driving at an irresponsible speed, pointed out the court. It was not the case where the victim contributed to the incident.

It resulted that:

• Place of the incident: there was no pedestrian crossing. The victim did not have the option to cross the road from a zebra crossing.

• The victim had nearly crossed the road and in fact the presence of the victim on the road should not have created an emergency to drivers, acting diligently.

The court also considered Mifsud’s admission of guilt in the criminal proceedings against him, where he confessed to driving negligently and of causing the death of Portelli by his irresponsible driving. The court declared that Mifsud was solely to blame for the incident and was accordingly liable to pay damages.

In liquidating damages, the court considered that:

• The deceased had a monthly income of €683 and €8,1999 annually.

• It applied a multiplier of eight: reference was made to chart followed in ‘George Spiteri v Ray Fava’.

• The disability was 100 per cent.

• From the total sum, it deducted 10 per centum, and assessed the damages to amount to €42,635.

For these reasons, on January 11, 2016, the First Hall of the Civil Court gave judgment by holding Mifsud to be exclusively responsible for the death of Portelli and to be liable to pay the damages to the heir (€42,635). Mifsud was ordered to pay this amount.

Dr Karl Grech Orr is a shipping partner at Ganado Advocates.