The heirs of a 32-year-old man who died when he fell four storeys into a quarry where he worked in 2009 had their compensation docked by almost €400,000 after an appeals court found that part of the wage on which the payout was calculated was illegal.

The court, presided over by Chief Justice Mark Chetcuti and judges Christian Falzon Scerri and Josette Demicoli, ruled that a substantial part of the wage used to calculate the compensation by the first court was not declared with the tax authorities and was therefore illegal.

It was ruling on an appeal filed by Polidano Brothers Limited which complained about the €591,360 it had been ordered to pay to the heirs of Louis Cassar, a 32-year-old worker who died at their Tal-Qawwi quarry in Triq Lapsi, Siġġiewi on April 8, 2009. Cassar succumbed to his injuries on April 25.

The court heard how Cassar boarded a vehicle parked close to the quarry’s edge to move it as it was in the way. As he leaned over its side, where the ignition was, he slipped and fell down a height of four storeys.

'Highly insensitive' line of defence – court

The company argued that the worker was solely responsible for the accident, even suggesting it was a suicide due to alleged family problems. This line of defence earned the company strong condemnation by the court which described it as “highly insensitive”.

The court noted that although the company expressed sympathy over the death, it went on to suggest that Cassar had taken his own life by jumping from a height.

“The court is not at all impressed by this argument which it even included in writing in the appeal application. Apart from being highly insensitive, considering that Cassar lost his life while he was going about his work for the company, there was not the slightest hint of concrete proof that the accident happened because Cassar had some problems that could have pushed him to take his own life,” the court said.

It observed that the account given by Cassar’s colleagues who were with him at the edge of the quarry when he fell off was identical to the description given by Cassar to his relatives on his deathbed.

The judges went on to confirm the responsibility attributed to the company by the first court, which found a lack of health and safety measures that caused the fatal fall. They also noted that the health and safety engineer who had drawn up a risk assessment had not visited the quarry for 18 months before the incident.

'Company failed in obligation to protect its workers'

On the provision of health and safety equipment, the court heard how Cassar was not wearing the provided safety helmet and how this would have been useless anyway since it did not have a fastener to keep it in place in event of a fall.

It said the employer’s obligation goes beyond the simple provision of equipment and protective clothing. The employer must ensure that the protective equipment is worn and even discipline those who do not wear it.

“In light of all these considerations, this court cannot but conclude that the company systematically failed in its obligation to maintain a good system to protect its workers, particularly Cassar,” the court ruled.

As it considered the company’s argument related to the sum awarded to the heirs, the court found that according to Cassar’s last income tax declaration, he earned just over €8,200. However, according to evidence, Cassar was earning two wages: one issued on a Polidano Group letterhead which he declared for tax purposes, and another identical one, for a similar amount, but without the group logo.

The court noted that the company could not explain this and the company representative was “very evasive” when asked about this “because he had something to cover up”.

The judges said that unlike the first court – which said it would be committing an injustice if the illegal wage was not included for the purposes of compensation – they could not allow an illegal payment to be included in his total earnings. They therefore recalculated the compensation due to the heirs and lowered the original €591,360 to €217,892.

The court further ordered that the Commissioner for Revenue be notified of the judgment for any action he deemed necessary over the fact that Polidano Brothers Limited was issuing two salaries to Cassar as well as an investigation into Cassar’s tax evasion.