The institute of contributory negligence features in tort law (in legal parlance ‘culpa aquiliana’) – the law of fault. This institute features mostly in cases involving road accidents.

Contributory negligence essentially refers to the scenario where the injured party’s own conduct contributes to the damage that he has suffered. Strictly speaking, this kind of negligence is not exactly defined by our civil laws, but it is  implied through the general tort maxim that every person shall be liable for the damage which occurs through their fault (article 1031 of the Civil Code).

Naturally, people expect to be compensated whenever they feel they are suffering a damage but, the mere sufferance of a damage would not automatically trigger compensatory rights. One must always prove the element of fault which is the general requisite in a typical tort damages lawsuit.

In general, the elements of tort comprise the fault (the act that caused the incidence), the cause between the fault and the damage. As always – in lawsuits – all these elements must be satisfactorily proven by the claimant injured party.

Contributory negligence counters the tortfeasor’s fault. This occurs when a person pleads that one brought the damage through his own contribution – the saying goes that “it-tort ġabu b’idejh” [he brought it upon himself]. This kind of negligence defined the outcome of the case bearing the names ‘Busuttil v Abela’, that was delivered by the Court of Appeal on June 30.

The plaintiff, being an injured party, submitted that he was hit by the defendant’s vehicle while crossing a road. He contended that the defendant had failed to keep a proper lookout and, therefore, the accident occurred through her fault. Consequently, he claimed damages in court. The defendant countered by claiming that it was through the plaintiff’s fault that the accident occurred – she pleaded contributory negligence.

It resulted that the plaintiff had opted to make way across a road without utilising the zebra crossing. It was found that the claimant opted to cross while being too close and in front of the defendant’s vehicle, and at that moment, the defendant drove forward and struck the claimant.

The court found that the pedestrian had indeed exposed himself to danger, especially when he opted to cross the road while being too close to a halted vehicle

The First Hall, Civil Court noted that the plaintiff opted to make his way across a busy road without considering that his mode of passage was not the safest option. The plaintiff argued that the defendant should have kept a proper lookout and foresaw that he was about to make his  way across.

The court highlighted the important principle that any road user – be it a driver or a pedestrian – must always maintain a proper lookout while crossing the road.

Moreover, a pedestrian has no right to substitute the driver’s perspective, for such driver might not necessarily have the same judgement or perspective. The court found that the pedestrian had indeed exposed himself to danger,  especially when he opted to cross the road while being too close to a halted vehicle. This increased the danger of him being hit, for the driver had no chance to avoid the collision.

In addition, the court acknowledged that some form of fault was to be attributed to the driver. It argued that even though the plaintiff did expose himself to danger, the defendant had failed to keep a proper lookout on the way ahead. The defendant admitted that she did not notice the pedestrian because she had her focus on the right-hand side of the road, which road was sourcing the vehicle traffic. Had the defendant looked ahead before opting to drive ahead, she would have noticed that a pedestrian was attempting to cross the road. After all, a driver was still bound to  observe and be aware of their surroundings, especially in their close vicinity. The defendant defaulted this obligation and therefore, a grade of fault was attributed to her. 

The plaintiff was, therefore, found to have negligently contributed to the road accident in question. His liability was quantified in three-fourths part, while the remaining one-fourth was attributed to the defendant. The plaintiff was also awarded the sum of €1,825.03 in damages, based on a 15 per cent disability and the defendant’s decree of fault. Additionally, the plaintiff was condemned to pay three-fourths part of the court costs.

The plaintiff appealed.

According to him, the first instance court was erroneous when it decided that he had negligently contributed to the road accident. He also questioned the quantum awarded.

The defendant – appellate, objected and held that the first court’s judgment merited confirmation.

The court of appeal considered that plaintiff – now appellant − had

  1.  unilaterally decided that he had the right to cross the road because, according to him, the defendant had to stay put until the side traffic cleared;
  2. failed to notice a zebra crossing nearby the accident spot;
  3. that no eye contact was made between the parties before the hit, and;
  4. that he opted to proceed his way across while being very close (less than a metre away) to the car.

In consideration of the latter, the Court of Appeal confirmed the first judgment, on grounds that the appellant did negligently contribute to the damages that ensued.

Mary Rose Micallef is an associate at Azzopardi, Borg and  Associates Advocates.

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