A New Year’s Eve brawl cost a defendant the sum of €109,609.60, including court costs. The dynamics of the case lead to tort proceedings. Tort proceedings feature in article 1030 and the following, in the Civil Code, chapter 16 of the Laws of Malta.

Essentially, the law states that every person shall be liable for the damage which occurs through his fault. In other words, the concept of tort means a legal liability for the person who commits a fault against a claimant who proves to have suffered damages because of such misdemeanour.

The legal concept of tort (or delict) dates to Roman law. This concept allowed persons to claim damages, when such damages ensued from an event not having a contractual basis – theft, assaults or other criminal actions (not having a contractual background) and motor-vehicle accidents are usually the typical cases that feature in such lawsuits.

Civil liability, having a contractual basis, is to be distinguished from such events, because in tort, no contractual basis, between the tortfeasor (the guy who committed the fault) and the victim, would have existed. On the other hand, contractual liability features when an agreement between parties ensues and either of party defaults the a priori arrangements.

The judgment bearing the names ‘Ellul Sullivan v Vella’, delivered by the First Hall, Civil Court on September 29, dealt which such classic tortious scenario involving a New Year’s Eve nasty brawl.

Claimant, Ellul Sullivan, contended that he was maliciously attacked by respondent Vella. Vella answered that Ellul Sullivan was to blame for the brawl incident.

In such cases, it is normal for the courts to face conflicting evidence and testimony of events. In fact, and in this case, the court dealt with a different and subjective interpretation of events.

In a nutshell, the plaintiff testified that the respondent abruptly attacked him in the face for no reason (għal xejn b’xejn), to the extent that several teeth were knocked out. Vella held that the plaintiff was drunk and provoked a fight, to the extent that he (the defendant) had to self-defend himself by punching away the plaintiff also – according to the defendant – in an attempt to halt the brawl.

Our courts have time and again commented on the principles that the judicial fora must follow in such cases. Same did this judgment; citing two hierarchical rules – the first being that the courts must essentially attempt and identify the most credible of versions, and should this exercise prove futile or too difficult to ascertain the true events, it must apply the maxim actore non probante, reus absolvitor – should the plaintiff fail to prove his case, the defendant is absolved. At the end of the day, the court also commented that in such suits, and when it comes to evidence, quality supersedes the quantity.

The court tested the credibility of both sides. It noted that the plaintiff’s testimony slightly changed over the years (as the incident occurred in 2012). On the other hand, discrepancies were noticed in the respondent’s testimony – the court went into comparing the testimony that was released by same in previous criminal proceedings and the respondent’s testimony in the civil suit. Therefore, the court considered honest the version that was submitted by Ellul Sullivan. Altogether with this, the criminal proceedings that followed such events found Vella guilty to have caused grievous bodily harm.

In such suits, and when it comes to evidence, quality supersedes the quantity

Part two of this judgment deals with the quantification of damages. In tort, fault must be first established; if it is, then the consideration of the monetary compensation would follow, if the damage ensued is satisfactorily proven. Damages may be qualified into two parts –

the immediate and actual damages/expenses (damnum emergence) and the future losses (lucrum cessans). The former are practically easy to quantify, for these kinds of damages are merely those immediate expenses that the victim had to undertake, by example, any medical expenses. The latter – the lucrum cessans – is usually calculated on a formula that our courts had established through jurisprudence.

Though the court-appointed expert, the court determined that the plaintiff did suffer damage to his teeth. In this case, the plaintiff also claimed psychological (not moral) damages – his engaged psychiatrist attributed a 30 per cent permanent psychological disability. On the other hand, the court-appointed psychologist attributed a 24 per cent psychological damage.

When it comes to court-appointed experts, the courts are never bound by their conclusions i.e. they may determine different conclusions, if – and only if – the courts seriously feel that their appointed expert failed to critically address the merit at hand. In addition to the physical damage, the court found that the plaintiff suffered as well from psychological harm.  The First Hall proceeded to liquidate the damages – €11,270 were awarded in total as damnum emergens, which consisted of medical and legal expenses.

With respect to the quantification of the lucrum cessans (loss of future earnings), the court awarded the sum of €102,009.60. By the word of the law, lucrum cessans damages are defined as loss of future earnings arising from any permanent incapacity, total or partial, which the tortious act may have caused.

The court arrived at this amount by considering the plaintiff’s percentage of disability, the number of years between the incident and pensionable age (known as the multiplier), the earnings of the plaintiff and the lump-sum deduction. After referring to previous jurisprudence, the court held that it would not be considering the 24 per cent of psychological disability as established by the medical expert but reduced it to 18 per cent. The reasoning of the court was that a few months after the incident, the plaintiff was in gainful employment in the gross amount of €14,400.

With regards to the multiplier, the court also reduced this – from 49 to 40 years. The reduction was due to the ‘uncertainties of life and the possibility that the victim does not reach pensionable age’.

When the court came to considering the earnings, it took into account the gross and not the net pay of the victim. Finally, with regards to the lump sum deduction, as opposed to the usual 20 per cent reduction, the court reduced it to merely eight per cent, given that any delay in the case was not attributable to any of the parties.

The global sum of damages awarded was €109,609.60. This judgment has not yet been appealed.

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


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