During the initial onslaught of the COVID-19 pandemic in Malta and after the ordering of the general closure of the courts, the Constitutional Court waded on as much as possible and, among others, delivered judgement on two appeals from a judgment given on December 11, 2019 by the Civil Court, First Hall acting according to its constitutional jurisdiction, and in relation to fundamental rights as provided for in the Constitution and the European Convention on Human Rights (the “Convention”).

The Constitutional Court delivered its judgement on both appeals on March 27, 2020, in the names of Alexander et pro et noe v. It-Tabib Prinċipali tal-Gvern (Saħħa Pubblika) et.

The facts of the case related to a dockyards’ employee being regularly exposed to asbestos throughout his working hours during his 28 years of employment there. On the basis of the evidence submitted and considered by the courts and established law, this was held by both courts as causing the development of cancer and eventually leading to his untimely demise on April 20, 2018, as claimed by the plaintiffs. Essentially, the plaintiffs sought a declaration as to the violations of the rights referred hereunder and a quantification of damages together with an order of payment in their favour.

The legal reasoning adopted and accepted by the Constitutional Court mostly coincided with that of the Civil Court, First Hall; however, it varied and revoked the awards on the basis of factual evidence and procedural facts. It importantly acceded to claims rejected by the first court on the basis of evidence. The final result is quite substantial.

In its first instance judgment, the Civil Court, First Hall had found a violation of the fundamental right to life protected under article 33 of the Constitution and article 2 of the Convention, for which the first court had awarded a total of €40,000 in compensation, €35,000 of which as moral damages and €5,000 by way of pecuniary damages.

This first court did not consider other claims by the plaintiffs related to the violation of the right to the private and family right of the individual safeguarded under the Constitution and article 8 of the Convention, and no appeal was submitted and thus such claims were settled in accordance with the first court’s judgement.

The actual proceedings involved numerous witnesses, and particularly expert witnesses, which led to both courts in this case to agree and declare in favour of the plaintiffs that there was a violation of the right to life, which in the end would lead to monetary compensation for damages.

There was a violation of the right to life, which in the end would lead to monetary compensation for damages

To summarise, the final awards, of the €40,000 initially awarded as aforesaid, the Constitutional Court revoked the €5,000 awarded by way of pecuniary damages and reduced the €35,000 awarded by way of moral damages to €28,000, resulting in a reduction of €12,000 for a total of €28,000. Atrociously scandalous, some would hastily and wrongly inveigh.

On a review of the evidence submitted and the arguments thereon on appeal, unlike the first court, the Constitutional Court accepted the fifth and sixth claims by the plaintiffs, essentially relating to lucrum cessans (loss of earnings) and liquidated the same to the amount of €119,400, which added to the €28,000 as reformed, gives a total of €147,400 by way of damages, thus leading to a difference on appeal of €107,400 in favour of the plaintiffs.

This loss of earnings essentially related to the taking up of the trade of carpenter on a self-employed basis on which the Constitutional Court was convinced that it would have been the source of livelihood for the deceased and his family. Therefore, upon applying established practices as to the quantification of damages, the Constitutional Court gave the above result.

Interestingly and originally, while the Constitutional Court had revoked the first court’s €5,000 awarded by way of pecuniary damages relating to the family’s household needs − which in probability would have been taken care of by the deceased − the Constitutional Court considered this contribution by the deceased to his family by adjusting his prospective monthly income upwards for the purposes of quantifying damages related to loss of earnings.

In the end, it is of considerable legal interest to point out an obiter dictum observation (one having no effect on the actual judgment of the court) made by the Constitutional Court and relating to the appropriate actions to be raised for similar cases in the future. This is quite technical but, in the end, it could drastically affect the rights of damaged parties.

The Constitutional Court, apparently agreeing with the State Advocate that the action before it should have been raised in front of the ordinary courts according to ordinary civil law, remarked that in the past the constitutional courts were called upon because moral damages could not be granted to a plaintiff in an ordinary action under article 1045 of the Civil Code.

Article 1045 relates to damages arising in tort, ergo not from contractual breaches. Ordinary courts refer to the civil courts not acting under their constitutional jurisdiction (the Civil Court, First Hall, and the Constitutional Court on appeal), while ordinary law generally refers to law besides the Constitution and the Convention.

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The Constitutional Court observed that in the case at hand, one had a contractual breach at law and thus article 1045 was inapplicable to this case.

On the basis of more recent judgments by our courts, which departed from previous understandings, nothing barred our ordinary courts from granting moral damages for contractual breaches. This means that resorting to a court having constitutional jurisdiction to gain such damages is not necessary, and the Constitutional Court seems clear and unequivocal on this. The question to be raised is whether this might lead to the dismissal of future constitutional actions like the one at hand.

Edric Micallef Figallo is an associate at Azzopardi, Borg & Abela Advocates.

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