Transport Malta, as an extension of the Maltese state, could not be sued in a £1 million lawsuit filed before the Scottish courts by a tourist who suffered grievous head injuries when riding on an open-top bus which crashed into overhanging foliage on Valletta Road, Żurrieq. 

Two other tourists were killed, six others critically injured and 44 other passengers hospitalised when the sightseeing bus hit low-lying tree branches on April 9, 2018. 

Among those grievously injured was then 44-year-old Scot, Simon Morrison, who had just landed on a family trip to Malta the previous day. 

Tragedy struck when Morrison and his family decided to take a tour on an open-topped double-decker bus operated by City Sightseeing Malta Ltd, a family-run business.

The vehicle was going at around 60 miles per hour when it smashed into some low lying tree branches, one of which tore through the open deck where Morrison was seated. 

Four directors of the bus tour company, together with the driver involved in that fatal crash, were criminally prosecuted before a Magistrates’ Court which, in March last year, concluded that it was only the driver who had a case to answer. 

The court concluded that none of the four company officials were involved in the circumstances leading up to the fatal incident, their only involvement being when they employed the driver. 

But the court had found no evidence indicating negligence on their part such as to render them answerable to charges of involuntary homicide and grievous or even slight injuries suffered by the passengers. 

While criminal proceedings continue against the driver in Malta, one of the survivors of the crash filed a lawsuit before the Scottish courts against the bus company and its insurers, Mapfre Middlesea.

The insurers convened Transport Malta into the suit, arguing that that entity had entered into an implied contract when granting a licence to the tour bus operator and was responsible for ensuring that the road was fit for purpose. 

Mapfre argued that Transport Malta had a duty to ensure the safety, maintenance and security of distributor roads, such as Valletta Road, and that duty included making sure that trees did not present a danger to road users. 

Transport Malta countered that, as an entity delegated authority by the state, it exercised sovereign authority and performed its functions when issuing licences in terms of the Passenger Transport Services Regulations 2009. 

Therefore as a state entity, Transport Malta was entitled to sovereign immunity in terms of the State Immunity Act of 1978. 

Since the date of the incident, those duties had been transferred to Infrastructure Malta. 

Both former chairman and CEO of Transport Malta as well as former minister Ian Borg, then responsible for transport, in their affidavits adopted the view that when performing its functions Transport Malta was exercising sovereign authority on behalf of the government. 

Not only was Transport Malta an extension of the state, but the duty to maintain roads was a governmental act, public in nature and not one that was performed by a private entity. 

That argument was upheld by the first court in Scotland, a Court of Session which, in December last year, upheld the authority’s view and rejected Mapfre’s request to have Transport Malta convened in the proceedings. 

Mapfre appealed that decision by means of a reclaiming motion. 

The first division of the Inner House, Court of Session, presided over by Lord President Carloway, confirmed the decision of the first court, rejecting the appeal by Mapfre Middlesea Insurance plc.

The principle of state immunity from being sued in a foreign jurisdiction stemmed from the rationale that one state ought not to judge the acts of another state, observed the court. 

The State Immunity Act of 1978 distinguished between the state itself and “a separate entity” that was immune from jurisdiction of the UK courts only in respect of acts done “in the exercise of sovereign authority,” and the circumstances where such that a state “would have been so immune.”

When assessing such a claim, the court was to consider the whole context so as to determine whether the claim concerned a trading or commercial activity or one that was governmental or sovereign in nature. 

Applying a test laid down in Kuwait Airways Corp vs Iraqi Airways Co the court held that maintenance of distributor roads throughout Malta was a public duty and a governmental act. 

The fact that Transport Malta “contracted private entities to carry out the maintenance work is not relevant to an analysis of the third parties’ [Transport Malta] duties, as delegated to them by the state,” said the court. 

“What is relevant, and was confirmed by unchallenged affidavit evidence… is that [Transport Malta] viewed themselves as carrying out the Maltese state’s obligation to maintain major public roads.” 

The court thus refused Mapfre’s claim and confirmed Transport Malta’s plea of no jurisdiction in Morrison’s case. 

Lawyers Edward Gatt and Mark Vassallo represented Transport Malta.