Every trip in a car, as short as it may be, imposes upon the driver a number of legal obligations, perhaps stricter than one would first assume.

Certainly, everyone is aware of the duty to keep one’s car in a state of roadworthiness and most have a good idea of the harsh legal consequences of driving under the influence of alcohol beyond the threshold provided by Maltese law (hint: it sometimes takes just one drink to reach the limit).

But how many do really comprehend the true facet of the obligation to ‘keep a proper lookout’?

The judgment of ‘Stephen Galli v Nathalie Barbara et’, delivered by the Civil Court, First Hall on December 16 (252/LM), presented a studious assessment of this principle at law.

The case was a typical action for damages filed by the plaintiff following a traffic accident. The respondent had driven out of a driveway of a commercial outlet into a main road, when suddenly, there was an impact with a motorcyclist (the plaintiff), who was driving down that very same main road.

The motorcyclist suffered permanent disability, later quantified at 27 per cent, leading him to seek damages against the driver with whom the impact occurred and the company that insured her.

There were a number of matters tackled by the court in this judgment, but none stood out more than the question: was the respondent maintaining a proper lookout when the accident occurred?

It is generally stated (article 1031 of the Civil Code) that every person shall be liable for the damage which occurs through his fault. According to article 1032 of the Civil Code, a person shall be deemed to be in fault if, in his or her own acts, he or she does not use the prudence, diligence and attention of a bonus paterfamilias.

The term ‘bonus paterfamilias’ does not carry a precise legal definition but it has traditionally meant something equivalent to ‘a good father of the family’ – a diligent guardian of the rights and interests of his or her ward. In the world of road-accident tort law, ‘bonus paterfamilias’ may, in fact, be understood through the concept of ‘proper lookout’.

One must understand that road vehicles are in many cases held to a high standard because of the great potential for damage a negligently-operated vehicle can cause

From the time we were first taught to drive, we have always known that we should keep our eyes on the road. Simply put, proper lookout is the due degree of attention expected of the driver of a vehicle in avoiding collisions with other vehicles or pedestrians.

It binds every car-driver to maintain a proper lookout by all available means which are appropriate to the prevailing circumstances and conditions in the road, in order to make a full appraisal of the situation and of the risk of collision.

It is a duty to fellow drivers to expect the unexpected and to be ready to act upon it in time.

The court stated that should a driver not see what one should have reasonably seen, it necessarily meant that he was not keeping a proper lookout, since every car driver has a duty to see what is in plain view.

It quoted past judgments and smashed what is often seen as a common misconception, reiterating that keeping a proper lookout means more than looking straight ahead.

This duty at law includes maintaining complete awareness of what is happening in one’s immediate vicinity. A motorist shall have a view of the whole road, from side to side, and in the case of a road passing through a built-up area, of the pavements on the side of the road as well. It is undeniable that traffic accidents are often a result of split-second distractions, often coupled by the fact that traffic contingencies may be sudden and without warning. For there to be negligent driving, there need not be specific violations of precise traffic rules but it is sufficient for the driver not to have exercised ordinary prudence.

The law is harsh and unforgivable in this respect, and understandably so.

A driver must thus drive diligently in a wider sense, taking account of the safety of other road users and pedestrians.  This means that it is not sufficient for a driver to look straight in front of him but he must also have an awareness of his immediate vicinity, adjusting his driving according to the state of traffic, the state of the road, light and other factors, all of which enter into the wide significance of ‘proper lookout’.

Some may argue that the vigilance required from a car driver is somewhat onerous – and granted, it really is. However, one must understand that road vehicles are in many cases held to a high standard because of the great potential for damage a negligently-operated vehicle can cause. At the risk of sounding cliché, a car is a dangerous weapon and one must tread carefully.

Going back to the case at hand, the court stated that whether or not the respondent had maintained a proper lookout is then something to be proven on a level of balance of probabilities. Only that way could the court be satisfied that the facts being alleged had been sufficiently proven. The standard of ‘balance on probabilities’ denotes that the contested facts are proved to be more probable than their non-existence. If the possibility of facts being true is equal to it being false, the burden is held not to have been discharged. Thus, the case fails actore non probante reus absolvitor (meaning: when the plaintiff does not prove his case, the defendant is absolved.)

The court considered that the respondent had to be more careful when exiting the driveway on to the main road, particularly since she had wanted to cross two carriageways. Therefore, it concluded that indeed, she was responsible for the accident and the motorcyclist’s injuries and, in turn, the company that insured her had to pay for the damages incurred.

After calculating the damages due, it ordered the insurance company to pay the plaintiff the sum of €22,244.41.

Carlos Bugeja is senior associate at Azzopardi, Borg & Abela Advocates.