Speech by Minister for Justice, Culture and Local Government Owen Bonnici given at the Pan-European
Distinguished participants, colleagues, ladies and gentlemen,
In the first place, as Minister for Justice and as a lawyer myself, it is a pleasure to be addressing this conference and on behalf of the Government of Malta, it is my pleasure to welcome you to our country and of course to this conference.
The subject of personal injury is very topical in the field of civil law and insurance legislation, especially due to the law of damages. The Government of Malta has given priority to the continuing examination of this area of the law and has also appointed tort law reform commissions from time to time. Due to the complexity and vast nature of this subject, I will limit myself to presenting a bird’s eye view of main aspects of civil law which directly affect personal injury victims, insurers and wrongdoers.
In the field of private law Malta is a civil law jurisdiction but it has undergone extensive common law experience mainly due to its historical ties.
Today the main game changers in the field of personal injury are Human Rights and European Law.
Articles 1031 and 1033 of the Civil Code serve as general clauses on liability and words such as ‘any damage’ used in those articles present us with Maltese Civil law which at face value grants compensation to anyone who has suffered from a tortuous act.
The principle of restitutio in integrum is used as a motivation by the Courts when granting compensation. Monetary compensation within the context of ‘heads of damages’ has the aim of reverting the injured party to the situation he or she was in before a tort occurred.
The recognition of a ‘head of damage’ either makes or breaks the claimant’s ability to recover damages under the Civil Law of Torts and when explicitly recognised at law, it may contribute to more uniformity in the legal system.
The notion of the French Code Civil to the effect that “Every act whatever of man that causes damage to another, obliges him by whose fault it occurred to repair it.” Is also fundamental to Maltese law.
Even if in drafting Articles 1031 and 1033 of the present Civil Code our famous 19th century legislator Sir Adriano Dingli, Crown Advocate and later Chief Justice, maintained the Code Napoleon as the main source of inspiration, through his notes one finds from where he sporadically imported certain Articles into the Maltese Civil Code.
Throughout page fifty-nine of his notes Dingli claims that he drafted Article 1045 on the basis of Austrian law. In a nutshell, one may conclude that from the Civil Code it appears that on one hand articles1031 and 1033 entitle anyone who has suffered a personal injury to claim all forms of damages in general and on the other hand Article 1045 seeks to specifically grant to the aggrieved party Damnum Emergens (actual losses) and Lucrum Cessans (future loss). From case law and academic writing, it has emerged that the heading of Damnum Emergens mainly covers:
Expenses which the victim may have been compelled to incur;
Actual medical expenses;
An actual increase in costs related to transportation and miscellaneous expenses; and
Loss of actual wages or other earnings.
Whilst Lucrum Cessans is defined as the loss of future income, it has been referred to as the bridge with English law on numerous occasions. The Multiplier system formula has gained stable recognition by Maltese Civil Courts even if nothing about it is mentioned explicitly within the law.
Through this formula, introduced to the Maltese jurisdiction in the pivotal Butler vs Heard 1969 judgment, the way our Courts decide to quantify damage under heads of damages present in Article 1045, offers a blend of the elements relevant to income earning capacity through a calculation system devised by common law which also takes into account, inter alia, the so-called “chances and changes of life.”
In this judgment, the Court of Appeal directly quoted English authors, such as Munkman, Kemp and Kemp and Mc Cormick and case law such as Boys v Chaplin.
Apart from this form of damages, in the Maltese jurisdiction a number of seminal cases which have been decided by the Civil Courts have granted non-pecuniary damages. Before the constitutional Courts, moral damages are granted in Malta in the same way they are granted in Strasbourg.
In the motor vehicle liability sector EU law is in close contact with the law of tort especially in the field of personal injury and this even though this field has been largely left up to national legislation.
Over the years the interplay between national and EU law and the principles on which it is based has achieved more prominence.
This current state of affairs which is present in every Member State has been catalysed by a streak of directives which today find their consolidation in the 2009 Codified Motor Insurance Directive.
The latter directive imposes compulsory motor insurance in all Member States, it sets minimum amounts which any motor insurance policy must cover in EU member states, which in cases of personal injury, is a minimum amount of cover of EUR 1 000 000 per victim or EUR 5 000 000 per claim which must compulsorily be covered.
Case law from the ECJ and also from the European Free Trade Association Court have interpreted aspects of the directive which through indirect effect impact domestic Courts in their judgments.
A mix of challenges including insurance fraud by misusing claims for personal injury loss are becoming always more frequent.
From the Insurance business side, the Malta Financial Services Authority protects policy holders and victims through prudential supervision of all the Insurance undertakings and Intermediaries which have been granted a licence to operate from the domestic territory.
In Malta, a state with a population of 432,089 inhabitants, the number of reported traffic accidents in the fourth quarter of 2017 reached 3,450, up by 1.4 per cent over the comparative period in 2016. The Northern Harbour district registered the most accidents with 1,398 cases or 40.5 per cent of all accidents. Government has reacted to this trend by introducing harsher fines, lower permissible alcohol limits and a penalty points system on driving licences.
Administrative records show that 1,589 persons were involved in a non-fatal accident at work in the last six months of 2017. The majority of these non-fatal accidents occurred in the manufacturing industry (17.3 per cent).
Another 243 or 15.3 per cent of the accidents occurred in the construction industry followed by transport and storage (212 or 13.3 per cent). These are the latest statistics as gathered by the National Statistics Office1 and reflect the most common occurrences where personal injuries are sustained.
One of the greatest challenges in the area of personal injury law in Malta as elsewhere is that one should balance out the need for effective compensation of the victim with the efforts of cost containment presented by insurance companies. The success in striking a balance is rooted within our Judiciary and must be guided by its sensible judgments, and with us as legislators.
On this concluding note I therefore wish to congratulate the Pan-European Organisation of Personal Injury Lawyers for the organisation of this seminar and wish you all an excellent and fruitful conference.