The First Hall of the Civil Court held in its judgement of 4 July 2018, that the driver who hit a pedestrian should still have used better judgement, even though she was blinded by the sun when the accident took place. The case was decided by Mr Justice Lawrence Mintoff in Gracie Cascun -v- Kristi Marie Agius and Untours Insurance Agency Limited.
The plaintiff, Gracie Cascun, had filed a sworn application explaining that in June 2015, she was hit by a car driven by Kristi Marie Agius, and asked the court to declare that she was responsible for the accident and to pay damages.
The defendant, Agius, defended the case by stating she was not to blame for the accident.
Mr Justice Mintoff analysed the evidence brought before the court, where the doctors explained that when Cascun fell on her back, she was unable to walk and was taken to hospital. She was soon released and was given pain killers and appointments at Out Patients Department. The Consultant wrote in his report that there was no need of any surgery, but she did suffer a permanent disability of 4%.
Cascun then presented an affidavit, where she explained that she was walking home and she was hit by a car when she was going on the pavement. She complained that she still felt pain in her back and she was unable to carry out certain chores at home.
The defendant, Agius, also testified and told the court that on the day it was sunny and it affected her vision when she was driving in that particular road. She realised that she had hit someone and went out of the car to see if she was fine, but she was met with obscenities. She also noted that where the accident took place, there was no zebra crossing.
The Court-appointed medical expert confirmed that Cascun suffered from frequent pain and established that the permanent disability was in fact 5%.
The Court in its judgement, then examined the legal points, starting with whether the defendant was responsible for the accident. A driver is bound by a number of general principles, amongst which each driver must regulate his driving according to the circumstances around him and must be attentive of what is taking place around him. Mr Justice Mintoff pointed out that in this particular case the driver did not use the prudence required because of the sun in her eyes at the time of the accident to assure herself that there was no obstacle on her part. This followed what a previous judgement had said in Fogg Insurance Agencies Limited -v- Tal-Magħtab Construction Company Limited. In that judgment, the Court held that according to Article 1031 of the Civil Court, every person is responsible for damages caused. If a person does not use the prudence, diligence and attention of a “bonus paterfamilias”, then he will be responsible for the damages caused. When driving one must adjust according to the conditions of the road, including rain, and the state of the road. In this case, Agius was responsible for the accident.
As to the liquidation of damages, this is regulated by Article 1045(1) of the Code of Organisation and Civil Procedure. There are two types of compensation, material damages and loss of earnings.
The plaintiff presented the court with a number of receipts for medical expenses and these are the material damages.
With regard to loss of earnings, the court-appointed medical expert indicated that the permanent disability was of 5% and preferred to rest on this, rather than on the ex parte medical team that indicated 4%. The Court held that times have moved from the landmark judgement Michael Butler -v- Peter Heard of 22 December 1967, and courts should be more flexible to adopting the criteria of establishing the damages. In Malcolm Cumbo -v- Malta Freeport Terminals Limited of 30 June 2016, the compensation should match the victim’s expected working life. In this case the plaintiff is a housewife, but she should also be compensated for loss of earnings. This was also established in Mary Farrugia -v- Agnes Borg of 24 October 2016, delivered by the First Hall of the Civil Courts, where the court highlighted that a housewife still had an economic value, compared to other workers. Mr Justice Mintoff established the minimum wage of 2015, as the yardstick. The plaintiff had also reached the pensionable age, but pensioners still have a right to work and therefore, the multiplier should be five years.
From the calculations made the court came to the sum of €2,205.59 in damages and ordered the defendants to pay her this amount.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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