A judgment delivered by the First Hall of the Civil Court concerning the case Paul Formosa et v. Brigadier Forzi Armati ta’ Malta et. has confirmed that employees would be diminishing their chances of success in obtaining compensation if they voluntarily accept tasks which they know to be potentially dangerous.  

The plaintiff had formed part of the AFM since 1985 and was stationed at Manoel Island as a diver with the Bomb Disposal Unit. On 22 April 2002, he was instructed by his superiors to transport a number of visiting French navy sailors to Wied iż-Żurrieq, using an AFM truck. During the journey, the vehicle was involved in a traffic accident, having skidded and collided with a commercial van. The plaintiff, who was at the wheel, was rushed to hospital complaining of injuries to his leg and abdomen. He was ultimately operated upon, and having subsequently suffered an intestinal infection, ended up with considerable scarring in his abdominal area. Medical experts concluded that the permanent disability incurred stood at 20%.

The Court heard how the AFM truck in question had been last serviced eleven days prior to the incident, and that the plaintiff was licensed and properly trained to drive it. Furthermore, it noted how following the incident, the plaintiff had been found solely liable by another court to pay for the damage sustained by the van involved in the collision. The Court also took note of the defendant’s plea of casus (accident) and consequent lack of liability for the injuries sustained; while the plaintiff was insisting that the harm suffered was a direct result of his superiors’ negligence in ensuring a safe work environment. In particular, the applicant was basing his arguments on the poor state of the truck’s tyres, which he claimed were not safe for use on wet roads. Secondly, the plaintiff also instituted action against the Chief Medical Officer and his staff, whom he claimed to have exhibited lack of skill in their profession, and were thus also partly liable for the permanent damage sustained.

In determining liability, the Court further noted that the plaintiff’s claims were not only tortuous in nature, but extended to the notion of contractual breach. Consequently, it proceeded to consider the case against the two defendants separately. With respect to the Commander of the Armed Forces, the Court reiterated the well-established doctrinal position that an employer has a duty to provide and maintain a safe work environment, including through the provision of adequate training. It is the employer’s responsibility to prove that a workplace accident took place despite his best efforts. However, the Court further noted that this is not a strict form of liability, and that the employee has a duty to cooperate with his superiors and look out for his own safety and wellbeing. In particular, an employee who is well-acquainted with the potential hazards of his job must actively seek to avoid situations which might expose him to danger. Even in the ambit of disciplined forces, subservience does not mean that one has to accept tasks which might lead to harm, especially with respect to the job in question which was not of a military nature.

As a result, by voluntarily accepting a job while being well-aware of the risk involved, the plaintiff was held to have contributed to the accident. Furthermore, as the Latin maxim states: volenti non fit iniuria (whoever willingly puts oneself in danger may not later claim compensation). The Court agreed with the plaintiff’s assessment of the tyres’ state, yet stated that for that very reason, he should have realised that the vehicle could not be driven safely. Alternatively, he was in the least expected to drive slowly and more carefully when it started raining (a witness testified that the truck was being driven at 25kmh at the time of the accident). Consequently, the applicant’s claims merely exposed his own carelessness, having failed to follow the procedures put in place by his employer and ascertaining the safety of the vehicle prior to the journey.

Resultantly, the Court found that it could not accept either the claim against the first defendant, as well as those made vis-à-vis the Chief Medical Officer, these being consequential to the former.

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