Who is responsible for a New Year’s fight?


A New Year’s Eve brawl cost an accused the sum of € 109,609.60, including legal costs. The dynamics of the case lead to tort proceedings. Lawsuits in tort can be found in Articles 1030 et seq. Of the Civil Code, Chapter 16 of the Laws of Malta.

Essentially, the law says that everyone is responsible for damage that occurs through their fault. In other words, the concept of tort refers to a legal liability for the person who commits a fault against a plaintiff who proves to have suffered damages as a result of such tort.

The legal concept of tort (or misdemeanor) dates back to Roman law. This concept allowed people to claim damages, when such damages resulted from an event having no contractual basis – theft, assault or other criminal actions (having no contractual history) and Motor vehicle accidents are generally the typical cases that figure in such lawsuits. .

Civil liability, having a contractual basis, is to be distinguished from such events, because in tort, no contractual basis, between the perpetrator (the guy who committed the fault) and the victim, would not have existed. On the other hand, contractual liability arises when an agreement between the parties ensues and one or the other of the parties fails to comply. a priori provisions.

The judgment bearing the names “Ellul Sullivan v Vella”, rendered by the First Chamber of Civil Court on September 29, dealt with this classic tort scenario involving a nasty New Year’s brawl.

The plaintiff, Ellul Sullivan, argued that he was maliciously assaulted by the respondent Vella. Vella replied that Ellul Sullivan was to blame for the brawl incident.

In such cases, it is normal for the courts to be faced with conflicting evidence and testimony about the events. In fact, and in this case, the tribunal dealt with a different and subjective interpretation of the events.

In short, the Applicant testified that the Respondent brutally assaulted him in the face for no reason (għal xejn b’xejn), to the point that several teeth were broken. Vella felt that the plaintiff was drunk and had caused a fight, as he (the defendant) had to defend himself by also hitting the plaintiff – according to the defendant – in an attempt to stop the fight.

Our courts have repeatedly commented on the principles that courts must follow in such cases. Even made this judgment; citing two hierarchical rules – the first being that courts must essentially attempt to identify the most credible versions, and if this exercise proves futile or too difficult to determine the real facts, it must apply the maxim actante non-probative, reus absolvitor – in the absence of proof by the plaintiff, the defendant is absolved. Ultimately, the court also noted that in such lawsuits, and when it comes to evidence, quality takes precedence over quantity.

The court tested the credibility of both parties. He noted that the complainant’s testimony had changed slightly over the years (the incident having occurred in 2012). On the other hand, there were discrepancies in the respondent’s testimony – the court proceeded to compare the testimony he had made public in previous criminal proceedings and the respondent’s testimony in the lawsuit. civil. Therefore, the court considered the version submitted by Ellul Sullivan to be honest. At the same time, the criminal proceedings which followed such events found Vella guilty of causing grievous bodily harm.

In such costumes, and when it comes to evidence, quality trumps quantity

The second part of this judgment deals with the quantification of damages. In tort, fault must first be established; if this is the case, the examination of the pecuniary compensation would follow, if the damage incurred is satisfactorily proven. The damage can be classified in two parts –

immediate and real damage / expense (damnum emergence) and future losses (lucrum cessans). The former are practically easy to quantify, as these types of damage are just the immediate expenses that the victim had to incur, for example, medical bills. The last – the lucrum cessans – is generally calculated on a formula that our courts had established by case law.

Although the expert appointed by the court, the court determined that the plaintiff had suffered damage to the teeth. In this case, the plaintiff also claimed psychological (and not moral) damages – his hired psychiatrist attributed to him a permanent psychological incapacity of 30%. In contrast, the assigned psychologist attributed psychological harm of 24 percent.

When it comes to court-appointed experts, courts are never bound by their conclusions, that is, they can draw different conclusions if – and only if – the courts seriously believe that their appointed expert did not treat the merits critically. In addition to the physical damage, the court found that the plaintiff was also suffering from psychological damage. The first room proceeded to the liquidation of the damages – 11,270 € were allocated in total as damnum emerges, which included medical and legal costs.

Regarding the quantification of lucrum cessans (loss of future income), the court awards the sum of € 102,009.60. By the word of the law, lucrum cessans damages are defined as the loss of future earnings resulting from any permanent disability, total or partial, which the tort may have caused.

The court arrived at this amount by considering the claimant’s disability percentage, the number of years between the incident and pensionable age (called the multiplier), the claimant’s earnings, and the standard deduction. After referring to previous case law, the court ruled that it would ignore the 24 percent psychological disability as established by the medical expert, but reduced it to 18 percent. The reasoning of the court was that a few months after the incident, the plaintiff was engaged in a gainful activity for a gross amount of € 14,400.

As for the multiplier, the court also reduced it – from 49 to 40. The reduction was due to “the uncertainties of life and the possibility that the victim will not reach retirement age”.

When the court came to consider earnings, it took into account the gross salary and not the net salary of the victim. Finally, with respect to the standard deduction, as opposed to the usual reduction of 20 percent, the court reduced it to only eight percent, since any delay in the case was not attributable to either party. .

The total amount of damages awarded amounts to € 109,609.60. This judgment has not yet been appealed.

Mary Rose Micallef is an associate at Azzopardi, Borg and Associates Advocates.

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