This case concerned a road accident that occurred in Kalkara in July 2002 while plaintiff was riding his motorcycle and the defendant, his car. Plaintiff overtook the Land Rover being driven by defendant while the defendant was turning right into a side street. Defendant pleaded that before turning right into the side street, he used his indicator and checked that no vehicles were coming his way. He also pleaded that when he looked in his mirror, he only saw the sun. A witness who was riding a motorcycle behind plaintiff stated that he did not note the Land Rover indicating. The collision led to plaintiff suffering grave injuries to the extent that he was left permanently disabled.

Plaintiff requested the Court

•to declare that the accident was completely defendant’s fault and occurred as a result of defendant’s recklessness and non-observance of traffic regulations;

•To liquidate damages suffered by plaintiff, particularly his permanent disability;

•To condemn defendant to the payment of the same damages.

Defendant pleaded that plaintiff was to blame for the accident and hence, there were no damages to liquidate and no damages due.

Plaintiff stated that defendant turned right suddenly while he was overtaking him while defendant pleaded that while he was turning right into the side street, plaintiff collided with his Land Rover.

Defendant stated that before he was about to turn into the side street, he slowed down, put on his indicator and moved to the middle of the road. After checking that the coast was clear, he moved right into the street. It was at that point that he felt something hit his vehicle.

The Court considered all the evidence. It stated that the facts showed that the defendant merely turned right without indicating and crashed into the motorcycle. The Court affirmed that the defendant, as a driver not only had the obligation to indicate, but also had to ensure that his indication was understood by the person being indicated i.e. the plaintiff.

The Court quoted the judgement Debattista vs Caruana (1972) which referred to an author: “The driver’s duty is not confined to making signals; he must see, so far as he can, that they have been understood”. “It is not enough to sound the horn or give some other signal; it is also necessary that such warning be given at the proper time and place. The signal should be given so that it will serve its purpose”. This Court continued pronouncing that the mere use of the indicator is not enough. The driver may not shift the rule of the road in his favour.

The Court moved on to state that despite the use of the indicator or otherwise, the driver is burdened with the obligation of proper look out. Defendant did not even notice plaintiff on his motorcycle first behind him, then later on his right. Due to the size of his car and his mirrors being struck by the sun, defendant could not see properly and hence merely turned right without proper look-out. The Court stated that had the defendant been careful, he would definitely have seen plaintiff who had not merely appeared from nowhere but was actually riding his motorcycle by defendant’s side.

The Court stated that in cases of this nature, the Courts tend to give priority to the overtaking car/motorcycle. The reason for this is due to the fact that the probability, according to the Courts, is that the drivers turning right, cut across the paths of overtaking drivers without adequate warning. The Court further quoted Buchanan, ‘Liability in Motor Cases’: “In cases of collisions between an overtaking motorist and a right-turning motorist being overtaken, it is first of all necessary to have regard to the duties of the right-turning motorist……Early decisions tended to consider that all the turning motorist was required to do was to give a clear indication to following motorists of his intention. As regulations requiring a motorist to have a clear view through his rear-view mirror of following traffic became stricter, it became the duty of the driver to keep a look-out both in front and behind. He no longer complies with his duty unless, after giving his turning signal, he takes reasonable steps to satisfy himself that following traffic has both seen and reacted to his signal, which, it is submitted, boils down to taking reasonable steps to ensure that there will be no traffic in the process of overtaking him as he makes his turn.”

These principles were affirmed in a series of Maltese judgements including Clarke vs Aquilina (1977) and Duca vs Mifsud (1988).

The Court, however, still felt the need to check whether the plaintiff was to blame in any way.

To this effect, the Court quoted the judgement Police vs. Manwel Mallia, where the Court stated that overtaking can be analysed differently according to the locality. The Court considered that the Traffic Laws actually state “DO NOT OVERTAKE at or when approaching … a road junction”.

The Court felt that plaintiff could have avoided overtaking at that point and waited for a safer instance to do so. A motorist should be aware that a change in route of the vehicle being overtaken is a possibility. For these reasons, the Court felt that the plaintiff was partially to blame and apportioned liability as follows: 2/3 Defendant and 1/3 Plaintiff.

The Court liquidated damages and condemned defendant to pay plaintiff Lm11,016 taking into consideration his physical injuries, loss of earnings and the total loss of his motorcycle. This judgement may be the subject of an appeal.