A few weeks ago, the First Hall of the Civil Court gave judgement in a case that involved a water sports accident that happened in Għadira Bay in 2010. In brief, the facts giving rise to this claim for damages were as follows:
Whilst on an outing the plaintiff, a leader with a language school, went to accompany the students on a ‘banana ride’ that was offered by a water sports operator. This ride involves an inflatable tube in the shape of a banana, with two stabilising tubes at the bottom, upon which individuals ride and which is then drawn by a speedboat. Before the ride, the operator asked them to sign a paper containing some rules that were to be observed during the ride.
All went well during the first ride, so much so that the students decided to go for a second time. The plaintiff observed that, during this second ride, the boat was driven much faster than before and it also made various sporadic manoeuvres. A few moments after the ride began, the inflatable ‘banana’ jolted and all the riders were thrown at sea with the plaintiff ending up smashing his face against the head of another student. As a result, he suffered from various fractures and lacerations and had to undergo a series of medical interventions. Consequently, the plaintiff instituted judicial proceedings for damages against the driver and the commercial operator.
On the basis of the evidence produced in Court, it transpired that the driver of the speed boat never received any training concerning the relevant applicable safety recommendations. The court appointed expert concluded that the permanent disability suffered by the plaintiff was of four percent.
In its deliberations, the Court analysed in detail one of the pleas raised by the defendants based on the doctrine of volenti non fit injuria. In essence, this holds that a person who knowingly agrees to put himself/herself in a situation that runs the risk of injury caused by the latter, cannot sue for any resulting injuries. In this case, the defendants made reference to a set of rules and observations that the operator had asked the participants to read and sign before the first ride. The court observed that merely being aware of the danger does not necessarily mean acceptance of the risk. Volenti non fit injuria can be successfully pleaded where the risk has been consented to voluntarily by the injured party.
The Court then moved on to consider the validity of ‘exemption clauses’, that is, clauses intended to exempt the service-provider from responsibility. Following a comparative analysis with the law in other jurisdictions, the Court observed, without any hesitation, that such clauses can never exempt the service-provider from responsibility when the circumstances in those exemptions are brought about by a breach of an essential duty on his/her part or where the circumstances have been occasioned by his/her negligence. Such agreements are considered as having an illicit consideration and therefore can never be given effect.
In considering the responsibility of the defendants, the Court held that in respect of the commercial operator, since there existed a contractual relationship, the plaintiff only needed to prove that the defendant had failed to honour the obligation it assumed. In which case, the burden of proof would then shift on to the operator to prove that the non-performance of the obligation was not attributable to him. On the other hand, in relation to the other defendant – the driver of the speed boat – the plaintiff had to prove that the accident occurred through his fault – something that the Court deemed as being sufficiently proven by the plaintiff, since it was the defendant’s dangerous driving that caused the accident.
After establishing the responsibility of both defendants, the court proceeded with the liquidation of the damages that were suffered by the plaintiff. Apart from the actual damages, being the loss of earnings during the period that he was unable to go to work and the out-of-pocket expenses, as is normally the case when there is a permanent disability, the Court also quantified the loss of future earnings. In its computation, the Court gave due consideration to the actual salary, future increases, the percentage disability and the retirement age. As such, it proceeded to liquidate damages that amounted to €34,730.72 and condemned the defendants jointly and severally to pay this amount to the plaintiff.
Joseph Calleja