Paul Cilia vs Sammy Meilaq et

Court of Appeal

Judges

Chief Justice Vincent Degaetano

Anton Depasquale

Albert J. Magri

26 May 2006

The plaintiff was a Malta Drydocks worker who suffered a permanent disability resulting in loss of his hearing due to work he carried out. He alleged the defendant was responsible as a result of lack of prudence, diligence, care and observation of regulations. The plaintiff thus requested the Court to:

• declare the defendant responsible for permanent disability and damages;

• Liquidate damages and condemn the defendant to pay such.

The defendant claimed that plaintiff’s pleas:

• were prescribed by virtue of Article 2153 (Civil Code) since the plaintiff had suffered from the disability for more than 12 years;

• were unfounded.

First Hall, Civil Court – 3 October 2003

This Court considered:

• Article 2153: “Actions for damages not arising from a criminal offence are barred by the lapse of two years.”

• Article 2137 (Civil Code): “…the prescription of an action commences to run from the day on which such action can be exercised, irrespective of the state or condition of the person to whom the action is competent.”

It was necessary to determine the time from when the plaintiff could exercise the action for damages.

The plaintiff witnessed that before employment with the Drydocks he never experienced hearing problems. Problems started in 1972 when he worked in a noisy boiler-room. He worked there from 1967 when protective gear, such as earmuffs, was inexistent.

In 1979, the plaintiff underwent an operation due to excessive pain in his ears.

When in 1980, he found out the effects of his work environment, the plaintiff asked for a transfer. Two years passed before the transfer took place in 1982. Tests revealed that this transfer to an office left his condition stable.

The plaintiff never claimed an injury but hearing loss. In an accident, the day the injuries are sustained is known and the period to make the action is certain, i.e. from the day the injury occurred. However, with occupational diseases, such as hearing loss, the precise time that the damage was caused remains uncertain.

The damage was ascertained as having taken place between May 1980 and November 1981. The plaintiff left more than nine years before writing a judicial letter and filed the lawsuit in 1991. There was no interruption or recognition of responsibility (the plaintiff’s transfer did not amount to recognition). Since the plaintiff could exercise an action from November 1981 and within the two following years he did not interrupt prescription, the current action was prescribed.

The plaintiff disagreed with a legal expert’s stipulation regarding the time his hearing was affected. This opinion did not correspond with a medical expert’s claim that he could not determine when the noisy environment started to have detrimental effects on the plaintiff’s hearing: a date was fixed for a technical point which according to the medical expert could not be established.

The prescriptive period should have initiated from the date when the disability was crystallised and not from when it started to have its effects.

Although it was 1980 when the plaintiff was told definitively that his work environment caused the harm, the certificate revealed a mere recommendation that the plaintiff should not work in such noisy environments.

In 1990 a specialist issued a certificate stating that the plaintiff’s workplace contributed to his hearing loss and a 1991 certificate stated the percentage of noise-induced hearing loss to be about 10 per cent.

The Court felt that the action could be exercised from 1990 not 1980-1982, when the percentage disability was undetermined. Certificates issued prior to 1990 were mere recommendations. Since the lawsuit was filed in December 1991, the prescriptive period had not elapsed.

Since the defendant took two years to transfer the plaintiff and failed to provide the workers with basic safety equipment, this reflected liability. The Court condemned the defendant to pay Lm6,672 in damages for the permanent disability caused at the workplace.

Court of Appeal

The defendant appealed the above judgement, pleading its revocation.

If the action was deemed prescribed, the other pleas were unnecessary to examine. Hence the question was whether the action was prescribed or not.

The defendant claimed a two-year prescriptive period under Article 2153.

The plaintiff did not contest this. The issue was when the two years started to run:

• The time when the effects of the disability could first be traced; or

• The time the disability was crystallised and the degree of disability established.

The Court of Appeal made the following considerations:

a) Interpreting Article 2137, it seems that the action for damages must be exercised from the moment of establishment of damages suffered as a result of behaviour or omissions of third parties. The percentage disability was irrelevant since this could change in the course of proceedings.

b) The First Hall in fact ignored the expert’s stipulation of 10 per cent disability, raising it to 35 per cent. Hence, while the degree of disability depends on the evaluation of medical experts, the cause of such disability must, for the purposes of imputing responsibility, be linked to a particular fact on a particular date.

c) The plaintiff suffered from hearing problems from 1972. His condition was determined precisely at the end of the 1970s.

d) From the transfer in 1982, the plaintiff’s condition remained stable.

The plaintiff’s condition was effectively established in 1982 and it was from then that he had to make an action for damages. He did not have to wait till he retired.

The Court of Appeal revoked the First Hall’s judgement claiming it to be manifestly incorrect. The plaintiff’s action was time-barred by virtue of prescription under Article 2153 of the Civil Code.