On 27 November 2017, in the case Citadel Insurance plc, as subrogated in the rights of their insured Teshai Wayne, vs. U.C.I.M. Co. Limited, the Court of Magistrates (Malta), presided over by Magistrate Dr. Francesco Depasquale, discussed the crucial principle of fortuitous events in insurance law. The case under examination dealt with three fundamental factors, these being; the onus of proof, contributory negligence, as well as the fundamental element of prevention.

U.C.I.M. Co. Limited (the “Defendant”), a company situated in Valley Road, Msida, owns a garage specifically equipped to provide servicing, and repairs to vehicles. During the course of the hearing in question it resulted that on the 2 September 2012 Teshai Wayne (the “Plaintiff”) took his car to be serviced at the Defendants’ garage, where it was to be kept until servicing was complete.

On the 3 September 2012, whilst the Plaintiff’s car was under the care of the Defendant company, a storm broke out throughout the islands of Malta and Gozo. The severity of such storm inevitably resulted in the flooding of certain areas around the Maltese islands. Consequently, the gravity of the storm also affected the Defendant company’s garage, causing damages to the Plaintiff’s car.

The main issue at hand was whether the Defendant would be liable for damages caused whilst the car was in his possession, or whether the Plaintiff, although not in possession of the car when damages had transpired, should to be accountable, solely due to the fact that the damages caused were the result of what the Defendants claimed to be a fortuitous event.

The Defendant company brought forward the latter defense and held that since the damages caused to the plaintiffs vehicle essentially resulted out of a fortuitous event, the responsibility for such damages should be borne by the owner of the property damaged. In support of their argument they made reference to Article 1029 of the Civil Code (Chapter 16 of the Laws of Malta), which states that:

“Any damage which is produced by a fortuitous event, or inconsequence of an irresistible force, shall, in the absence of an express provision of the law to the contrary, be borne by the party on whose person or property such damage occurs.”

Here, the Court of Magistrates made reference to the 2002 judgment between “Anthony Pirotta vs. Direttur tad-Dipartiment tal-Muzewijiet” which examined in detail the concept of fortuitous events. In this case the court concluded that in order for an event to be classified as fortuitous, one must prove that such event could neither be prevented nor avoided. Hence, the onus of proof lies on the party against whom the action is being brought, to prove that they took all necessary precautions to avoid the extent of damages caused by the event. 

Furthermore, in Kurunell Hugh v. Negte Busuttil, the court reinstated the above and went on to state that for an event to be classified as fortuitous it is essential to prove that prevention was not possible and that the event was thus inevitable. The court went on to state that the test against which one can determine whether or not such occurrence could have been prevented should be seen in the light of the diligence that would be expected of a bonus paterfamilias.

The above provides a clear indication that in cases dealing with fortuitous events it is of paramount importance that the person against whom the claim for damages is being brought is able to prove that there was no contributory negligence on their part and that they did all they could to prevent the situation from happening.

Reference was made to the judgment Middlesea Insurance plc et vs. Waldorf Auto Services Co. Limited et, which was essentially a similar and related judgment brought by a third party whose car was also damaged on the 3rd September 2012, as a result of flooding caused within the defendants garage. During the course of the hearing architect Philip Grech, was appointed to examine the area and provide support in determining whether all necessary measures were taken to prevent damages. The court expert ultimately confirmed that the amount of rain was in fact exceptional, and that the garages of the defendant were in fact properly equipped to prevent flooding from occurring.

In light of the above considerations, the Court of Magistrates stated that although architect Philip Grech proved that structurally it appeared as though all necessary measures were taken to prevent flooding, one cannot deviate from the fact that the onus of proof lies on the Defendant himself, who, in this case, failed to prove that he did everything in his power to prevent damages from occurring. It was thus concluded that although experts may bring forward proof, the defendant would still bear the ultimate burden of the onus of proof.

In conclusion, the court held that it appeared as though the vehicle could have been removed from the garage before the flooding began, especially in light of the fact that it had been raining all day. For this reason the court concluded that flooding was in fact a foreseeable event and therefore could not be classified as fortuitous. The court accordingly upheld the Plaintiff's request for compensation by the Defendant company, for damages which resulted in the amount of €6,195.  

Dr.Bettina Gatt is a Trainee Advocate at Ganado Advocates.