Gone with the wind: Liability in cases of fortuitous events | Shaban Ben Taher

Shaban Ben Taher, Junior Associate at Laudi Advoates

As the Maltese islands were battered by Storm Harry, it was inevitable that property owners would suffer damage as a consequence of the severe weather conditions. Whilst waves spilled onto the Marsaskala promenade, social media became flooded with footage showing shattered glass, dislodged apertures, and outdoor furniture being blown away.

Generally, damage suffered may be claimed before the courts from the person legally responsible for having caused it. Difficulties arise, however, where no identifiable tortfeasor exists, or where the damage is attributable to natural forces rather than to human conduct.

In this regard, Article 1029 of the Civil Code provides as follows: “Any damage which is produced by a fortuitous event, or in consequence 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.”

Accordingly, where a person is accused of having caused damage to another, one of the defences which may be raised is that the damage resulted from a fortuitous event or an irresistible force. Whilst the law does not provide an express definition of what constitutes force majeure, its constituent elements have been clarified through the jurisprudence of the Maltese courts.

In a case dating back to 1986 bearing the name Cini vs Mifsud Bonnici in his capacity as the chairperson of Enemalta, the plaintiff sued Malta’s electricity provider after strong winds knocked down an electricity pole that electrocuted his cattle. Although the government entity sought to rely on force majeure as a defence, this plea was rejected by the courts.

The court-appointed experts reported that the electricity pole lacked a proper earthing system and that the protective fuse had failed to trip and interrupt the circuit. These deficiencies constituted contributory fault on the part of the defendant. Consequently, the courts held that the damage could not be attributed exclusively to a fortuitous event.

The judgment confirms that, for a force majeure defence to succeed under Maltese tort law, the damage must arise solely from the natural event itself, without any contributory negligence, omission, or technical failure attributable to the defendant.

On the other hand, in a case from the same year titled Mizzi vs Carbone, damage caused to a vehicle by a fallen pole, likewise attributable to strong winds, was classified as an act of God. This conclusion was reached on the basis that no fault could be attributed to the defendant, since the installation and maintenance of the pole were found to be in full compliance with the applicable technical standards. In the absence of any contributory negligence, the damage was held to have resulted exclusively from the natural event.

A further requisite for an event to be classified as fortuitous is that its consequences must be of an inevitable nature. This principle was reaffirmed by the Court of Appeal in Middlesea Insurance plc vs Waldorf Auto Services Co. Ltd. et, decided on 17 November 2017.

In that case, the plaintiffs instituted proceedings in their capacity as insurers, following damage sustained by a motor vehicle insured with them, which was subsequently declared to be “beyond economical repair”. At the time the damage occurred, the vehicle was in the possession of the defendants. The loss was caused when the defendants’ premises were flooded during severe weather conditions. The related survey report stated that the water level had risen to “above seat level and as high as the heater control level”.

Despite the proof brought forward by the defendant, the Court was not satisfied that said party had taken all precautionary actions in avoidance of the damage. Amongst the points considered was that the flood had occurred during the showroom’s opening hours, and that the car could have been moved to a higher story of the defendant’s multi-tiered premises.

The information contained in this article is provided for general informational purposes only and does not constitute legal advice. Because every situation is unique, readers should seek independent advice from a warranted lawyer regarding their particular circumstances.