Construction company directors held responsible for fatal 2011 wall collapse

Court calls for better regulation of the construction sector, noting that fragmented laws undermine the principle of legal certainty espoused by the European Court of Justice

Magistrate Donatella Frendo Dimech  has called for less fragmented approach to regulation of the construction industry
Magistrate Donatella Frendo Dimech has called for less fragmented approach to regulation of the construction industry

A court has expressed serious concerns at the lack of regulation of the construction industry as it found two company directors guilty of the involuntary homicide of a tourist who died in Swieqi in 2011.

The victim, Quentin Antoine Marie Michel, was killed when a wall collapsed on top of him.

Michel had rented out a property with some friends, the court was told. As he posed for a photograph, pretending to climb a wall surrounding a staircase in the property, the wall had collapsed on top of him, crushing his chest and killing him.

“Quentin was on the stairs and he was trying to get hold of the wall. There was no time as far as I’m concerned in which Quentin was trying to scale the wall… his foot on the stairs,” one of his friends had testified.

Another friend had captured the precise moment of the wall’s collapse on camera. “The incident happened right at the time I took the photo and that’s why in the photo the wall was bending because at the time I took the photo… I saw it through my camera… I just saw the wall bending and then everything went super-fast. It collapsed.”

Buz-Dov Developments directors James Mifsud and Gordon Farrugia and the owners of the property Antoine Attard and Marlene Attard were subsequently charged with the involuntary homicide of Quentin Michel.

Mifsud was also charged with recidivism. Antoine Attard and Marlene Attard were separately charged with running a tourist establishment without a licence.

Court-appointed experts confirmed that there was only a “smear” of cement holding the bricks together and that the semi-basement wall was not anchored to the rock behind it. The wall was also heavily cracked.

A “gratuitous danger” was created when the wall had been built, four years before the accident, by contractors Mifsud and Farrugia without measures being taken to ascertain that it was structurally sound, said the court, before turning to latter-day dangers.

“Unfortunately, it has become a daily occurrence to see foreign individuals working as builders on construction sites! It is unacceptable to allow the situation whereby a person who had not once in their life touched the building industry, overnight ends up working on a construction site at a risk to themselves and third parties. Who is ensuring that the employed builders are licenced for this work? Who is ensuring that the contractors are only employing licenced persons? Who is ensuring that the contractors are properly taught their trade in a way that they can truly direct their builders… in observance with the laws in force in our country?”

The court said it was “unexplainable and contrary to logic and good sense” that while those entrusted with health, money and legal rights must study for years and pass exams and obtain warrants, as well as being regulated and disciplined by governing councils, builders and contractors continued to operate without regulation or scrutiny as to their competence.

The court opined that an authority should be created to regulate this sector “with the seriousness, diligence and professionalism expected from a European country which had made giant steps in innovative sectors and led the way for other countries to follow”.

The court noted this was all the more important given the construction industry was always a pillar of the Maltese economy.

The failure to regulate the sector or organise it in a structural way undermined those contractors and builders who obey the law.

Instead of a holistic legislative framework, the sector relied on fragmented laws and regulations, which undermined the principle of legal certainty espoused by the European Court of Justice.

The court pointed out that the maximum punishment for the crimes with which the defendants were accused was a maximum of 4 years in prison and a fine, not exceeding €11,646, comparing this to the maximum €23,000 fine for misuse of electronic communication equipment.

The magistrate also highlighted the fact that the maximum punishment for the crime of involuntary homicide exactly the same as that for causing a person to fear violence would be used against them.

“The court feels it is its duty to appeal to our nation’s institutions to revise the maximum pecuniary punishment to reflect the gravity of a crime where, through inattention and negligence a human life is lost.”

Although the deceased’s behaviour had precipitated the wall’s collapse, the fact remained that it had not been built correctly and had collapsed when minimal force was applied to it.

There was an “acute lack of diligence and care” in the way that the contractors Mifsud and Farrugia had built the unsanctioned wall, said the court.

MEPA had no oversight on how structures were built, it said, and responsibility for this had to be borne solely by the person in charge of ensuring it was up to standard.

The Attards had engaged construction professionals recommended to them by their architects, observed the court, but this could never exonerate third parties from the obligations and responsibilities.

Mifsud and Farrugia “did not bring the slightest piece of evidence” to show that the crime took place without their knowledge or that they had exercised diligence to prevent it.

The first charge, of involuntary homicide, had been “amply proven” with regards to James Mifsud and Gordon Farrugia who were held personally and vicariously responsible for the accident, said Magistrate Donatella Frendo Dimech.

The Attards were cleared of operating a holiday flat without a licence as originally charged, because this charge was not insisted upon by the Attorney General.

Although Mifsud and Farrugia were not first time offenders, the court observed, they were not a threat to society and did not merit incarceration, not least due to the contributory negligence on the part of the victim.

Mifsud was cleared of recidivism, but together with Farrugia found guilty of involuntary homicide and sentenced to two years imprisonment, suspended for four years. They were also ordered to pay €2,424 in costs.

Inspector Trevor Micallef prosecuted.

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