By Dr Celine Cuschieri Debono – Associate
In the law of damages, there is the concept of restitutio in integrum. This means that if it is proven that the action or omission of another has resulted in the damage you have suffered, such person is liable to put you in the same position you were in before the damaging event occured.
This rule can be applied to all areas of life. For example, if the pipes of the neighbouring maisonette are leaking onto your property, the owner of the neighbouring maisonette is bound to fix all leakages and any damage that your property has suffered as a consequence of such leakage. Of course, it must be proven that his or her property was the source of the leakage and consequential damage suffered. Indeed, for one to successfully claim damages, there needs to be a link of causation between the act or omission of the other party and the damage suffered by yourself.
To conjure a picture of what a link of causation means, let us take the example of a road incident whereby ‘X’ has been run over by a car driven by ‘Y’. In this example, ‘X’ only suffers slight injuries. ‘X’ is taken to hospital for observation and despite him telling the hospital staff that he has a penicillin allergy, they still proceed to administer penicillin. He has a severe allergic reaction and dies. Is ‘Y’ responsible for ‘X’’s death? No, because here we have what is termed as a ‘break in the link of causation’. This means that while it is true that ‘Y’ ran over ‘X’, ‘X’ only suffered slight injuries from that incident. It was the negligence of the hospital staff that led to his demise. Furthermore, it was not forseeable by ‘Y’ that his actions may lead to the hospital staff’s negligence and the consequential death of ‘X’. The link between cause and effect is thus severed. In such example, the heirs of ‘X’ would have a right of action for damages against the hospital staff.
Continuing to take the hypothetical demise of ‘X’ as our working example, in such scenario, for there to be restitutio in integrum, the heirs of ‘X’ must be compensated. To calculate damages, our Courts take into account the annual salary of the person who suffered the damage (‘X’), the years between ‘X’’s age at the time of the incident and pensionable age (65), and the percentage of disability. A deduction of 20% was traditionally deducted but this percentage nowadays varies. In this example, the percentage of disability would be 100% since the damage caused was death. Therefore, one can only have a 100% rate of disability if the person suffering the damage has died as a result of the damage.
Disability can be both physical and psychological. In the event of both physical and psychological disability – and the respective rates thereto – our Courts use what is known as a ‘weighted average calculation’ to ensure that the rates of disability are equitably applied. One must remember that only death results in 100% disability so a simple addition of percentages does not suffice.
The result of this calculation is to, as much as possible, try and put the person who suffered the damage in the position he or she was in before the event in question. Apart from these two elements, meaning the link of causation and calculation of damage suffered, the Court must also be satisfied that the person causing the damage is actually to blame for such damage. The concept of blame (‘ħtija’), apart from depending on the link of causation, is intrinsically linked to the presence of malice or negligence, but that is a story for another article…