Foreseeability in Maltese Tort Law with a particular focus on recent jurisprudence

Abstract

Liability under Maltese law is based on the concept of fault, which is provided for in Articles 1031, 1032 and 1033 of the Civil Code. These provisions require that persons be held liable for the damages which occur through their fault (either through dolus or culpa). However the law does not provide a definition for ‘fault’, rather it gives the indication that fault consists in the lack of prudence, diligence and attention of a bonus paterfamilias and also includes omissions of a duty imposed by law. For this reason, the courts have referred to Carrara’s definition of ‘culpa’ where it is described as the failure to foresee that which can be foreseen. Foreseeability as an element in tort law, however, does not feature in the aforementioned provisions. Hence, the focus of this study aims to determine at which point the courts take this concept into consideration when delivering a judgment. Along the years, our courts have mainly shifted between manipulating foreseeability in a manner to aid in, both the attribution of responsibility, and the establishment of a causal link between the act purported by the tortfeasor and the consequences that followed. Some courts have suggested that the actor is liable only for those direct consequences as distinguished from the effects of its occurrence. This exposition therefore aims to ascertain the extent at which the notion of foreseeability is taken into account in the attribution of fault, establishment of causation, and ultimately, whether this notion features at all in the computation of damages due to the victim.