Liability for contributory negligence resulting from an omission on the part of the plaintiff

Abstract

This study enquires into the requisites employed by the Superior Maltese Courts in finding a defendant partially at fault through contributory negligence brought about by an omission. A brief history of the doctrine of contributory negligence uncovers that the inspiration behind Article 1051 of the Maltese Civil came from the Allgemeine Bürgerliche Gesetzbuch (the Austrian Civil Code). Liability (through omissions) and causal link are two central requisites within the concept of contributory negligence which will be used to analyze Maltese jurisprudence. The focus of this study is Maltese jurisprudence from the Superior Courts. Relevant cases uncover that not only omissions are in fact admitted under Article 1051; but that contributory negligence is usually determined through a detailed interpretation of Article 1051 and other articles regarding liability are not frequently referred to within these decisions. From this exercise it also emerges that contributory negligence through omissions incorporates several different forms of contributory negligence, including avoidable loss. A comparative exercise analyzing the requisites appertaining to contributory negligence within three different jurisdictions: the British, French and German legal systems, leads one to the conclusion that Maltese jurisprudence follows French legal system In regard to its expansive interpretation of liability and the manner in which it defines contributory negligence –through jurisprudence. The findings extrapolated from this study indicate that Maltese jurisprudence does not need any novel laws or regulation rather that more studies be done for all legal practitioners to gain a better understanding of omissions under Maltese law in respect to the Law of Delict.