Delictual liability : a study of the 2010 white paper and the related bill

Abstract

Bill 78 of 2011 proposes to amend Articles 1045 and 1046 of the Civil Code which deal with the compensation for damages in cases of personal injury and when death ensues respectively. The White Paper is more comprehensive as two regulations are annexed to it providing computation methods and the factors to take into account during such computations. The aim of this thesis is to explore how the various weaknesses and lacunae present in Maltese law are addressed through this proposed legislation and how it will affect our jurisprudence. The introduction outlines the White Paper. Chapter 1 identifies various areas of doubt and controversy in the current system, particularly the non-compensation of moral damage, diverging applications of the formula used to calculate lucrum cessans damage and doubts concerning the kind of damage to be compensated when death ensues. Chapter 2 explains how the White Paper plans to re-configure the concept of lucrum cessans. Particular reference is made to the regulations: one regulation seeks to heavily standardise the lucrum cessans computation method, the other provides a disability schedule which is to be referred to during the computation method. The re-introduction of capping is also explored. Chapter 3 deals with other heads of damage: the proposed introduction of non-pecuniary damages and future medical expenses in the Maltese Civil Code and an amendment to Article 1046 which deals with cases when death ensues. The 2010 White Paper is compared with Act VI of 2004, a previous attempt by the legislator to amend the law. Finally Chapter 4 discusses the potential overall impact on Maltese jurisprudence and whether the proposed legislation satisfactorily addresses the current problems in our system for compensating tort damages. The main question is: should legislative objectivity be attained at the expense of judicial discretion?