Issue link: https://maltatoday.uberflip.com/i/1002137
13 LAW & PLANNING maltatoday | SUNDAY • 8 JULY 2018 A planning application seeking to re- locate a number of tables and chairs to a new location after applicant was granted consent on a nearby site was accepted by the Planning Authority. Both locations are situated in Mer- chants Street in Valletta, today a pe- destrian zone. The said decision was nonetheless contested by a third party objector before the Environment and Planning Review Tribunal, who insisted that the permission should be revoked. In his submissions, the objector argued inter alia that the decision was both errone- ous in fact and at law. It was alleged that the 'applicant has been in operation and is still operating illegally on site by placing tables and chairs as he deems fit both on site as well as adjacent to the Presidential Palace wall'. This, accord- ing to the objector, should have been pointed out by the case officer since 'one must remove all illegal development or operations from site before applying'. It was further alleged that the applicant had placed the tables and chairs even though he had no executable permit in hand. Moreover, according to the ob- jector, applicant had erected a plastic structure on site in breach of permit conditions. Objector concluded by say- ing that the Authority should take a holistic approach whereby 'all pending applications together would lead to bet- ter harmony of operations on site and not the free-for-all reality which reigns at the moment'. In reply, the case officer disagreed with the objector. Whilst acknowl- edging that the site was subject to an enforcement notice initiated on 22nd December 2016 in connection with the illegal placement of additional tables and chairs without permit and an illegal canopy on the façade, the permit (under appeal) was still non-executable. Even so, the case officer went to state that 'applicant was already in possession of a previous permit for the installation of street furniture for outdoor dining (ta- bles and chairs)'. Moreover, the permit (under contestation) was issued saving third party rights whereas the granting of encroachments for tables and chairs was ultimately at the discretion of the Government Property Division rather than the Planning Authority. In its assessment, the Tribunal found that the permit under appeal was is- sued on 2 December 2016 whereas the enforcement notice was issued on 22 December 2016. The Tribunal thus concluded that the Commission had no reason to dismiss the planning applica- tion since the enforcement notice was not yet in force when the permit was issued. The Tribunal maintained that it was precluded to probe into the mer- its surrounding previous applications which did not form part of this appeal. On this basis, the appeal was rejected. THE First Hall of the Civil Court held in its judgement of 4 July 2018, that the driver who hit a pedestrian should still have used better judgment, even though she was blinded by the sun, when the ac- cident took place. The case was decided by Mr Justice Lawrence Mintoff in Gra- cie Cascun -v- Kristi Marie Agius and Untours Insurance Agency Limited. The plaintiff, Gracie Cascun, had filed a sworn application explaining that in June 2015, she was hit by a car driven by Kristi Marie Agius, and asked the court to declare that she was responsible for the accident and to pay damages. The defendant, Agius, defended the case by stating she was not to blame for the accident. Mr Justice Mintoff analysed the evi- dence brought before the court, where the doctors explained that when Cas- cun fell on her back, she was unable to walk and was taken to hospital. She was soon released and was given pain kill- ers and appointments at Out Patients Department. The Consultant wrote in his report that there was no need of any surgery, but she did suffer a permanent disability of 4%. Cascun then presented an affidavit, where she explained that she was walk- ing home and she was hit by a car when she was going on the pavement. She complained that she still felt pain in her back and she was unable to carry out certain chores at home. The defendant, Agius, also testified and told the court that on the day it was sunny and it affected her vision when she was driving in that particular road. She realised that she had hit someone and went out of the car to see if she was fine, but she was met with obscenities. She also noted that where the accident took place, there was no zebra crossing. The Court-appointed medical expert confirmed that Cascun suffered from frequent pain and established that the permanent disability was in fact 5%. The Court in its judgment, then ex- amined the legal points, starting with whether the defendant was responsible for the accident. A driver is bound by a number of general principles, amongst which each driver must regulate his driving according to the circumstances around him and must be attentive of what is taking place around him. Mr Justice Mintoff pointed out that in this particular case the driver did not use the prudence required because of the sun in her eyes at the time of the accident to assure herself that there was no obstacle on her part. This followed what a previ- ous judgement had said in Fogg Insur- ance Agencies Limited -v- Tal-Maghtab Construction Company Limited. In that judgment, the Court held that accord- ing to Article 1031 of the Civil Court, every person is responsible for dam- ages caused. If a person does not use the prudence, diligence and attention of a "bonus paterfamilias", then he will be re- sponsible for the damages caused. When driving one must adjust according to the conditions of the road, including rain, and the state of the road. In this case, Agius was responsible for the accident. As to the liquidation of damages, this is regulated by Article 1045(1) of the Code of Organisation and Civil Procedure. There are two types of compensation, material damages and loss of earnings. The plaintiff presented the court with a number of receipts for medical expenses and these are the material damages. With regard to loss of earnings, the court-appointed medical expert indi- cated that the permanent disability was of 5% and preferred to rest on this, rather than on the ex parte medical team that indicated 4%. The Court held that times have moved from the landmark judge- ment Michael Butler -v- Peter Heard of 22 December 1967, and courts should be more flexible to adopting the criteria of establishing the damages. In Malcolm Cumbo -v- Malta Freeport Terminals Limited of 30 June 2016, the compensa- tion should match the victim's expected working life. In this case the plaintiff is a housewife, but she should also be compensated for loss of earnings. This was also established in Mary Farru- gia -v- Agnes Borg of 24 October 2016, delivered by the First Hall of the Civil Courts, where the court highlighted that a housewife still had an economic value, compared to other workers. Mr Justice Mintoff established the minimum wage of 2015, as the yardstick. The plaintiff had also reached the pensionable age, but pensioners still have a right to work and therefore, the multiplier should be five years. From the calculations made the court came to the sum of €2,205.59 in dam- ages and ordered the defendants to pay her this amount. Housewife and pensioner still entitled to permanent disability compensation following accident mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Permit issued before enforcement notice Applicant was already in possession of a previous permit for the installation of street furniture for outdoor dining