Issue link: https://maltatoday.uberflip.com/i/1139344
maltatoday 13 | SUNDAY • 7 JULY 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application to construct a one-storey garage next to an ODZ dwelling outside the limits of Dingli. The request was turned down by the Planning Commission after it held that the proposal could not be justified, there being "no apparent reason from a planning point of view as to why the proposed garage could not be located in an area within the established development schemes designated for such development." The Commission added that the proposed development was incom- patible with the Thematic Objective 1.10 and Rural Objective 3 of the Strategic Plan for Environment & Development which "only allow for rural development which is legiti- mate or necessary". Subsequently, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that his request should have been ac- ceded to. In his appeal, applicant (now, ap- pellant) conceded that it was cor- rect to state that his plot was located outside the development boundary. Nevertheless, applicant contended that "in no way could the area be de- scribed as a rural area". To substantiate his arguments, ap- plicant submitted a scaled block plan to demonstrate that the site was sur- rounded by buildings on three sides and a farm building was envisaged to be built on the remaining side. Applicant contended that the area was "heavily committed with devel- opment" and, thus, it could not qual- ify as a rural area. For its part, the Authority held to its previous position, reiterating that "the site subject to the appeal was actually outside the limits to devel- opment and should not be consid- ered on its own merits but also on the presumption that this forms part of an internal garage court that would be developed outside the lim- its to development". Furthermore, the case officer noted that access to the garage was only possible via a property not owned by applicant. Finally, the case officer went to point out that contrary to applicant's claims, the site in question was not surrounded by development. In its assessment, the Tribunal observed that the garage and appli- cant's residence were interlinked. Having said that, the Tribunal un- derlined that notwithstanding ap- pellant's insistence that the site was surrounded by nearby commitment, the most immediate buildings were situated 70 metres away. For this reason, the Tribunal felt that, were it to be approved, the pro- posal would only serve to encour- age ribbon development outside the schemed boundaries. Against this background, permis- sion was refused. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Garage next to ODZ dwelling refused IN our law the relationship between a doctor and a patient, whether in the private or public sector, is a contrac- tual one. Therefore while the plain- tiff must prove the link between the medical accident and the disability caused, it is up to the doctor to then prove that the medical procedure was carried out with the necessary skill and diligence of the best practices ac- cepted by medical science. This was held by the Court of Appeal on the 28th of June 2019 in the case of Vin- cent u Mary konjugi Gauci v. Tabib Ewlieni tal-Gvern u Dr Albert Fenech in a hearing surrounding the issue of medical negligence. Vincent Galea had undergone a medical procedure known as an- gioplasty, a procedure which opens blocked arteries and restores normal blood flow to the heart muscle. He claimed that as a result of this, he suffered a 33% disability which left him unable to walk without crutch- es. The plaintiff asked the Court to find the defendants responsible for the injuries and to liquidate the damages suffered by him in this re- gard. The defence, however, claimed that the accident did not happen as a result of the negligence of Dr Fenech and that, without prejudice to this, the Government Chief Medical Of- ficer could not be found responsible since there was no link between the parties. Moreover, it was argued that Mary Gauci had no legal interest in the case since she was not the one who had undergone the procedure and was not in Dr Fenech's care. While the First Court agreed with the de- fence council that the wife Mary Galea had no locus standi in the pro- ceedings since there existed no rela- tionship between her and the doctor in question, it, however, rejected all the other defences and condemned the defendants to pay a sum of €41,732.35. It based this judgement on the principles found both in the law as well as in landmark case law such as the case of Savona noe v. Asphar where it is confirmed that all medical professionals must act in accordance with the prudence, dili- gence and the attention of a bonus paterfamilias. The appellants' appeal application highlighted the fact that the law subjects the exercise of a profession to a level of responsibility that one can expect from a person of compe- tence, and that in this case the plain- tiffs did not adequately prove that it was medical negligence that caused the unfortunate accident. They held that, quoting the English Courts in the case of Roe vs Minis- ter of Health (1954), "we should be doing a disservice to the community at large if we were to impose liabil- ity on hospitals and doctors for eve- rything that happens to go wrong". The appellants requested the Court to re-examine the medical experts' reports and testimonies wherein it was claimed by them that nowhere in these did it result that the care given by the doctor was below the standard required by a medical spe- cialist. The Court of Appeal firstly clari- fied that the appellants were mistak- en in stating that the onus of proof is on the plaintiff to prove that the doctor acted negligently since the relationship between the patient and a doctor is a contractual one. The Court explained that while doctors cannot guarantee a particu- lar result, they have an obligation to ensure that the result does not lead to a worsening of the physical condi- tion of the patient. It was clear that the plaintiff proved that as a result of nerve damage caused by the op- eration he could no longer walk. It was then the doctor's responsibility to prove that he diligently exercised the procedure. Furthermore, the Court, by decree, summoned the medical experts to explain how they came to the con- clusions presented to the first Court. The experts explained that the ac- cident was caused by nerve damage which may unfortunately occur as these operations are considered to be "blind procedures", meaning that doctors cannot see where the nerves are during the operation. However, one of the experts explained that this accident could have happened because during the procedure the doctor did not wait for blood to flow out from the artery before piercing through, causing a greater risk of nerve damage. The Court saw this as a clear sign of medical negligence, and since no defence was made in this regard, the judgement of the First Court was confirmed. It was also held that since the relationship between the two parties was contractual, that the Government Chief Medical Officer, as the doctor's employer, was indeed bound to share in the responsibility. The judgement was given by Hon. Judge Giannino Caruana Demajo, Hon. Noel Cuschieri and Hon. An- thony Ellul. Disability caused by medical procedures places onus of proof on professional LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates