Issue link: https://maltatoday.uberflip.com/i/1529157
12 maltatoday | SUNDAY • 10 NOVEMBER 2024 OPINION & LAW Law Report IF a party to any action does not produce any evidence in a damages case, it may implicitly admit to responsibility. This was held in Catania Fisheries Limited vs Adrian Zerafa decided by the First Hall of the Civil Court on 6 November 2024. Judge Anna Felice presided. The plaintiff company filed a sworn application in which it explained that it owned two warehouses on which so- lar panels were installed. In February 2019, these solar panels were damaged and electricity was not being generated. The accident took place when the solar panels of the Defendant which were in- stalled on his property came loose and were thrown on the Plaintiff's roof. The damages claimed included damage to the solar panels and loss in subsidies on the electricity. The Plaintiff asked the court to order the Defendant to pay for the damages it would liquidate. The Defendant, Zerafa, argued that he did not cause the damage. He explained that on the day there was a storm and his solar panels dislodged and flew on the Plaintiff company's property. He also claimed that his contractor, Power Plus Limited, which later was called into the suit, had installed the solar panels badly. Therefore, it was more of a force majeure. Power Plus said there was nothing de- fective in its work, but the damage was caused due to a storm. In fact, the solar panels of the Defendant were installed a while before the storm. The court pointed out that Zerafa had testified and admitted that what the Plaintiff held was correct. The solar pan- els and bricks on which they rested did end up on the neighbour's roof. Zerafa had engaged an engineer to report on the cause of the damage and he testified that the solar panels were not secured profes- sionally. On the issue whether Power Plus should have been called into the action, the court acknowledged it did not have any judicial relationship with the Plaintiff. But the court held that any party which may be connected to the merits of the case – re- sponsibility for the accident – may form part of the action. The Defendant claimed that Power Plus failed to attach the solar panels properly and therefore was the cause of the damages. Power Plus argued that it should not be held responsible for the failings of the Defendant, hinting that he did not carry out proper maintenance of the solar panels. The court noted that Power Plus did not produce any evidence to support its claims and did not contest the estimate of the damages. The court took this to mean that it was admitting implicitly that it was responsible for the failings. The damages consisted in loss of earn- ings and damages to the solar panels. This amounted to €2,258. As to the loss of electricity that would have been gen- erated, the court held there was no loss. A representative of REWS explained that the solar panels were not licensed and were not operative at the time of the ac- cident. The Plaintiff had applied to con- nect them to the grid and this was not followed up. The court ruled that both the Defend- ant and Power Plus jointly were to pay the Plaintiff the sum of €2,258. Producing no evidence may imply responsibility LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates Muzzling educators A recently published policy on the par- ticipation of educators in the media has led to accusations that the Education Ministry is seeking to censor their free- dom of expression. The mere fact that this policy was is- sued by the Department for Education- al Services is ironic since any attempt to muzzle educators is a disservice to the students they teach. The policy states that all educators within the educational system must seek approval from their line manager prior to any media appearances. Their request for approval must contain de- tails re-garding the nature of the me- dia appearance, the topics discussed, and the media house hosting them. It is also their responsibility to ensure that the request reaches the Department's Director General, who will then deter- mine whether approval is granted. If approval is granted, educators are obliged to "adhere to a strict rep- resentation policy", which is meant to ensure that what they say reflects the ministry's policies, guidelines and ob- jectives, and avoids any statements that are politically-biased or compromise the "educational system's neutrali-ty". Educators who are granted approval are reminded that their contributions to the media need not only be factual, based on data, and aligned with edu- cational priorities, but must not con- sist of "personal opinions, political ideologies, or any content unrelated to education". Sharing such per-sonal views can apparently "undermine their position as impartial and responsible educators". An analysis of the language used in writing the policy reveals the underly- ing beliefs, misconcep-tions and ideol- ogy of the policymaker. Far from the supposed neutrality and impartiality vaunted by the policy, the Director General seems to be convinced that a position of authority entitles her to control what subordinate educators can say in public. They are expected to sing from the same hymn sheet or else face dire con- sequences. Those educators breaching the policy will be reported to the Director General "for review and en-suing action". This threat reveals the skewed belief that punishment is justified for noncon- formist discourse by those who have the temerity of speaking about education on the media. That this policy echoes guidelines in- cluded in the Public Service Manage- ment Code – which pro-hibits public officers from making statements that are politically biased or controversial in nature – is not a good enough excuse. The belief that any educational system is neutral is laughable at best and be- trays a gross misunderstanding of the politics entrenched in any educational act. Reminiscent of the work of the Min- istry of Truth in George Orwell's Nine- teen Eighty-Four, this poli-cy seems to be dictating how education should be represented in Malta by those who choose to speak about it. Any views that contradict this official representation are either to be nipped in the bud by means of threats to an ed- ucator's professional record or penal- ised in ways that might put one's career on the line. The fact that whoever wrote this pol- icy entertained the idea of gagging the very professionals who are meant to cultivate an inquisitive, critical and questioning disposition in young peo- ple is bizarre and scary. If we live in a democracy that values the cultivation of open minds that are perennially capable of interrogating the information and discourse shared by a variety of sources – including politi- cians, lobbyists and the media – then it is highly problematic for someone in authority to sub-vert that civic enter- prise by means of a fascist policy. The policy reveals a fear of dissent and seeks to discourage educators from po- sitioning themselves as the kind of in- tellectuals described by Edward Said. For him, an intellectual is "an opponent of consensus and orthodoxy, particular- ly at a moment in our society when the authorities of consen-sus and ortho- doxy are so powerful". Educators who have the courage, con- fidence and ability to articulate their thoughts on education in Malta should not be made to toe the line or fear re- percussions for expressing unsanc- tioned opinions and critical views. In many cases, they are relying on their knowledge and experience to be "the voice of the individual, the small voice… of the individual [that] tends to be not heard". Educators who position themselves in this way are playing an instrumental role in the ongoing de-bate on the qual- ity and effectiveness of education in this country. Just like Said's intellectuals, their role "is not to consolidate authority, but to understand, interpret, and question it". Daniel Xerri is an educator Daniel Xerri