Issue link: https://maltatoday.uberflip.com/i/604914
52 maltatoday, SUNDAY, 22 NOVEMBER 2015 52 Opinion T he First Hall of the Civil Courts in its judgement of 18 November, 2015 held that a company was responsible for the lack of safety measures on a building site. This was decided in Ryan Barbara, Brandeen Ciappara, Northon Barbara, Roberta Callus in the name of minor Lani Barbara Callus, all offspring of Joseph Barbara -v- Pavin Limited. In their application the heirs of Joseph Barbara held that the defendant company was the deceased's employer, who failed to ensure that all safety measures existed in terms of Article 8(1)(b) of Chapter 37 of the Laws of Malta. The company in particular failed to ensure Joseph Barbara's safety at his workplace in terms of Article 49(1) and (3) (a) of Legal Notice 52, 1986. Due to this Joseph Barbara lost his life at his place of work in Tarxien on 30 October, 2007 and therefore, asked the court to condemn the company to pay damages. In its statement of defence Pavin Limited held that the company was not to blame for the accident and that there were no damages to be liquidated. Mr Justice Lawrence Mintoff analysed the evidence, which showed that on 30 October, 2007, Joseph Barbara was working on the roof of a block that was four storeys high. In the road there was a crane, operated by a director of the company, taking up building material to the roof. Joseph Barbara climbed on some bricks there, guiding the crane and manoeuvring the bucket, and then would push a lever for the material to be deposited on the roof. He climbed higher on the bricks to reach the bucket, and then fell four storeys. The Court then quoted the General Provisions for Health and Safety at Work Places Regulations: "4. (1) It shall be the duty of an employer to ensure the health and safety of workers at all times in every aspect related to the work." Although the company held that it adhered to the regulations, from the photos produced Mr Justice Mintoff pointed out that the stairs had no protection rails, the lift shafts were open and there were unprotected openings. From this the company did not manage to guarantee a safe working environment. In fact the directors were already found guilty of the criminal charges connected to this accident. The employer is bound to follow these regulations in case the workers are not attentive. In this case the director of the company himself saw that Joseph Barbara took a dangerous position when the building material was being hoisted and should have stopped him immediately. Furthermore, part of the problem was the position of the crane, which deposited the martial too close to the edge and did not offer protection to the workers on the roof. On the other hand Joseph Barbara contributed to the accident, as he exposed himself to danger when he climbed the bricks as the material was being lifted. He was aware that the position he took was dangerous and that the bricks were not stable. Then Mr Justice Mintoff calculated the damages. At the time of his death Joseph Barbara was 52, but no evidence was given about his income. The Court then calculated on the basis of the minimum wage. He has eight years to reach the pensionable age. He would have earned €64,833.52 from 2008 to 2015. The Court then reduced 25% for personal consumption and then a further 33%, for the grade of dependency and a further reduction of 25% for his contribution to the accident. This then resulted in €24,434 in liquidated damages. The Court ordered the company to pay this sum to the heirs of Joseph Barbara. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt T he Malta Environment and Planning Authority issued an enforcement notice against a site owner in Triq it-Tigrija, Xaghra, Gozo, alleging that various structural interventions had taken place without a permit. The illegal works included the formation of a passageway and unauthorised facade alterations. Indeed, the site owner was formally notified with the enforcement notice on 2 May, 2014 by way of a registered letter and consequently he decided to file an appeal against the enforcement notice. A copy of the appeal submission reached the MEPA offices in Gozo on 15 May, 2014. A copy of the same documentation was filed at the Tribunal Registry (in Malta) on 20 May, 2014. Now, any person who feels aggrieved by any order or notice served on him may file an appeal against such order or notice within 15 days from the service of the notice. (Article 86 (12) of Chapter 504) In this case, it follows that the appeal submissions reached the MEPA offices (in Gozo) within the statutory 15-day period while it took appellant 16 days (namely, a day further to the statutory closing period) to lodge a copy of the said submissions with the Tribunal. As one would anticipate in these circumstances, the Authority immediately insisted with the Tribunal that the appeal should be dismissed forthwith since it was lodged fuori termine ("out of time'). For his part, the appellant explained that he went to his lawyer on 9 May, 2014 (seven days after he was formally notified with the enforcement) and his appeal submissions were duly filed with the Authority in Gozo on 16 May, 2014. Appellant, thus contended that his appeal was valid. More so, he referred to an exchange of correspondence with the Tribunal, by way of which he was requested to forward the original copy of the paid appeal levy. In this context, appellant therefore contended that his submissions were tacitly endorsed by the Tribunal. In its assessment, the Tribunal highlighted the importance that, for an appeal to be valid, the relative submissions must reach its registry within the statutory 15 day time period. The Tribunal acknowledged the fact that the appellant lived in Gozo and that the Tribunal registry is located in Malta. Furthermore, the Tribunal assessed that the appeal submissions reached the MEPA offices (in Gozo) within the statutory 15 days. Nonetheless, it concluded that the appeal was fuori termine since the submissions must, in any event, reach the Tribunal offices in Floriana. Appellant appealed the Tribunal's decision before the Court of Appeal (Inferior Jurisdiction), insisting that he was deprived of a fair hearing. Nevertheless, the Court confirmed the Tribunal's decision. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree Lack of health and safety measures leads to compensation following death Robert Musumeci MEPAwatch Appeal submissions must formally reach the Tribunal offices in Floriana even if appellant lives in Gozo The stairs had no protection rails, the lift shafts were open and there were unprotected openings Gozo appeal dismissed because it reached Floriana late!