Issue link: https://maltatoday.uberflip.com/i/750768
49 Opinion maltatoday, SUNDAY, 13 NOVEMBER 2016 T he First Hall of the Civil Court held that the plaintiff in a damages lawsuit must prove that the defendant is legally responsible for the accident that occurred. This was held in Louis and Maryanne Bonavia v John Bonello, Nicola Gambino and Atlas Insurance PCC Ltd, decided on 8 November, 2016 by Mr Justice Silvio Meli. The plaintiffs filed a lawsuit and explained in their application that on 25 May, 2009 Louis Bonavia was hit by a speed boat at San Blas, Gozo while he was diving. He blamed the defendants as the persons responsible for the accident which caused physical and psychological disability. The Bonavias asked the Court to order the defendants to pay damages. Atlas Insurance filed a statement of defence stating that the insurance policy covered only Clive Camilleri. Nicola Gambino and John Bonello were not covered. The insurance company held that the plaintiffs have to prove their allegations. Bonello and Gambino also filed a statement of defence rebutting that they were responsible for the incident and they were negligent in any form. Mr Justice Meli went through the evidence produced, where it resulted that Louis Bonavia was wearing a wet suit and was doing underwater fishing some 300m away from the coast. He was about 25 to 30 metres away from a dinghy. The speedboat was driven by John Bonello. The Court noted that from the evidence produced there were no markings that diving was taking place. The buoy markers were left on the dinghy. As a consequence of the incident the plaintiff had his left leg amputated after it hit the speedboat's propeller. As to the legal position the Court pointed to Articles 1031 and 1033 of the Civil Code. These articles state that one is responsible for the damages one causes. Responsibility lies if one does not use prudence or attention. However, if prudence and attention are made use of, then one should not be held responsible for damages. The Court from a previous judgement, Francis Busuttil -v- Sammy Meilaq noe decided on 9 December, 2002 by the First Hall of the Civil Court, held that the plaintiff of a damages case must prove that defendant caused the event that caused the injury. As a result the Court moved to analyse whether the defendants were negligent or imprudent when the accident took place. The Court noted that the speedboat was being driven at a low speed and that the plaintiff was within 30 metres from his dinghy and was wearing a black wet suit and had no markings that diving was taking place. The speedboat in question was not within a swimmers zone nor driven within the bay. The Inquiring Magistrate, who investigated the accident concluded that the incident did not take place because of Bonello's driving of the boat and the plaintiff had to take full responsibility for what happened. The Court commented that although the Magistrate's enquiry was separate, the facts at play were common and as such the Magistrate's conclusions strengthened the Court's conclusions. The Court commented that it is a known fact that divers are to use markers on the sea to notif y boats that diving was taking place. The fact that no markers were used meant that the diver had attracted danger. The plaintiff 's boat 30 metres away was not sufficient. The Court concluded that the accident was Bonavia's responsibility and therefore, turned down his claim for damages and upheld the defendants' pleas. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A request for the "change of use from a retail shop to pastizzeria" was approved by the Environment and Planning Commission subject to applicant implementing all recommendations listed in a fire and safety ventilation report, which applicant himself had commissioned earlier during the application process. The premises are located in Zabbar Road, Fgura. Following the permit's approval, a number of objectors lodged an appeal before the Environment and Planning Review Tribunal, insisting that the permit should be revoked on a number of grounds. One of the objectors immediately declared that he is the owner of 'the shopping area adjacent to the site in question.' The third party objectors noted that the proposed use requires 'a chimney ventilating to outside space.' Having an activated carbon filter was not acceptable to the objectors 'as once this filter is clogged, the cooking smells will still affect the adjacent residences and shops.' Moreover, it was alleged that 'the heat generated by the cookers will affect the adjacent premises and overlying residence' adding that the heat would be 'detrimental to the overlying and adjacent premises, since the place cannot be adequately insulated due to its lack of height within the shop and small size of the premises', adding that the property is deemed to constitute 'a fire hazard.' On a different note, the objectors warned that the proposed use envisages the generation of a 'sizeable amount of garbage' while customers are likely to 'double park', in turn causing a traffic hazard as the premises in question are situated 'very close to a roundabout.' In reply, the case officer representing the Authority maintained that the premises were already licensed as a retail shop. Whilst acknowledging that the applicant was not relying on a conventional ventilation system, the case officer pointed out that policies allow the possibility to 'utilise a form of filtering which does not require external venting' when it is not possible to install a chimney flue. The case officer reiterated that the premises are indeed located within the Secondary Town Centre of Fgura where take- away outlets may be permitted. With regard to the traffic issues, the Authority said that the enforcement of on-street parking does not fall within its remit. In its assessment, the Tribunal observed that the premises were to be used solely as a take- away for the sale and baking of pastizzeria items. In other words, no cooking operations were envisaged. Moreover, the permit conditions stipulated in no uncertain terms that 'the preparation and distribution to other retail outlets was strictly prohibited.' Even so, the Tribunal noted that the objectors failed to submit any technical evidence to contest the recommendations put forward in the fire and safety ventilation report. Against this background, the Tribunal held against the objectors. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law Pastizzeria approved in secondary town centre Robert Musumeci Current policies allow the possibility to 'utilise a form of filtering which does not require external venting' Boat driver not at fault in diving accident Malcolm Mifsud Boat driver not at fault in diving accident mmifsud@mifsudadvocates.com.mt The facts at play were common and as such the Magistrate's conclusions strengthened the Court's