Maltese Tort Jurisprudence (1869-1920) : a system designed favor debitoris?

Abstract

This thesis explores whether Maltese tort legislation and judgments delivered between 1869 and 1920 exude a favor debitoris approach; i.e. whether the domestic judiciary was more inclined towards protecting the interests of the debtor, being the tort-­feasor and also whether the figures of tort-feasor and property-­owner tended to coincide. This time-­frame was selected as it succeeded the promulgation of Ordinance VII of 1868, the founding statute of our Civil Code, but preceded the amendments to our tort provisions. An analysis of Ordinance VII in the context of its sources was conducted to elucidate whether the pro debitoris bias was embedded within the legislation itself. Certain provisions in the Ordinance were identified which did clearly show such a bias, together with others which were much more neutral in approach. The study of the judgements was conducted in two separate chapters, one of which focused on general principles relating to liability and damages, whereas the other focused on special cases relating to concurrent and indirect liability. Here too there were various instances where a pro debitoris orientation could be noted; particularly in relation to indirect liability, which was interpreted restrictively, in decisions determining scenarios of contributory negligence and in judgements awarding compensation for bodily harm. The Courts in this period did not invoke the non cumul rule, indicating that the scope of tort liability was still rather restricted. However, there were also various instances in which the courts seemed to be deliberately adopting a broad understanding of fault to extend liability. The overriding impression resulting from the review of the judgements related to the flexibility of the Courts in Malta’s mixed jurisdiction and the great discretion they possessed in interpreting tort law in the period under review.