Governmental liability : past and present

Abstract

The focus of this study is to discuss the evolution of the doctrine on governmental liability of the Maltese Courts, that is “the obligation of the public administration to make good for the damage caused to a person, even if such damage was caused by negligence, after being rendered responsible for a particular set of facts or course of action in contract or tort”. It first examines the old position taken by the local courts, specifically during the turbulent period of 1894 till 1972. It is noticeable that a number of inconsistent and contradictory judgments have been produced over this period. This is so because the doctrine of the dual personality of the state, first introduced in 1894, although embraced for several years, was applied sporadically by the Courts. Some judgments faithfully applied this doctrine, thereby exempting government from liability when acting in terms of its political sovereign authority, whilst in other judgments the Court decided to embrace a different approach and decided the matter on the basis of provisions found in the Civil Code. Even though in 1935 it was remarked that the doctrine had absolutely no foundation in the local legal system, it was definitively laid to rest in 1972. Focus is then shifted to more recent court decisions in order to identify what is the present accepted doctrine. As can be seen in Chapter Two, from the grounds upon which the local courts are currently holding government liable in damages, it is clear that nowadays government is regarded as the administrator of the State owing duties and obligations to private citizens. Finally, the dissertation concludes by encapsulating a number of points of interest that have emerged throughout this study.