Employer Liability Leads to Over €200,000 in Damages

In a landmark judgment delivered on the 14th of March 2024 in the names Maria Matruscelli vs Palumbo Malta Shipyards Limited et (case numbered 518/19TA), the First Hall of the Civil Court awarded €208,871 in compensation to the plaintiff.

The case revolved around the death of Aniello Fariello who lost his life on the 18th of January 2016 while performing his duties on board the vessel MV Galaxy, which vessel was docked at the shipyard belonging to Palumbo Shipyards Limited (hereinafter referred to as “Palumbo”). During the process of mooring the vessel, a reel through which one of the ropes passed gave way, with the consequence that the rope hit Fariello in the head with immediate fatal consequences.

The mother of the deceased, Maria Matruscelli, filed an action for compensation against Palumbo, Moby S.p.A and Antonio Scotto Ciccariello on the basis that they had failed to take the required precautions at law during the mooring operation. The deceased was employed by Palumbo in his capacity as an engineer, Antonio Scotto Ciccariello was the captain of the vessel and Moby S.p.A was the owner of the vessel.

Employer’s Duty:

Mr Justice Toni Abela held that the main issue to be examined was the responsibility of every party to this fatal accident. The Court held that it is the duty of every employer to provide a “safe system of work”. The Court continued to observe that it is the employer’s duty to provide the means, equipment and work environment which do not risk the health and safety of the employee, as per article 2(2)(a) of the Occupational Health and Safety (Promotion) Act, Act VII of 1994.

Furthermore, the Court emphasised that in the context of work site accidents, the employer must prove that every step was taken to minimize and prevent any accident from happening. Therefore, there is a shift in the onus of proof in such circumstances as the employer must prove that every step was taken as required by law to provide a work environment which reduces any risk to employees.

In this case, it was held that in such situations, the Maltese legal position is the same as that prevalent under English Common Law. Reference was made to the book ‘Occupational Health & Safety Law’, by Brenda Barrett et, which states that in the case of employment contracts, “it could be said that there was an implied duty to take care for the personal safety of the other party to the contract”. In the context of this reference, the Court noted that it is enough for the employee to show a lack of adequate measures, such that the obligation is then placed on the employer to absolve himself.

Building on this, the Court held that even if the system of work was utilised for a long period of time without any accident having occurred, this does not imply that such system is secure or releases the employer from the observance of the law.

Prescription:

Respondents Moby S.p.A, together with Antonio Scotto Ciccariello raised the preliminary defence of prescription.

On this preliminary plea, the Court maintained that this was not a case involving serious injuries where the victim was still alive, but rather one of death of the victim, which is very different, and thus the period of prescription was extended. To this end, reference was made to article 2154(1) of the Civil Code, Chapter 16 of the Laws of Malta, which provides that the rules laid down in the Criminal Code, Chapter 9 of the Laws of Malta, relating to prescription of criminal actions shall apply with regard to prescription of civil actions for damages arising from criminal offences. Here, the Court made reference to articles 225 and 688 of the Criminal Code and concluded that the prescriptive period applicable in this case was that of five years, thus rejecting the plea of prescription brought by the respondents Moby S.p.A and Ciccariello.

Responsibility:

Emphasis was placed on article 6(1) of the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta, which provides that “[i]t shall be the duty of an employer to ensure the health and safety at all times of all persons who may be affected by the work being carried out for such employer […]”.

The Court heard how the MV Galaxy was in such a bad state that it had its certification revoked and thus had to be towed to Malta for a total refurbishment. In this regard, the Court referred to the testimony of the technical expert Captain Reuben Lanfranco, who stated that before such a vessel is to be manoeuvred, a meeting must be held between the shipyard authorities, and especially the safety officer (who, it transpired, was not on board the vessel), together with the berthing master, the commander and the boatswain in order to carry out a risk assessment in order to eliminate any issues which may lead to similar accident. Captain Lanfranco further noted that such risk assessment did not take place.

The Court reached the conclusion that Palumbo had sufficient information, or should have known, not to expose its employees to the dangers presented by this vessel. Moreover, the Court emphasised the fact that Palumbo should have been aware of the presence of the victim on board during the mooring manoeuvre and of the lack of a safety officer on that day. The Court also held that Palumbo ignored the requirement that a person who ties or moors a vessel is required to be licensed in terms of the Mooring Services Regulations, Subsidiary Legislation 499.03.

The Court concluded that the deceased should not have been where he was on the MV Galaxy and that Palumbo was cognisant of his location. Moreover, the Court noted that it was Palumbo’s duty, as the deceased’s employer, to be aware of his presence and furthermore, the Court did not exclude the fact that the respondent company actually ordered the deceased to be on the vessel, on the basis of the examination of the deceased’s contract of employment.

In consideration of the above salient points, the Court was convinced that Palumbo was responsible for the death of Aniello Fariello. The Court found that the other two defendants, Moby S.p.A and Ciccariello, were not responsible for the incident and liberated them from the observance of the law.

Maria Matruscelli was represented by Dr Frank B. Testa.