The 2018 amendments have added further uncertainty to Maltese tort law, and that there is a need for legislative action to guide the law towards a more humane and victim-centred approach.
In a judgement delivered on 11 November 2025, the Court of Appeal, in its superior jurisdiction, upheld the damages awarded by the First Hall of the Civil Court, including €10,000 granted arbitrio boni viri, which means according to equity, together with other heads of damages.
Malta has a long-standing legal tradition that rejects the concept of moral damages. Maltese tort law is rooted in patrimonial damages, meaning that compensation is intended to restore the victim to the same financial position they occupied prior to the event giving rise to the damage.
On 14 April 2010, a head-on collision occurred between two vehicles travelling in opposite directions. One vehicle veered into the oncoming lane, causing the crash. The driver of the tortious vehicle and another passenger died at the scene. The driver of the other vehicle, her minor daughter, and two additional passengers sustained injuries.
The driver instituted proceedings against the heirs and insurers of the tort-feasor, seeking compensation for herself and her minor daughter, who suffered permanent disabilities of 20% and 2% respectively. Since the defendants did not contest liability for the accident, the court’s task was limited to determining the amount of damages.
The First Hall first assessed damnum emergens which are the actual expenses incurred as a result of the accident. The plaintiffs had incurred substantial medical costs, both in Malta and abroad. The defendants argued that the foreign medical expenses, which were significant, should not be recoverable on the basis that they were unnecessary or not directly caused by the incident. The court rejected this plea, holding that although victims are expected to mitigate damages, they retain an absolute right to seek the most appropriate medical treatment. In this case, treatment abroad had been recommended by clinicians. The court further held that the availability of free healthcare in Malta does not constitute a valid legal basis to deny reimbursement of medical expenses.
The court then assessed lucrum cessans which means the loss of future earnings. Additionally, and relevant for the purposes of this article, the court went on to liquidate an amount of €10,000 damages arbitrio boni viri. The court emphasised that in tort cases, the principle of restitutio in integrum requires it to restore the victim to the same position they would have been in had the wrongful act not occurred. The court observed that in this case it was impossible to place the victim in her pre-accident position, even from a psycho-physical perspective. For instance, if the victim previously practised sport or was able to take on multiple jobs, such opportunities were now foregone. Damages of this nature cannot be quantified through rigid or mechanical criteria.
The defendants appealed, while the plaintiffs filed a cross-appeal disputing the amounts awarded. For the purposes of this article, the relevant issue is the defendants’ challenge to the €10,000 award. They argued this constituted moral damages, which are not recoverable under Maltese law. The Appeals Court rejected this argument, holding that these damages represented future medical expenses falling within damnum emergens.
However, the difficulty remains that these damages do not strictly correspond to specific, itemised expenses already incurred and, given the nature of the treatment required, the real costs are likely to exceed €10,000. Moreover, by endorsing the First Hall’s approach and expressly recognising the sum as damages awarded arbitrio boni viri, the Appeals Court appears to have deviated from the established principle that damages in Malta must be exclusively pecuniary and aimed solely at reinstating the victim to their prior financial position.
However, the legal position on this point remains ambiguous. Prior to 2018, the law did not expressly exclude moral damages yet nevertheless, judicial doctrine consistently held that such damages were not recoverable. There was, however, a developing inclination to acknowledge psychological harm. In 2018, parliament amended the Civil Code to introduce the possibility of awarding compensation for “moral harm” and “psychological harm” yet only where the damage arises from particular criminal offences.
In the Appeals Court judgement Ivan Azzopardi et vs Alfred Sciberras et of 2024, the court held that the 2018 amendments constituted a “final blow” to non-pecuniary damages in tort. By expressly allowing such damages only in specific criminal offences, the legislator was deemed to have excluded the availability of non-pecuniary damages in all other cases.
The author therefore argues that the 2018 amendments have added further uncertainty to Maltese tort law, and that there is a need for legislative action to guide the law towards a more humane and victim-centred approach.
