Employers are bound to ensure safety on the workplace, the Court of Appeal said in its recent judgement of 28 April, 2017 in the names Joseph Seychell et v. the Commander of the Armed Forces of Malta. The accident which gave rise to this case happened on 2 April, 2003.
Joseph Seychell, who at the time was a Gunner with the Armed Forces of Malta working in the Revenue Security Corps, was leaving the Army’s Barracks in Luqa, for duty with a colleague. Whilst boarding the vehicle, parked in the Barracks premises, he slipped on a pit in the road and he tried to brace the fall by leaning on the vehicle’s door with his shoulder. This led to a torn pectoralis maior in his bicep muscle. Although in time and with physical therapy he gained use of his arm, he still experienced pain when making certain movements, such as lifting his arm, and medical experts concluded that he had suffered a permanent disability of 4%. As a result of this accident, although he remained employed with Army, he was forced to change position.
Mr Seychell filed a case for damages against the Brigadier of the Armed Forces of Malta claiming that the damages incurrred by him were solely due to the negligence of the latter since he had failed to take the necessary measures and precautions to avoid this incident. Mr Seychell argued that the Brigadier was aware of the situation since it was often brought to the attention of the superiors and soldiers would also make written reports concerning this. The First Hall of the Civil Court by virtue of its two judgements dated 11 October, 2012 and 30 January, 2013 found the Brigadier responsible for the damages sufferred by Mr Seychell and ordered him to pay the sum of €9,722.80 in damages.
The Brigadier felt aggrieved with this judgement and filed this Appeal before the Court of Appeal where he reiterated his position by stating that the incident happened solely through the negligence and imprudence of Mr Seychell since the latter had stated that when the incident happened he had not taken notice of the hole in the ground. The Court of Appeal in considering the facts of the case referred to Maltese jurisprudence such as Kevin Mallia v. Alf Mizzi and Sons Limited, decided by the First Hall of the Civil Court on 9 October, 2003 where it had been held it is the duty of employers to provide a work place which is not of danger or risk to the health of their employees.
As per Michael Whincup’s teachings in his book entitled ‘Modern Employment Law’ which our Courts referred to in previous occasions, employers must meet four basic principles in ensuring that a safe working environment is provided to employees. Namely: the employer must ensure that the employee knows the dangers, the employer must ensure that the employee knows the precautions to be taken against these dangers, the employer must ensure that the precautions are available and the employer must ensure that the employee knows these precautions are available.
From our jurisprudence it is also emerges that employers are to be aware of the fact that there may be occurrences where employees neglect the dangers and the employer must be responsible enough to see that such mistakes do not happen. As held by the Court of Appeal in Carmelo Micallef et v. John Pisani et Noe decided on 5 October, 2001, the responsibility for safety at the place of work does not rest solely with the employer. In fact, whereas the employer has the obligation to provide a safe system of work as far as supervision and adequacy of means go, the employee has the obligation to conduct his work with diligence and attention so as not to provoke accidents which may be avoided with a bit of care and attention.
In this case, the Court held that the Brigadier had failed to provide a safe environment preventing accidents such as this from happening, and therefore the Court of Appeal also held that the Brigadier was responsible for the damages suffered by Mr Seychell, especially since it had been previously reported that these pits/holes in the tarmac were posing a danger to the soldiers.
The Court discarded the Brigadier’s argument that Mr Seychell was solely responsible for his injury. The Court held that it was a comprehensible reaction that Mr Seychell braced himself with the first object that was close to him, being the vehicle’s door. The fact that before slipping Mr Seychell had not taken cognisance of the pit was not influential on the Court’s decision. It is not to be expected that a person walks whilst looking down at the floor continously, for the eventuality that there is a hole in the floor especially since this was an enclosed and restricted area and at the work place. The Court felt that no negligence could be attributed to Mr Seychell and confirmed he had not contributed to the accident.
After considering these legal points, the Court of Appeal whilst slightly amending the amount of damages payable to Mr Seychell confirmed the judgement of the First Hall of the Civil Court by declaring that the Brigadier of the Armed Forces of Malta was to be held solely responsible for the damages suffered by Mr Seychell due to his injury whilst on duty.
Dr Catherine Mifsud
Mifsud & Mifsud Advocates
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