Claiming damages in Malta: fault, amounts and time limits
Maltese law on civil liability rests on a few articles of the Civil Code (Cap. 16). Every person is liable for the damage which occurs through his fault (article 1031), and a person is at fault if he does not use the prudence, diligence and attention of a bonus paterfamilias, the reasonable person (article 1032). Liability arises whether the harm was intended or merely negligent (article 1033). Damage caused by a fortuitous event or irresistible force stays where it falls (article 1029).
These rules cover slips and falls, damage to property by neighbours or contractors, injuries caused by animals or falling masonry, professional mistakes and most other harm suffered outside a contract. Where the harm comes from breach of a contract, parallel rules apply (articles 1125 to 1141). Compensation is limited to what you actually lost: the damage itself, the expenses it forced on you, lost earnings and, in case of permanent incapacity, loss of future earnings (article 1045). Compensation for moral harm is available only in narrow cases defined by law.
This guide explains how to establish who is liable, how to quantify and prove the claim, how to stop the two-year prescription from running and which court or tribunal to turn to.
Key facts
Deadline
An action for damages not arising from a criminal offence is barred by the lapse of two years (article 2153 of the Civil Code); where the damage arises from a criminal offence, the prescription of the criminal action under the Criminal Code applies (article 2154(1)). A judicial act interrupts prescription only if it is served within one month after the last day of the period (article 2130). Contractual money claims are generally barred after five years (article 2156(f)).
What to do
Decide whether your claim is in tort or in contract. If you had no contract with the person who caused the harm, the claim is based on articles 1031 to 1033: you must prove a wrongful act or omission, fault, damage and the causal link between them. If the harm results from a contract that was not performed or was performed late or badly, the debtor is liable in damages unless he proves an extraneous cause not imputable to him (articles 1125 and 1133).
The distinction matters. In contract the debtor answers only for damages that were or could have been foreseen at the time of the agreement, unless he acted fraudulently (article 1136), and a sum fixed in the contract as damages may be neither increased nor reduced by the court (article 1138). Prescription also differs: two years in tort, generally five in contract.
Identify everyone who may be liable. Besides the person who caused the damage, the Civil Code makes liable: whoever has charge of a minor or of a person incapable of managing his own affairs, if he failed to exercise due care to prevent the act (article 1034); an employer or client who engaged an incompetent person for the work (article 1037); a person who undertook work without the necessary skill (article 1038); the owner or user of an animal, even if it had strayed (article 1040); and the owner of a building that falls through want of repair or a construction defect he knew of or had reason to suspect (article 1041).
Children under nine are never personally liable, and those under fourteen only if they acted with mischievous discretion (article 1035). Anyone who wilfully contributed by advice, threats or commands is also liable (article 1044). Where a motor vehicle is involved, the insurer can be pursued as well.
Secure the evidence at once. The burden of proving fault, damage and causation lies on you. Photograph the scene and the damage, take the names and contact details of witnesses, keep the damaged item, and obtain any police report, incident report or occupational accident report. For bodily injury, see a doctor immediately and keep every certificate; the court will later appoint its own medical expert to fix the percentage of permanent disability, but contemporaneous records carry weight.
For property damage, have an architect (perit) or other expert draw up a report with photographs and a costed estimate of repairs before anything is repaired. Keep receipts for every expense.
Quantify the claim under article 1045. Recoverable heads are: the actual loss directly caused (damnum emergens), such as repair costs or the value of the thing destroyed; expenses you were compelled to incur, such as medical treatment, medicines, transport and care; loss of actual wages or other earnings; and loss of future earnings arising from permanent incapacity, total or partial (lucrum cessans). The sum for incapacity is assessed by the court having regard to the nature and degree of the incapacity and your condition (article 1045(2)); in practice courts work from your annual earnings, the percentage of disability and a multiplier reflecting your remaining working life.
Pain and suffering are not compensated as such. Moral and psychological harm may be awarded only where the damage arises from certain wilful crimes, up to €10,000 (proviso to article 1045(1)). If the victim died, the heirs may claim as for total permanent incapacity (article 1046).
Send a judicial letter before prescription runs out. Start with a written claim to the wrongdoer or the insurer, but do not let negotiations run past the two-year limit: an ordinary letter or e-mail does not interrupt prescription. What interrupts it is a judicial act filed in court and served on the other party, showing clearly that you intend to preserve your right (article 2128), typically a judicial letter under article 889 of the Code of Organization and Civil Procedure (Cap. 12). It must be served no later than one month after the last day of the period (article 2130).
An acknowledgment of liability or a payment on account by the other side also interrupts prescription (articles 2133 and 2134); ask for it in writing. In money obligations, interest at eight per cent a year generally runs from the judicial intimation (articles 1139 and 1141(2)), which is a further reason to serve one early.
Choose the right forum. Money claims not exceeding €5,000 go to the Small Claims Tribunal, which decides quickly and on a simple claim form (article 3 of the Small Claims Tribunal Act, Cap. 380). Claims up to €15,000 are heard by the Court of Magistrates (Malta) or (Gozo) in its civil jurisdiction (article 47(1) of Cap. 12). Larger claims, and claims that cannot be quantified in advance, are brought by sworn application before the Civil Court, First Hall.
Value the claim realistically before choosing: bodily injury claims with permanent disability usually exceed the lower limits once future earnings are added. The claim must be filed where the defendant resides, Malta or Gozo. If your means are limited, apply for legal aid before filing; court registry fees depend on the value of the claim and are advanced by the plaintiff.
Anticipate the defences. The most common is contributory negligence: if by your own imprudence, negligence or want of attention you contributed to the damage, the court fixes the proportion and reduces your damages accordingly (article 1051). Others are that the event was fortuitous or due to irresistible force (article 1029), that the defendant merely exercised a right within its proper limits (article 1030), that he was rescuing a person in danger and acted without malice or gross negligence (article 1033A), and prescription, which the court will not raise of its own motion but which the defendant almost always pleads.
Where several persons caused the damage, those who acted maliciously are jointly and severally liable; those who were merely negligent answer for their own part, unless the parts cannot be ascertained, in which case you may claim the whole from any one of them (articles 1049 and 1050).
Obtain judgment and enforce it. The court hears witnesses, appoints experts where needed and liquidates the damages in a single sum; it may apportion that sum among several defendants (article 1050(2)). A final judgment is an executive title: if the defendant does not pay, you may apply for executive warrants such as a garnishee order on bank accounts or wages or a warrant of seizure, as provided in Cap. 12.
If the harm was also a criminal offence, the criminal and the civil action are separate: the criminal court punishes, while compensation is demanded before the civil courts (article 3 of the Criminal Code, Cap. 9). A conviction does not by itself award you damages, so do not wait for the criminal case to end before interrupting prescription and filing the civil claim.
What to watch out for
- Letting the two years pass while negotiating. Correspondence with an insurer or the other party's lawyer does not interrupt prescription; only a served judicial act, an acknowledgment or a payment on account does (articles 2128, 2133 and 2134 of the Civil Code).
- Filing the judicial letter at the last moment without checking service. If the act is not served within one month after the last day of the prescriptive period, there is no interruption (article 2130). Give the registry a correct, current address for the defendant.
- Repairing or disposing of the damaged property before it has been documented. Without an expert report, photographs and receipts, the court has no basis on which to liquidate the actual loss under article 1045.
- Expecting compensation for pain, distress or inconvenience. Maltese law compensates patrimonial loss; moral and psychological harm is recoverable only for damage arising from the wilful crimes listed in the proviso to article 1045(1), capped at €10,000 unless regulations provide otherwise.
- Suing only the person with no means. Check whether a parent or guardian, an employer who engaged an incompetent worker, the owner of the animal or building, or an insurer is also liable (articles 1034, 1037, 1040 and 1041), and join them from the start.
- Overlooking your own share of fault. Not wearing a seat belt or helmet, ignoring a warning sign or delaying medical treatment can lead the court to reduce the award in proportion to your contribution (article 1051).
- Claiming in the wrong forum. A claim above €5,000 cannot be brought before the Small Claims Tribunal, and one above €15,000 is outside the Court of Magistrates' competence (article 3 of Cap. 380; article 47 of Cap. 12); a wrong choice costs time and fees, although the act filed still interrupts prescription (article 2129).
Legal basis
Frequently asked questions
How long do I have to claim damages in Malta?
Two years for damage not arising from a criminal offence (article 2153 of the Civil Code). Where the act that caused the damage is a criminal offence, the civil action follows the prescription of the criminal action under the Criminal Code, which ranges from months to twenty years according to the punishment (article 2154(1) of the Civil Code; article 688 of Cap. 9). Claims for damages under a contract are generally barred after five years (article 2156(f)). Interrupt prescription by a served judicial letter well before the deadline.
Can I claim compensation for pain and suffering in Malta?
As a rule, no. Article 1045 of the Civil Code limits damages to actual loss, expenses, lost earnings and loss of future earnings from permanent incapacity. Since 2018 a proviso allows moral and psychological harm to be compensated, but only where the damage arises from a wilful criminal offence of the kinds it lists, namely crimes affecting the dignity of persons and wilful crimes against the person punishable with at least three years' imprisonment, and up to a maximum of €10,000 unless regulations set another limit.
How do Maltese courts calculate loss of future earnings?
The Civil Code only says that the court assesses the sum having regard to the circumstances, the nature and degree of the incapacity and the condition of the injured party (article 1045(2)). In practice the courts multiply the victim's annual earnings by the percentage of permanent disability certified by the court-appointed medical expert and by a multiplier reflecting the remaining working life, and usually deduct a percentage for payment as a lump sum. The method is judge-made, so outcomes vary with the evidence of earnings and age.
What if I was partly to blame for the accident?
You can still claim, but the award is reduced. Under article 1051 of the Civil Code, where the injured party contributed or gave occasion to the damage by imprudence, negligence or want of attention, the court determines in its discretion the proportion of that contribution and reduces the damages accordingly. A finding that you were, for example, one-quarter responsible means you recover three-quarters of the damages liquidated by the court.
Is an employer liable for damage caused by an employee?
Not automatically. The Civil Code makes a person liable for damage caused by someone he employed for any work or service where that person was incompetent, or where he had no reasonable grounds to consider him competent, and the damage resulted from that incompetence (article 1037). The injured party must therefore show a fault in the choice of the worker, or the employer's own fault under articles 1031 to 1033, for instance poor supervision or unsafe systems. The employee who caused the harm remains personally liable.
Who pays if a dog bites me?
The owner of the animal, or the person using it at the time, is liable for the damage it causes, whether the animal was under his charge or had strayed or escaped (article 1040 of the Civil Code). You need to prove the bite, the identity of the owner or keeper and your loss: medical expenses, lost earnings and any permanent disability. File a police report promptly and obtain a medical certificate. Your own provocation of the animal may reduce the award under article 1051.
Which court hears a claim for damages?
It depends on the amount. The Small Claims Tribunal hears money claims not exceeding €5,000 (article 3 of Cap. 380). The Court of Magistrates (Malta) or (Gozo) hears claims not exceeding €15,000 (article 47(1) of Cap. 12). Anything higher goes to the Civil Court, First Hall. Fees and costs are not counted when the value of a small claim is determined. Consumer disputes with traders may instead go to the Consumer Claims Tribunal.
Do I get interest on the damages?
Where the damage consists in being deprived of the use of your own money, it is made good by interest at eight per cent a year (article 1047(1) of the Civil Code). On a debt of a determinate sum, damages for delay consist only in interest at eight per cent, due without proof of loss (articles 1139 and 1140), running from the due date in commercial matters and otherwise from an intimation by judicial act (article 1141). On unliquidated damages, courts generally award interest only from the date the sum is fixed by judgment.
Can several people be made to pay the whole amount?
Yes, in two situations. Persons who maliciously caused the damage together are jointly and severally liable (article 1049). And where the part caused by each cannot be ascertained, you may claim the whole from any one of them even if they were only negligent; that defendant may have the others joined in the case and the court may apportion the sum among them, without affecting your right to recover everything from any one (article 1050).
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