In Maltese law, the legal provisions that deal with the right of an injured party to claim for compensation stemming out from a negligent act of a third party or for instance from the lack of observance of regulations, are found in the Civil Code, Chapter 16 of the Laws of Malta. As a matter of fact, the prevalent article of the law which clearly resonates this, is article 1032 of the Code which, I quote: “a person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias”.

As a consequence, if a person does not use such prudence, diligence and attention and commits personal injury to a third party, their actions, or omissions, will invariably constitute what is called culpable negligence. The latter brings about a situation where if the person is at fault, then such person shall be liable for any damage arising therefrom and may also be exposed to criminal proceedings in terms of article 225 or 226 of the Criminal Code, Chapter 9 of the Laws of Malta. The former article brings about a situation where the victim dies as a consequence of such accident, whilst the latter brings about a situation where the victim suffers bodily harm.        

This article deals with limitations by time of an action that may be brought forward in such events with a special focus on those actions, which at source, are construed to be ex delicto cases, i.e. the very basis of the claim gives rise both to a criminal action and also a civil action. By way of example, a person who through carelessness, imprudence and non-observance of the laws and regulations, causes the death or bodily harm to a person whilst driving at excessive speed.  The natural question that arises and that begs for an answer is: what is the time-limit within which such “civil” action claiming for compensation has to be instituted?

The question that every lawyer must ask is: does the action or omission complained of arise from a criminal action or not? Yes, the law draws an important distinction when it deals with the prescriptive period applicable at law. In other words, article 2153 of the Civil Code provides that if the action or omission does not arise from a criminal offence, then the time limit within which a victim must institute proceedings to claim for compensation is that of two (2) years.

On the other hand, if the act or omission complained of by the victim arises out of a criminal action, the applicable prescriptive period is absorbed by the prescriptive period established in the Criminal Code and NOT the Civil Code, albeit the victim is dealing with a civil claim for compensation in a Civil Court basing his/her claim in terms of the Civil Code dispositions. This is clearly and unequivocally enunciated in article 2154 of the Civil Code under the heading “Of Prescription”:

“With regard to the prescription of civil actions for damages arising from criminal offences, the rules laid down in the Criminal Code relating to the prescription of criminal actions shall be observed”.

What is the difference? 

The difference between the two legal regimes is considerable because the prescriptive period in the Criminal Code is longer than that established in the Civil Code. It will no longer remain within the domain of the two-year (2) prescriptive period but it entirely depends on whether the act or omission complained of gives rise to an involuntary homicide or involuntary bodily harm. In the latter, the law further qualifies the personal damages sustained by the victim as grievous in terms of article 216 or far more grievous in terms of article 218 of the Criminal Code – in all cases the duration is prolonged and the dynamics of calculating the time becomes crucial and jurisprudence on the matter show that it has, many a time, became the bone of contention in contentious litigation.

This is primarily because different interpretations are given regarding when the prescriptive period in such cases kicks off. Is it from the date on which the offence was committed, or from the date when the accused has been sentenced or otherwise?

At times, given the complexity of certain cases and also given the duration required from a medico-legal assessment’s point of view [often necessitating a period of time for medical experts to properly assess a given medical situation before reporting on the requisite percentage of disability of the victim] a number of months indispensably run until medical experts are able to report any progress, or otherwise of the patient. 

The article of the law which brings about a whole world of difference is article 687(2) of the Criminal Code, which stipulates:

“The period of prescription in respect of all criminal offences shall be suspended from the moment a charge and, or bill of indictment is served on the person charged or accused until such time as a final and definitive judgment is delivered in the proceedings which commenced as a result of such charge or bill of indictment”.

Given that the Civil Code itself has subjected its applicability to the norms established in the Criminal Code in terms of the aforementioned article 2154, then the entire corpus of law, both substantive and procedural, becomes applicable in any given circumstance where the nature of the claim has an ex delicto component at its very basis. Therefore, the prescriptive period starts to run from the day that a “final and definitive judgement” is delivered, meaning, when the case becomes incontrovertibly decided.

This article was penned by Dr Vincent Micallef, Managing Partner at Vincent Micallef & Associates.