A planned rebuild leaves pothole liability with the council

The Court of Appeal (Superior Jurisdiction) held on 23 July 2026 that the Siġġiewi Local Council was liable for a motorcycle crash caused by a pothole on a local road, although Infrastructure Malta had planned to rebuild that road.

Chief Justice Mark Chetcuti, Mr Justice Christian Falzon Scerri and Madam Justice Josette Demicoli rejected the council's pleas that the rider was at fault and that the agency was responsible. The court allowed the appeal only on the multiplier and reduced the damages from €74,873 to €68,156.40.

The facts

In C.K. vs L-Agenzija Ghal Infrastruttura Malta, the plaintiff was riding a motorcycle towards Siġġiewi in May 2020 when he hit a pothole, lost control and fell. He sued Infrastructure Malta and the Siġġiewi Local Council, arguing that both had failed to keep the road safe. Each defendant pleaded that the road was the other's responsibility, and the council also blamed the rider's lack of attention.

The First Hall of the Civil Court found the council wholly liable, released the agency from the suit and awarded €74,873. The council appealed on six grounds, including contributory fault, the release of the agency, the multiplier, proof of income and costs. The judgment was delivered in English.

What the court held

On fault, the court held that every driver must adjust to the state of the road and see what is in plain view, and that a lack of diligence carries a presumption of fault under article 1032(1) of the Civil Code (Chapter 16 of the Laws of Malta). The council still had to show that the crash was due to the rider's imprudence, and it did not.

A police constable, a witness who reached the scene and the council's own executive secretary described cracks, potholes and a sudden drop in the road level just after a bend. The court found the council's points about GPS use, the rider's unfamiliarity with the road, his weight and the scooter's small engine speculative, because no evidence supported them.

On responsibility, the court read article 33(1)(a) of the Local Government Act (Chapter 363) with articles 5(1)(c) and 26 of the Agency for Infrastructure Malta Act (Chapter 588). Upkeep of a local road falls to the council and includes patching and resurfacing, but not reconstruction. Article 26(1)(iii) directs claims over a local road against the council, unless the works needed are of an "extraordinary nature", in which case the agency answers.

The agency's emergency allocation of €1.5 million in December 2020 and its reconstruction works in 2021 did not prove that the works were extraordinary. The court held: "A Local Council's ordinary responsibility for roads falling within its locality is not displaced simply because another public entity carries out works on the road."

On damages, the court held that a permanent disability, assessed at 10% by the court-appointed medical referee, can reduce earning capacity even where the injured person keeps working. But the multiplier is not a simple subtraction of the claimant's age at the accident from a retirement age of 65. It must allow for the chances and changes of life.

For a claimant in his 30s, a multiplier of 32 years made no such allowance, and the court reduced it to 29. The income records filed with the plaintiff's affidavit were enough, although better proof could have been produced. Under article 223 of the Code of Organization and Civil Procedure (Chapter 12), the plaintiff pays the first-instance costs of suing the agency and 10% of the appeal costs.

Why it matters

A person hurt by a defect on a local road should sue the local council, and joining Infrastructure Malta carries a costs risk unless there is evidence that extraordinary works were due. A council cannot rely on a pending rebuild to escape liability for patching in the meantime. Lawyers computing future loss should expect a multiplier that covers the whole working life to be trimmed.

Where it sits

The claim is the actio aquiliana: liability for fault under articles 1031 and 1032 of the Civil Code, with damages under article 1045, which covers actual loss and loss of future earnings from permanent incapacity. A defendant who pleads that the injured person was at fault must prove that fault and its link to the harm.

On its power to reweigh the facts, the court cited the Court of Appeal (14 December 2018) and (27 April 2023). On the duty to keep a lookout, it cited the Court of Appeal (29 January 2016). On volenti non fit iniuria, it cited Gasanmamo Insurance Limited vs Kunsill Lokali Ħal Kirkop et, decided by the First Hall of the Civil Court on 28 January 2016.

On a council's general duty of care, it cited the Court of Appeal (2 September 2025) and distinguished the Court of Appeal (8 April 2025), where defective paving works by the transport authority made both the authority and the council liable. On the multiplier, it followed the Court of Appeal (16 December 2019) and (25 April 2024), and on disability and earning capacity the Court of Appeal (26 October 2022).

Source

Court of Appeal (Superior Jurisdiction), C.K. vs L-Agenzija Ghal Infrastruttura Malta, 23 July 2026: 585/2021/1