Pothole claim fails without proof the road is the agency's
The Court of Appeal held on 3 June 2026 that an insurer and a car owner suing Infrastructure Malta over a pothole had to prove the road fell under the agency. It matters to anyone bringing a road damage claim against a public body.
In Argus Insurance Company (Europe) Limited vs Infrastructure Malta, the Court of Appeal (Inferior Jurisdiction) dismissed an appeal on 3 June 2026 by the insurer and a car owner who sued the agency over damage caused by a pothole. Mr Justice Lawrence Mintoff held that the claimants had to prove the road fell under the agency's responsibility before any fault could be examined. They had not done so, and the claim failed.
The facts
On 17 July 2020 a car insured by the company struck a pothole on the road up to Xemxija, in St Paul's Bay. The insurer and the owner of the car sued the agency before the Court of Magistrates (Malta), first for €6,195.26 and later for a reduced €5,672.75.
The agency pleaded that it was not liable for the damage and that the claimants had to prove it was at fault. The driver testified, but his evidence was struck out because he could not be traced for cross-examination. He had been living in Malta only temporarily.
On 10 March 2025 the Court of Magistrates dismissed the claim. It found that the photographs showed a road in poor repair, but that nothing proved the stretch was an arterial or distributor road in the agency's care.
What the court held
The claim rested on articles 1031 to 1033 of the Civil Code (Chapter 16 of the Laws of Malta), which make a person liable for damage caused through fault or through breach of a duty imposed by law. The claimants had to prove a legal duty on the agency, a breach of it, a causal link and the damage.
Article 5 of the Infrastructure Malta Act (Chapter 588) charges the agency with maintaining roads, but its proviso leaves local roads to local councils. Article 3(2) defines arterial, distributor and local roads by the classification made by the Authority for Transport in Malta. Article 33 of the Local Government Act (Chapter 363) draws the same line from the councils' side.
On appeal, the claimants argued that the agency never pleaded that it was the wrong defendant or that another body ran the road. The court rejected the argument. It held that “l-ebda responsabbiltà għad-danni ma tista’ tinstab jekk l-intimata mhijiex il-persuna responsabbli mit-triq” (no liability for damages can be found if the respondent is not the person responsible for the road).
The court found that the agency's general plea, that it was not liable and that the claimants had to prove fault, already put that link in issue. Its silence about which other body was responsible was not an admission. Proof of the exact spot, from the police report, did not show who was responsible for it.
The first court had noted that the claimants could have called a representative of the transport authority to produce the list of arterial and distributor roads. It refused to fill the gap with the magistrate's own knowledge that the road is busy. Article 562 of the Code of Organization and Civil Procedure (Chapter 12) requires a decision on what is alleged and proved.
On the second grievance, the court held that the first court had no choice but to strike out the driver's evidence, because “id-dritt tal-kontro-eżami huwa dritt sagrosant” (the right of cross-examination is a sacrosanct right). The claimants bore the burden of proof and had to fill the gap left by that ruling with other evidence. They did not.
The court ordered the appellants to pay the costs of both instances jointly and severally.
Why it matters
A claimant suing over a road defect should prove, with evidence from the transport authority, that the road fell under the body sued on the date of the incident. A general denial of liability is enough to put that point in issue. The court also noted that it is always wise to cross-examine a witness who does not live in Malta permanently without delay.
Where it sits
The case applies the elements of tort under articles 1031 to 1033 of the Civil Code: fault measured against the bonus paterfamilias, the prudent person of ordinary diligence, under article 1032(1), a causal link and damage. In a claim outside contract, the claimant carries the heavier burden, because there is no earlier obligation from which a breach can be shown.
The first court, whose reasoning the appeal court set out, relied on the Court of Appeal (Inferior Jurisdiction) (23 January 2004) for the rule that public bodies owe the same diligence as any private person. It relied on the First Hall of the Civil Court (3 October 2003) for the duty of authorities to keep roads free of hazards.
It also relied on the First Hall of the Civil Court (9 October 2003) for the rule that the injured party must prove the causal link. The appeal court decided the two grievances on the burden of proof and the right to cross-examine, without naming further authorities.
Source
Court of Appeal (Inferior Jurisdiction), 3 June 2026, 339/2021/1