Cap. 588 Art. 26Liability for injury or damage.    Cap. 363.

(1) In any action in respect of injury or damage sustained by any person or property resulting from the failure to maintain a road, such actions shall be instituted against:

(i) the Authority for Transport in Malta in relation to any injury or damage sustained by any person or property at the time when before the order in article 27(1) the relevant road fell within its responsibility in terms of applicable legislation;

(ii) the Agency in relation to any injury or damage sustained by any person or property at the time when after the order in article 27(1) the relevant road is within its responsibility in terms of applicable legislation; and

(iii) a local council in relation to any injury or damage sustained by any person or property at the time when the relevant road is within its responsibility in terms of applicable legislation and the orders in article 27(2) and (3) respectively as applicable:

Provided that where a road is classified as a local road in accordance with applicable legislation and is to any extent the responsibility of a local council in terms of the Local

Government Act, the responsibility for such local road shall not, to the extent of such responsibility, be the function of the respective local council if the works are of an extraordinary nature and in such case the Agency will be responsible thereof.

(2) In either of the cases mentioned in sub-article (1) above in relation to the Authority for Transport in Malta, the Agency or local council as the case may be, it shall be a defence to prove that:

(a) the Authority for Transport in Malta, the Agency or local council, as the case may be, had taken such care as in the circumstances was reasonably required to secure that the part of the road to which the action relates was not dangerous for traffic; or

(b) that the injury or damage resulted -

(i) from works carried out on or under that part of the road to which the action relates; and

(ii) from an event which occurred before the completion of the re-instatement or making good of that part of the road in accordance with any relevant requirement.

(3) For the purposes of a defence under sub-article (2)(a) above, the court shall in particular have regard to the following:

(a) the character of the road, and the traffic which was reasonably expected to use it;

(b) the standard of maintenance appropriate for a road of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the road;

(d) whether the Authority for Transport in Malta, Agency or local council, as the case may be, knew or could reasonably have been expected to know that the condition of the part of the road to which the action relates was likely to cause danger to users of the road;

(e) where the Authority for Transport in Malta, the Agency or local council, as the case may be, could not reasonably have been expected to repair that part of the road before the cause of action arose, what warning notices of its condition had been displayed:

Provided that for the purposes of such a defence, it shall not be relevant to prove that the Authority for Transport in Malta, the Agency or local council, as the case may be, had arranged for an authorised contractor to carry out or supervise the maintenance of the part of the road to which the action relates, unless it is also proved that the Authority for Transport in Malta, the Agency or local council as the case may be, had given that contractor written instructions with regard to the maintenance of the road and that it had carried out the instructions.

Part IV: Transitory Provisions