In its judgement on the 28 June 2021, delivered in the names of Gabriel Monterrosa (the "Plaintiff") vs Short Lets Malta Ltd (the "Defendant"), the Small Claims Tribunal (the 'Court'), presided over by Dr Philip M. Magri held, inter alia, that one cannot reasonably claim the full replacement value for new items when all the missing/lost items were necessarily used.

The Plaintiff filed a claim on 9 September, 2019 by which, for all the reasons indicated therein, the plaintiff requested from the Defendant the payment of €990 as compensation for failing to return to him his personal belongings, after the Plaintiff had engaged the Defendant to move his belonging from one apartment to another, which were brokered by the Defendant as a real estate agent.

In its reply, the Defendant held that: 1. The claim was unfounded in law and should be denied. 2. That the Defendant had not assumed any responsibility for the move of the Plaintiff's personal belongings from one address to the other 3. That the Plaintiff is required to furnish the best possible evidence according to the law in support of his claimed amount which amount is being contested.

The Plaintiff  confirmed that he was moving from one apartment to another, and during the same move he would not be present in Malta and thus he had engaged the Defendant to move his belongings after the Defendant confirmed that they may offer this service. Through email correspondence exhibited by the Plaintiff, it transpires that the Plaintiff clearly instructed the Defendant that some of his belongings were kept in two black garbage bags making it clear to the Defendant that they were not rubbish to be dumped given that they might have looked like garbage to be trashed, specifically stating "two garbage bags that are NOT garbage but additional clothes and other necessities".

The email received a reply from Ralph Vella representing the Defendant stating that the contents of the Plaintiff's email were being noted that he "will advise the housekeeping with the things and to have them moved for you then at the penthouse".

In view of the above, the Tribunal held that it is amply clear that the Defendant's plea that it is not to be held responsible for the transport of the plaintiff's belongings from one property to the other is contradicted by the above emails which indicate clearly not only the willingness on the part of the Defendant to move precisely such belongings but also an offer to carry out the same which was then duly accepted by the Plaintiff.

The Tribunal was thus required to determine whether the losses incurred by the Plaintiff can in actual fact be imputed to the Defendant and whether the Plaintiff managed to prove, at least on the basis of a balance of probabilities, the losses alleged by himself. In this regard, the Tribunal notes immediately that, even in view of emails sent, the agreement reached by the parties makes express reference to the existence of two garbage bags with the added caution required when transporting the same.

Furthermore, the housekeeping team confirmed the presence of the two 'garbage' bags upon collection of the Plaintiff's belongings for delivery to the second address. In addition, Ralph Vella stated that he had duly informed one of the housekeeping team members about the two 'garbage' bags. However, the Tribunal could not locate any of this communication in writing, and in fact, this housekeeping team member held that Ralph Vella did not indicate "neither (...) the particular items which we were supposed to collect nor of the particular number of bags which we were supposed to find over there and which we were to move from one apartment to the other".

In addition to the above, the Tribunal noted that at no point in time did the Defendant – through any of its representatives and/or employees – deny the existence of such garbage bags upon gaining access to the property where the Plaintiff left them. Moreover, as stated above, the employees utilised to carry out the said transport of bags confirmed the existence of such 'garbage bags' amongst the bags left by the Plaintiff for collection. However, two team members gave contradicting evidence in that one member held that he carried the garbage bags to the second apartment, whilst another member held that when he entered the property he noticed that "there were rubbish bags on the floor, they were normal black rubbish bags. (...) I actually left the black rubbish bags as well as the food untouched and I did not take them with me because those were the instructions that I received".

To the Tribunal the above evident conflict of evidence is clear proof of the fact that the Defendant did not manage to carry out satisfactorily its agreement to move the Plaintiff's belongings safely from one property to the other. The Tribunal held that it is amply evident that the very fact that the Defendant bound itself to transport all the stated Plaintiff's bags from one property to the other (including therefore the two 'garbage' bags) but that, in the end, the Plaintiff did not receive such two bags and the personal belongings contained in them. It is indicative that mentioned garbage bags and their contents went missing precisely during such days when only the Defendant could/should have had access to them and was therefore responsible for the safe-keeping and transport of such belongings.

In assessing the quantum claimed by the Plaintiff, the Defendant contested same through its submissions whereby it held that the Plaintiff cannot reasonably claim the full replacement value for new items when all his personal belongings were necessarily used. As confirmed by the Plaintiff himself, the amount claimed refers to the replacement value of his belongings as new when the belongings which he lost were evidently used. To this effect, the Tribunal refers, amongst others, to the case "Linda Conroy v. Tubeline Limited" (First Hall Civil Court) whereby the Court decided, that losses suffered to used, personal objects cannot be compensated through the payment of a value which is commensurate to new goods. In line with the principle of restitutio in integrum, in this particular case, the Court proceeded to liquidate the amount due as compensation in the value of 50% of those of the new goods.

The Tribunal deemed it is just and equitable in this case to adopt the same line of measurement and ultimately liquidated the amount of compensation due to the Plaintiff in the sum of €518.03 – equivalent to 50% of the total value of the Plaintiff's perished goods.

In view of the above, the Tribunal decided this case by rejecting all the pleases raised by the Defendant saving for the third plea, whereby the Tribunal accepted the third plea limitedly and in parte  and in line with the above proceeds to uphold the Plaintiff's claim limitedly to the sum of €518.03.

This article was first published in The Malta Independent.

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