The legal responsibility for roads in Malta does not depend solely on ownership, but on a structured interplay between statutory allocation and the functional character of the road itself. The starting point lies in the legislative division of competences. Maltese law distinguishes between arterial and distributor roads—forming part of the national road network—and other roads of a local nature. The former fall within the remit of central authorities, today primarily Infrastructure Malta, whilst the latter fall within the responsibility of local councils.
This distinction has evolved over time. Earlier regulatory frameworks placed responsibility for arterial and distributor roads within Transport Malta. However, following the coming into force of the Agency for Infrastructure Malta Act (Cap. 588), the construction, upgrading and maintenance of the national road infrastructure were transferred to Infrastructure Malta. The statutory scheme therefore now operates on a dual level: Infrastructure Malta is responsible for roads of national importance, whereas local councils retain responsibility for roads of a local character.
This allocation is reinforced in Article 33 of the Local Government Act (Cap. 363), which provides that local councils are to ensure that roads “li ma tkunx proprjetà privata” are kept in a good state of repair and properly maintained. Properly understood, this phrase does not operate as a rigid reference to ownership in the civil law sense. It does not follow that a road escapes the council’s responsibility merely because it has not been formally expropriated or remains privately owned in title.
The provision must instead be read in light of the functional character of the road. The decisive consideration is whether the road forms part of the public circulation system. Where a road is subject to a diritto di transito pubblico—that is, a right of passage exercised by the general public—it acquires a public character in use, even if ownership has not formally passed to the State. In such circumstances, the road is no longer “private” in the sense contemplated by Article 33. It is private in title, but public in function. It is this functional public character which triggers the maintenance obligation of the local council.
Conversely, where a road remains within a closed private domain—such as an internal access route not open to the public and not subject to any right of passage—it retains its purely private character. In such cases, the statutory duty does not arise.
The role of Infrastructure Malta must, however, be clearly distinguished. Its responsibility is not general, but attaches specifically to those roads which form part of the national network—typically arterial and distributor roads as identified in statutory schedules and administrative classifications. Where a road falls within this category, responsibility for its construction, upgrading and structural maintenance lies with Infrastructure Malta. In such cases, the local council’s role is either residual or excluded altogether, depending on the nature of the works involved. The system is therefore one of functional demarcation, not overlap: each authority is responsible within its designated sphere.
Yet even where a road falls within the responsibility of either Infrastructure Malta or a local council, liability for accidents is not automatic. Maltese law does not impose strict liability on public authorities. The applicable framework remains that of the Civil Code (Cap. 16), which provides that liability arises only where damage is caused through fault—namely, a failure to exercise the prudence, diligence, and care expected of a reasonable person—and where there is a breach of a legal duty giving rise to damage.
The consequence is a structured two-stage analysis. The first question is institutional: whether the road, by classification or by its functional public use, falls within the responsibility of Infrastructure Malta or the local council. The second is delictual: whether, in the circumstances, that authority failed to act with the required level of care in maintaining the road, and whether such failure caused the damage.
The law thus avoids formalism. It does not allow responsibility to be evaded on the basis of title alone, nor does it impose liability merely because a defect exists. Instead, it recognises that roads may be private in ownership yet public in use, and it anchors responsibility in classification, function, and ultimately fault.
