Causation

Barazani v. Bezeq

Case/docket number: 
CFH 5712/01
Date Decided: 
Monday, August 11, 2003
Decision Type: 
Appellate
Abstract: 

Facts:    Respondent 1 (hereinafter: Bezeq) advertised an international dialing service (hereinafter: the Service), and represented that a customer would be charged only for the exact amount of time that he used Service. In practice, it turned out that the method that Bezeq used for its calculations resulted in overcharging the users of the Service relative to what was expected according to the advertisement.

 

                The Petitioner, who used the Service supplied by Bezeq, but who had not seen the said advertisement, initiated a suit in the District Court for pecuniary damages against Bezeq. He claimed that the advertisement was one “liable to mislead a consumer” under sec. 2 (a) o the Consumer Protection Law, 5741-1981 (hereinafter: the Law), in regard to the actual cost of international calls. He also requested that the suit be certified as a class action.

 

                The District Court certified the suit as a class action. However, on appeal, the Supreme Court reversed that decision, based upon the provisions of sec. 31 (a) of the Law, according to which an act or omission in contravention of sec. 2 of the Law “shall be treated as a tort under the Civil Wrongs Ordinance [New Version]”. Therefore, and despite the finding that the advertisement was one that was “liable to mislead a consumer”, the Court applied the causal-link test established by the Civil Wrongs Ordinance [New Version] (hereinafter: the Ordinance), and found that since the Petitioner had not been exposed to Bezeq’s misleading advertisement, a causal link was not established between the advertisement and the damage putatively caused him. That being so, the Court held that the Petitioner did not have a personal cause of action against Bezeq under sec. 2 (a) of the Law, and in any case, was not a proper plaintiff in a class action.

 

                The Further Hearing focused upon the question whether or not the prohibition of misleading under sec. 2 (a) of the Law constitutes a “regular tort” like every tort in the Ordinance, subject to the doctrines established under the Ordinance, among them the causal-link doctrine.

 

Held:   The Supreme Court held:

 

A.            (1)          The provisions of sec. 2 (a) of the Law, prohibiting deceit, create a prohibition upon conduct. A “dealer” contravenes that prohibition even if the thing that he does by act or omission is “liable to mislead”, that is, whether or not a person was actually misled by that thing that he did. The standard of conduct required by the provisions of this section is one that is higher than that required by many statutes, which require a direct causal link between an act and a result – the harm caused the victim – whereas sec. 2 (a) prohibits conduct, as such, even if it does not lead to harm. That requirement is intended to protect consumers and ensure that they receive reliable information about the goods or services being offered, so that they can make informed choices about whether or not to make the transaction.

 

(2)          Under sec. 31 (a) of the Law, an act or omission proscribed by sec. 2(a) shall be treated as a tort under the Ordinance. Nothing in the language of sec. 31(a) of the Law would show that the tort under sec. 2 (a) removes it from the fundamental principles or the doctrines of the Ordinance, and nothing therein might show that a consumer is entitled to compensation merely because a dealer contravened a provision of the Law. On the contrary, the Law unconditionally refers to the provisions of the Ordinance.

 

(3)          In addition to the clear language of the Law, expediency also argues that the sec. 2 (a) of the Law establishes a tort like any other tort under the Ordinance, for if those same acts and omissions external to the Ordinance are tortious in nature, it is but natural that we should employ the same traditional, familiar doctrines that tort law created and developed over so many years such that they have become foundational to the legal system, subject, of course, to special, exceptional cases

 

(4)          Nevertheless, there is a difference between the native torts of the Ordinance and those external to it that are treated as torts under the Ordinance. A tort external to the Ordinance should be scrutinized carefully in order to determine whether or not a particular doctrine of the Ordinance is compatible with the elements, nature and construction of the external tort.

 

B.            (1)          In accordance with the causal-link doctrine in sec. 64 of the Ordinance, there must be a causal connection between a person’s act or omission – an act or omission that constitutes a tort – and the harm caused to the victim, for which he demands compensation. In the instant case, there was no causal connection between the advertisement and the “harm” caused to the Appellant, inasmuch as the Appellant did not read that advertisement, and in any case, was not influenced by it and did not rely upon it. While Bezeq perpetrated a tort by publishing that advertisement to the public, the existence of a tort is insufficient to entitle a person to compensation. Rather, that person must show that he was harmed as a result of that tort, and that precondition was not met in regard to the Appellant.

 

(2)          Similarly, the compensation doctrine, enunciated in sec. 76 of the Ordinance, states that a person is not entitled to compensation except in regard to damage that arose from a tort. In regard to compensatory relief, the Law requires that the plaintiff prove the damage arising from the misrepresentation, that is, the existence of actual deceit, and an act arising from that deceit. In the circumstances of this case, the publication of something that might tend to mislead – the advertisement itself – is not sufficient to for a consumer to acquire a right to compensation if he suffered no actual damage. The rule is that damages will not be awarded unless harm was caused, and damages will be awarded only to the extent of the harm caused. In the absence of an express, unequivocal provision granting a person damages for virtual harm without the proof of actual harm, it is difficult to imagine that a court will award damages. Such significant creativity is intended for the legislature, and not the courts.

 

(3)          The causal connection (both factual and legal) required under sec 2 (a) of the Law does not require a consumer’s explicit reliance upon the representation presented by the dealer. Unlike other legal provisions, which explicitly require a causal connection of reliance, it is possible that a consumer will not directly rely upon the dealer’s representation, and the required causal connection will, nevertheless, exist, that is, that the dealer’s representation “was the cause or one of the causes of the damage”, as stated in sec. 64 of the Ordinance. That would be the case, for example, where it can be shown that an advertisement – capable of misleading the consumer – that was published by a dealer, initiated a factual chain of events that ultimately caused damage to the consumer. In such a case, it would be appropriate to interpret the concept of reliance broadly, such that it would not be restricted exclusively to direct reliance.

 

(4)          However, there must be an appropriate causal connection between the misleading publication and the injury that a consumer incurs. The fact that the purchase of the goods or services occurred after the publication is not, in and of itself, sufficient to show a causal connection between the potentially misleading publication and the consumer’s acquisition of the advertised goods or services. There must be an appropriate causal connection between the two occurrences, and that link will be deduced from the circumstances of each and every case with the help of the relevant evidence.

 

C. A class action is, in effect, an extension of the personal right to sue, and in the absence of a personal right to bring suit, there can be no class action. The import and scope of the personal suit will only be influenced marginally, if at all, by the class action. A class action does not grant a consumer an independent cause of action. It is merely a procedural tool for joining individual suits in a single proceeding. Class actions were added to the Law some thirteen years after its enactment, and its addition to the Law merely expanded the personal suit – procedurally – into many personal suits, but the principles of the personal suit remained unchanged. Therefore, sec. 2 (a) of the Law should be construed as it was prior to the addition of class actions to the Law, that is, without reference to such a class action.

 

D.            (Justice T. Strasberg-Cohen, dissenting):

 

(1)          The phrase “shall be treated as a tort under the Civil Wrongs Ordinance” should be construed as establishing a new cause of action that is like a tort. This cause of action is not identical to a tort, but is equivalent to a tort in the sense that it applies the same doctrines of the Ordinance to the act or omission – in the present case, the compensation and causal link doctrines. However, it is a cause of action that is unique to this Law. It is substantively independent, and must be construed in its own context, in light of the objective it was intended to serve, while taking the said doctrines into account, and which must be given content that corresponds to the objectives of the Law and its enforcement in the framework of a class action.

 

(2)          For the purpose of establishing a cause of action for compensation for damage caused by a publication liable to mislead, it must be shown, prima facie, that the publication was liable to mislead, that damage was incurred, and that there is a factual and legal causal connection between the publication and the damage. However, even in the absence of the consumer’s reliance upon the potentially misleading publication, there may be a causal link between the publication and the damage. This is so because, first, establishing a prohibition upon conduct that is liable to mislead without recognizing the remedy of compensation for its contravention without proof of actual deception, renders the Law’s primary prohibition lacking any real civil remedy. Second, there is little possibility that a consumer will devote significant effort and money solely for the purpose of obtaining a restraining order for the benefit of the general public. Third, over the years that the Law has been in force, the criminal sanction has been applied with measured restraint, and it would seem that the criminal sanction cannot provide significant deterrence for powerful dealers that expect to garner huge profits from misleading the public, and the same is true of administrative sanctions. Fourth, an approach that would require actual deception in order to obtain compensatory relief would limit the scope of a dealer’s liability only to those consumers who could actually prove that they were indeed misled by the dealer’s representations, and would make deception worthwhile from the perspective of the dealer. Fifth, a construction that would grant relief only to those consumers who were actually deceived would create an artificial distinction between the consumer public that used the goods or services that were the subject of the misleading advertising, but who were not exposed to it, and the consumer public who were exposed to the misleading information. Sixth, in other cases in the past, the Supreme Court did not hesitate to expand the available types of relief beyond those set out in a law, in order not to eviscerate the law. Seventh, the Law establishes other prohibitions that do not require proof of reliance, the violation of which grants the consumer a broad right to compensation. There is little reason to granting an independent remedy of compensation, which includes granting broad discretion to the court, for the violation of those prohibitions, while not doing so in regard to the Law’s central prohibition – the prohibition upon misrepresentation.

 

(3)          The tort perpetrated by publishing something liable to mislead does not require reliance in order for the consumer to be entitled to compensation for damage incurred due to the publication, and it is not tied to the demand of reliance. Had the legislature intended to limit the prohibition of deceit to one of the torts requiring reliance, one would expect that it would have done so explicitly. Reliance is not required by the language of the Law or by its objective for the purpose of the existence of a causal connection. Thus, there can be a causal connection without reliance.

 

(4)          Holding that there is no requirement that the consumer rely upon the misleading publication does not obviate the need for a causal connection, and in the instant case, the representation made by the dealer should be deemed a binding promise to the consumer public that requires that it act in accordance with the promise. That promise bestows a right upon the consumer, and places the dealer under an obligation in regard to the consumer public. If the dealer does not meet the obligation it undertook by means of the advertisement, and charges more than what was promised in the advertisement, it breaches its duty, and as a consequence of that breach, the consumer incurs damage. Therefore, even if the consumer was not exposed to the misleading publication, and did not change his behavior in regard the use of the product or service, he will still be deemed harmed, since the price he was charged for the product or the service was higher than the price at which he was entitled to purchase the product or service.

 

(5)          The consumer incurs injury in the form of a “price differential”, which is a real loss. Appropriate construction of the required causality would see this injury as connected to the breach of the proscribed misrepresentation, as due to the misleading advertisement and the difference between it and the manner in which the dealer actually acted, the consumer suffered injury. Such a construction would meet the requirement of a causal link, both factually and legally. Factually, the said injury caused to the consumer is a consequence of the fact that the dealer made a representation that it did not honor. Legally, the injury is causally related to the representation under the foreseeability test, in that when a dealer makes a false representation, it foresees that charging contrary to the representation will cause harm due to the “price differential”, under the risk test, since that harm falls within the scope of risk of the dealer’s act, and under the common-sense test, by which we examine the overall actions of the tortfeasor and their contribution to the harmful result.

 

E. (Justice E. Mazza, dissenting):

 

(1)          It is possible and proper to restrict the application of traditional tort law to consumer causes of action. Such restriction is clearly required by the significant, substantive difference between the purpose of consumer torts and the purpose of regular torts.

 

(2)          The consumer laws of deceit must contend with the requirements of reliance and causality differently than tort law. Instead of the personal reliance of each and every consumer – that of traditional tort law – we should adopt a doctrine that recognizes “constructive reliance” of the consumer public to which the advertiser directed its misleading advertisement, while instead of requiring proof of a factual causal connection between the deception and the injury caused to each of the complaining consumers, we should adopt a doctrine that recognizes a “consumer causal link” that would be inferred from the merger of the potentially misleading publication and the intention of the advertiser that the advertisement reach the consumers, mislead them, and thus influence their conduct.

 

(3)          Consumer deception would give rise to a (personal or class) cause of action for monetary relief upon the fulfillment of three elements: an offending publication, injury, and a “consumer causal link”. As opposed to this, we should also recognize a defense that would be available to the advertiser if he can show that the plaintiff was aware of the true facts, and that the offending advertisement could not, therefore, negatively influence his situation.

 

(4)          The reliance requirement undermines the objectives of consumer protection laws –leveling the playing field for the parties; increasing personal autonomy; the concept of consumer sovereignty; protection of the public welfare and of social rights; advancing commercial fairness; protecting the credibility of the local market and public confidence in the social regime – and it frustrates their realization. Once a potential to mislead is proved, and it is shown that the advertiser indeed intended that the misleading advertisement reach the public and influence its consumer conduct, we should properly hold that there is constructive consumer reliance upon the misleading advertisement. The question whether the dealer actually achieved its purpose, i.e., that the misleading publication actually reached its audience and actually influenced it, is of limited importance.

 

F. (Justice D. Dorner, dissenting):

 

(1)          The Law, which intervenes in contracts between unequal parties, and subjects the stronger party – the supplier – to an increased duty of fairness towards the weaker party – the consumer – is firmly anchored in the established doctrines of contract law. Many consumer transactions are anchored in the accepted contractual doctrines under which if a supplier charges a higher price than the correct, advertised price, consumers are entitled to a refund of the difference. In the reality created by those doctrines, and in which consumers actually operate, consumers trust suppliers without verifying that each and every transaction conforms to the advertised price.

 

(2)          A supplier’s advertisement of a specific price creates a consumer right not to pay a higher price. If the supplier charges a higher price, that will, in any event, constitute a breach of contract that would give rise to monetary relief even for consumers who were not exposed to the advertisement.

 

(3)          That entitlement can be grounded at least three ways. The first deems the dealer’s publication about the price an irrevocable offer to the public, which can be accepted by the objective performance of its conditions, while the supplier is bound to the publicized price, and provides an opportunity for the public to purchase the product or service for a price that will not be higher. In accepting the offer, the parties agree to the published price, and the supplier must refund any additional amount charged. The second approach deems the contract to have an implied term under which the supplier undertakes not to charge the consumer more than the advertised price. Such a term reflects the expectations of the parties. Overcharging constitutes a breach of that term. The third approach would classify such overcharging – particularly if it targets only consumers who were not exposed to the publication – as a breach of contractual good faith.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Author
concurrence
Author
dissent
Author
dissent
Author
dissent
Full text of the opinion: 

In the Supreme Court

CFH 5712/01

 

 

Before:                                                            The Hon. Chief Justice A. Barak

                                                            The Hon. Deputy Chief Justice T. Orr

                                                            The Hon. Justice E. Mazza

                                                            The Hon. Justice M. Cheshin

                                                            The Hon. Justice T. Strasberg-Cohen

                                                            The Hon. Justice D. Dorner

                                                            The Hon. Justice D. Beinisch

 

The Petitioner:                                     Yosef Barazani

 

                                                                        v.

 

The Respondents:                               1. Bezeq – Israeli Telecommunications Company Ltd.

                                                            2. Israel Consumer Council    

 

A Further Hearing on the judgment of the Supreme Court of July 2, 2001 in CA 1977/97 by the Hon. Chief Justice A. Barak and Justices T. Strasberg-Cohen and I. Englard

 

Date of submission of briefs: 17 Shevat 5763 (Jan. 20, 2003)

Attorney for the Petitioner:                Avigdor Feldman, Adv.

 

Attorneys for Respondent 1:              Avner Gabbai, Adv.

                                                            Gil Lotan, Adv.

                                                            Shiri Kasher-Hitin, Adv.

Attorney for Respondent 2:                Prof. Sinai Deutch, Adv.

Facts:  Respondent 1 (hereinafter: Bezeq) advertised an international dialing service (hereinafter: the Service), and represented that a customer would be charged only for the exact amount of time that he used Service. In practice, it turned out that the method that Bezeq used for its calculations resulted in overcharging the users of the Service relative to what was expected according to the advertisement.

            The Petitioner, who used the Service supplied by Bezeq, but who had not seen the said advertisement, initiated a suit in the District Court for pecuniary damages against Bezeq. He claimed that the advertisement was one “liable to mislead a consumer” under sec. 2 (a) o the Consumer Protection Law, 5741-1981 (hereinafter: the Law), in regard to the actual cost of international calls. He also requested that the suit be certified as a class action.

            The District Court certified the suit as a class action. However, on appeal, the Supreme Court reversed that decision, based upon the provisions of sec. 31 (a) of the Law, according to which an act or omission in contravention of sec. 2 of the Law “shall be treated as a tort under the Civil Wrongs Ordinance [New Version]”. Therefore, and despite the finding that the advertisement was one that was “liable to mislead a consumer”, the Court applied the causal-link test established by the Civil Wrongs Ordinance [New Version] (hereinafter: the Ordinance), and found that since the Petitioner had not been exposed to Bezeq’s misleading advertisement, a causal link was not established between the advertisement and the damage putatively caused him. That being so, the Court held that the Petitioner did not have a personal cause of action against Bezeq under sec. 2 (a) of the Law, and in any case, was not a proper plaintiff in a class action.

            The Further Hearing focused upon the question whether or not the prohibition of misleading under sec. 2 (a) of the Law constitutes a “regular tort” like every tort in the Ordinance, subject to the doctrines established under the Ordinance, among them the causal-link doctrine.

            Held:  

The Supreme Court held:

  1. (1)        The provisions of sec. 2 (a) of the Law, prohibiting deceit, create a prohibition upon conduct. A “dealer” contravenes that prohibition even if the thing that he does by act or omission is “liable to mislead”, that is, whether or not a person was actually misled by that thing that he did. The standard of conduct required by the provisions of this section is one that is higher than that required by many statutes, which require a direct causal link between an act and a result – the harm caused the victim – whereas sec. 2 (a) prohibits conduct, as such, even if it does not lead to harm. That requirement is intended to protect consumers and ensure that they receive reliable information about the goods or services being offered, so that they can make informed choices about whether or not to make the transaction.

 

(2)        Under sec. 31 (a) of the Law, an act or omission proscribed by sec. 2(a) shall be treated as a tort under the Ordinance. Nothing in the language of sec. 31(a) of the Law would show that the tort under sec. 2 (a) removes it from the fundamental principles or the doctrines of the Ordinance, and nothing therein might show that a consumer is entitled to compensation merely because a dealer contravened a provision of the Law. On the contrary, the Law unconditionally refers to the provisions of the Ordinance.

 

(3)        In addition to the clear language of the Law, expediency also argues that the sec. 2 (a) of the Law establishes a tort like any other tort under the Ordinance, for if those same acts and omissions external to the Ordinance are tortious in nature, it is but natural that we should employ the same traditional, familiar doctrines that tort law created and developed over so many years such that they have become foundational to the legal system, subject, of course, to special, exceptional cases

 

(4)        Nevertheless, there is a difference between the native torts of the Ordinance and those external to it that are treated as torts under the Ordinance. A tort external to the Ordinance should be scrutinized carefully in order to determine whether or not a particular doctrine of the Ordinance is compatible with the elements, nature and construction of the external tort.

B.        (1)        In accordance with the causal-link doctrine in sec. 64 of the Ordinance, there must be a causal connection between a person’s act or omission – an act or omission that constitutes a tort – and the harm caused to the victim, for which he demands compensation. In the instant case, there was no causal connection between the advertisement and the “harm” caused to the Appellant, inasmuch as the Appellant did not read that advertisement, and in any case, was not influenced by it and did not rely upon it. While Bezeq perpetrated a tort by publishing that advertisement to the public, the existence of a tort is insufficient to entitle a person to compensation. Rather, that person must show that he was harmed as a result of that tort, and that precondition was not met in regard to the Appellant.

            (2)        Similarly, the compensation doctrine, enunciated in sec. 76 of the Ordinance, states that a person is not entitled to compensation except in regard to damage that arose from a tort. In regard to compensatory relief, the Law requires that the plaintiff prove the damage arising from the misrepresentation, that is, the existence of actual deceit, and an act arising from that deceit. In the circumstances of this case, the publication of something that might tend to mislead – the advertisement itself – is not sufficient to for a consumer to acquire a right to compensation if he suffered no actual damage. The rule is that damages will not be awarded unless harm was caused, and damages will be awarded only to the extent of the harm caused. In the absence of an express, unequivocal provision granting a person damages for virtual harm without the proof of actual harm, it is difficult to imagine that a court will award damages. Such significant creativity is intended for the legislature, and not the courts.

            (3)        The causal connection (both factual and legal) required under sec 2 (a) of the Law does not require a consumer’s explicit reliance upon the representation presented by the dealer. Unlike other legal provisions, which explicitly require a causal connection of reliance, it is possible that a consumer will not directly rely upon the dealer’s representation, and the required causal connection will, nevertheless, exist, that is, that the dealer’s representation “was the cause or one of the causes of the damage”, as stated in sec. 64 of the Ordinance. That would be the case, for example, where it can be shown that an advertisement – capable of misleading the consumer – that was published by a dealer, initiated a factual chain of events that ultimately caused damage to the consumer. In such a case, it would be appropriate to interpret the concept of reliance broadly, such that it would not be restricted exclusively to direct reliance.

            (4)        However, there must be an appropriate causal connection between the misleading publication and the injury that a consumer incurs. The fact that the purchase of the goods or services occurred after the publication is not, in and of itself, sufficient to show a causal connection between the potentially misleading publication and the consumer’s acquisition of the advertised goods or services. There must be an appropriate causal connection between the two occurrences, and that link will be deduced from the circumstances of each and every case with the help of the relevant evidence.

C. A class action is, in effect, an extension of the personal right to sue, and in the absence of a personal right to bring suit, there can be no class action. The import and scope of the personal suit will only be influenced marginally, if at all, by the class action. A class action does not grant a consumer an independent cause of action. It is merely a procedural tool for joining individual suits in a single proceeding. Class actions were added to the Law some thirteen years after its enactment, and its addition to the Law merely expanded the personal suit – procedurally – into many personal suits, but the principles of the personal suit remained unchanged. Therefore, sec. 2 (a) of the Law should be construed as it was prior to the addition of class actions to the Law, that is, without reference to such a class action.

D. (Justice T. Strasberg-Cohen, dissenting):

     (1)   The phrase “shall be treated as a tort under the Civil Wrongs Ordinance” should be construed as establishing a new cause of action that is like a tort. This cause of action is not identical to a tort, but is equivalent to a tort in the sense that it applies the same doctrines of the Ordinance to the act or omission – in the present case, the compensation and causal link doctrines. However, it is a cause of action that is unique to this Law. It is substantively independent, and must be construed in its own context, in light of the objective it was intended to serve, while taking the said doctrines into account, and which must be given content that corresponds to the objectives of the Law and its enforcement in the framework of a class action.

     (2)   For the purpose of establishing a cause of action for compensation for damage caused by a publication liable to mislead, it must be shown, prima facie, that the publication was liable to mislead, that damage was incurred, and that there is a factual and legal causal connection between the publication and the damage. However, even in the absence of the consumer’s reliance upon the potentially misleading publication, there may be a causal link between the publication and the damage. This is so because, first, establishing a prohibition upon conduct that is liable to mislead without recognizing the remedy of compensation for its contravention without proof of actual deception, renders the Law’s primary prohibition lacking any real civil remedy. Second, there is little possibility that a consumer will devote significant effort and money solely for the purpose of obtaining a restraining order for the benefit of the general public. Third, over the years that the Law has been in force, the criminal sanction has been applied with measured restraint, and it would seem that the criminal sanction cannot provide significant deterrence for powerful dealers that expect to garner huge profits from misleading the public, and the same is true of administrative sanctions. Fourth, an approach that would require actual deception in order to obtain compensatory relief would limit the scope of a dealer’s liability only to those consumers who could actually prove that they were indeed misled by the dealer’s representations, and would make deception worthwhile from the perspective of the dealer. Fifth, a construction that would grant relief only to those consumers who were actually deceived would create an artificial distinction between the consumer public that used the goods or services that were the subject of the misleading advertising, but who were not exposed to it, and the consumer public who were exposed to the misleading information. Sixth, in other cases in the past, the Supreme Court did not hesitate to expand the available types of relief beyond those set out in a law, in order not to eviscerate the law. Seventh, the Law establishes other prohibitions that do not require proof of reliance, the violation of which grants the consumer a broad right to compensation. There is little reason to granting an independent remedy of compensation, which includes granting broad discretion to the court, for the violation of those prohibitions, while not doing so in regard to the Law’s central prohibition – the prohibition upon misrepresentation.

(3)   The tort perpetrated by publishing something liable to mislead does not require reliance in order for the consumer to be entitled to compensation for damage incurred due to the publication, and it is not tied to the demand of reliance. Had the legislature intended to limit the prohibition of deceit to one of the torts requiring reliance, one would expect that it would have done so explicitly. Reliance is not required by the language of the Law or by its objective for the purpose of the existence of a causal connection. Thus, there can be a causal connection without reliance.

(4)   Holding that there is no requirement that the consumer rely upon the misleading publication does not obviate the need for a causal connection, and in the instant case, the representation made by the dealer should be deemed a binding promise to the consumer public that requires that it act in accordance with the promise. That promise bestows a right upon the consumer, and places the dealer under an obligation in regard to the consumer public. If the dealer does not meet the obligation it undertook by means of the advertisement, and charges more than what was promised in the advertisement, it breaches its duty, and as a consequence of that breach, the consumer incurs damage. Therefore, even if the consumer was not exposed to the misleading publication, and did not change his behavior in regard the use of the product or service, he will still be deemed harmed, since the price he was charged for the product or the service was higher than the price at which he was entitled to purchase the product or service.

(5)   The consumer incurs injury in the form of a “price differential”, which is a real loss. Appropriate construction of the required causality would see this injury as connected to the breach of the proscribed misrepresentation, as due to the misleading advertisement and the difference between it and the manner in which the dealer actually acted, the consumer suffered injury. Such a construction would meet the requirement of a causal link, both factually and legally. Factually, the said injury caused to the consumer is a consequence of the fact that the dealer made a representation that it did not honor. Legally, the injury is causally related to the representation under the foreseeability test, in that when a dealer makes a false representation, it foresees that charging contrary to the representation will cause harm due to the “price differential”, under the risk test, since that harm falls within the scope of risk of the dealer’s act, and under the common-sense test, by which we examine the overall actions of the tortfeasor and their contribution to the harmful result.

E. (Justice E. Mazza, dissenting):

(1)   It is possible and proper to restrict the application of traditional tort law to consumer causes of action. Such restriction is clearly required by the significant, substantive difference between the purpose of consumer torts and the purpose of regular torts.

(2)   The consumer laws of deceit must contend with the requirements of reliance and causality differently than tort law. Instead of the personal reliance of each and every consumer – that of traditional tort law – we should adopt a doctrine that recognizes “constructive reliance” of the consumer public to which the advertiser directed its misleading advertisement, while instead of requiring proof of a factual causal connection between the deception and the injury caused to each of the complaining consumers, we should adopt a doctrine that recognizes a “consumer causal link” that would be inferred from the merger of the potentially misleading publication and the intention of the advertiser that the advertisement reach the consumers, mislead them, and thus influence their conduct.

(3)   Consumer deception would give rise to a (personal or class) cause of action for monetary relief upon the fulfillment of three elements: an offending publication, injury, and a “consumer causal link”. As opposed to this, we should also recognize a defense that would be available to the advertiser if he can show that the plaintiff was aware of the true facts, and that the offending advertisement could not, therefore, negatively influence his situation.

(4)   The reliance requirement undermines the objectives of consumer protection laws –leveling the playing field for the parties; increasing personal autonomy; the concept of consumer sovereignty; protection of the public welfare and of social rights; advancing commercial fairness; protecting the credibility of the local market and public confidence in the social regime – and it frustrates their realization. Once a potential to mislead is proved, and it is shown that the advertiser indeed intended that the misleading advertisement reach the public and influence its consumer conduct, we should properly hold that there is constructive consumer reliance upon the misleading advertisement. The question whether the dealer actually achieved its purpose, i.e., that the misleading publication actually reached its audience and actually influenced it, is of limited importance.

            F. (Justice D. Dorner, dissenting):

(1)   The Law, which intervenes in contracts between unequal parties, and subjects the stronger party – the supplier – to an increased duty of fairness towards the weaker party – the consumer – is firmly anchored in the established doctrines of contract law. Many consumer transactions are anchored in the accepted contractual doctrines under which if a supplier charges a higher price than the correct, advertised price, consumers are entitled to a refund of the difference. In the reality created by those doctrines, and in which consumers actually operate, consumers trust suppliers without verifying that each and every transaction conforms to the advertised price.

(2)   A supplier’s advertisement of a specific price creates a consumer right not to pay a higher price. If the supplier charges a higher price, that will, in any event, constitute a breach of contract that would give rise to monetary relief even for consumers who were not exposed to the advertisement.

(3)   That entitlement can be grounded at least three ways. The first deems the dealer’s publication about the price an irrevocable offer to the public, which can be accepted by the objective performance of its conditions, while the supplier is bound to the publicized price, and provides an opportunity for the public to purchase the product or service for a price that will not be higher. In accepting the offer, the parties agree to the published price, and the supplier must refund any additional amount charged. The second approach deems the contract to have an implied term under which the supplier undertakes not to charge the consumer more than the advertised price. Such a term reflects the expectations of the parties. Overcharging constitutes a breach of that term. The third approach would classify such overcharging – particularly if it targets only consumers who were not exposed to the publication – as a breach of contractual good faith.

 

Judgment

 

Justice M. Cheshin:

            A Further Hearing on the judgment of the Supreme Court in CA 1977/97 Yosef Barazani v. Bezeq – Israeli Telecommunications Company Ltd. (55 (4) IsrSC 584).

2.         The Consumer Protection Law, 5741-1981 (the Consumer Protection Law or the Law) – true to its name – places various obligations upon a “dealer” – one who sells goods or provides a service by way of dealer – to a “consumer” – one who purchases an commodity or obtains a service from a dealer in the course of his business for use that is primarily personal. One of those obligations is stated in sec. 2 (a) of the Law: “A dealer must not do anything…which is liable to mislead a consumer in regard to any material element of a transaction …”. Section 31 (a) further informs us that “Any act or omission in contravention of Chapters Two, Three or Four shall be treated as a tort under the Civil Wrongs Ordinance [New Version]”. And this is the heart of the matter before us: To what extent do the doctrines and principles of the Civil Wrongs Ordinance apply to the “tort” created under sec. 2 (a) of the Law? Shall we treat it as a “normal” tort – as if it were a tort comprised by the Civil Wrongs Ordinance – that integrates itself into the fundamental principles and doctrines of the Civil Wrongs Ordinance, or shall we say that the legislature created a special quasi-tort – a sui generis tort – that is not subject to the doctrines and fundamental principles of the Civil Wrongs Ordinance as they are usually construed?

             A company advertises one of its products in a way that is “liable to mislead a consumer” in regard to a material matter. Reuben buys the product without having seen the misleading advertisement, and thus, without having been misled. Reuben later discovers the misleading advertisement, and sues the company for monetary compensation for his claimed loss, solely because the company did not keep its advertised promise. Reuben does not make do with a personal suit, but requests that the court certify it as a class action: He asks to sue on behalf of the entire public that purchased that product, and obtain relief for that entire public. Can Reuben prevail in that suit?

3.         The Supreme Court ruled – by the majority opinion of Chief Justice Barak and Justice Englard – that Reuben cannot prevail in his personal suit. The reason is that in purchasing the product, Reuben did not rely upon the publication that was liable to mislead, and therefore no causal connection was shown between the publication and the injury allegedly caused to Reuben. As he could not prevail in his personal suit, he was not an appropriate plaintiff in a class action. Justice Strasberg-Cohen, dissenting, thought otherwise. In her opinion, considering the purpose of the Consumer Protection Law and the nature of a class action suit, such a person should be entitled to proceed with the suit, and there is, indeed, an appropriate causal link. Those, therefore, are the disagreements and the core of the issue that we will address in this Further Hearing. But first, the facts.

The Basic Facts

4.         I will begin with a brief, preliminary statement: Reading the briefs submitted to the Court surprisingly reveals that the parties do not only disagree on the legal questions – as is usual in a Furhter Hearing – but on no small number of factual issues. The appeal is even directed at findings of fact in the Supreme Court’s judgment. We will not address those disputes, and the factual foundation that we will address is the factual foundation that grounded the Supreme Court’s judgment.

5.         And now to the matter before us. Over the course of the years 1989 through 1996, the Respondent, Bezeq – Israeli Telecommunications Company Ltd. (Bezeq), conducted an advertising campaign to encourage the use of its international direct-dialing service, a service meant to replace the “188” service by which international calls were placed through an operator. The advertising campaign emphasized that “the call will be charged only for the exact time that you spoke, even if you only spoke for half a minute…”, and published the tariff that Bezeq was meant to charge for calls to various places around the world. The advertisement added that the quoted price was for a time unit of “one minute of conversation”. For example, a direct-dial call to the United States…NIS 3.53 per minute; a direct-dial call to France…NIS 3.14.

6.         In practice, it turned out that call time was not calculated on the basis of minutes, but rather on the basis of meter units. The length of each meter unit – whose length is set according to the country called – was several seconds, and Bezeq calculated the last meter unit of a call as if it had been entirely used, even if the customer spoke for only part of the unit. The customer did not, therefore, pay for the “exact time” that he spoke on the phone, as several seconds were added from the meter unit to every call – or to be precise – to almost every call. Due to that manner of calculation, the price of (nearly) every call was higher than the advertised price. For example, a “one-minute call” to the United States – 60 seconds – was calculated as comprising 14.23 meter units, the price of which was NIS 3.53, which was the advertised price. But in practice, Bezeq charged more for a (precisely) one-minute call. The reason for that was that Bezeq “rounded up” the 14.23 units to 15 units, and charged the customer for 15 units, whose price – needless to say – was higher than the advertised price. That, of course, was also the case for every call that was longer than a minute. The caller was charged for the last meter unit even if he did not completely use it.

7.         The Petitioner, Barazani (Barazani or the Petitioner) was a “consumer” as defined by the Consumer Protection Law, and Bezeq was a “dealer”. In 1996, Barazani initiated a monetary suit against Bezeq, along with a request that the suit be certified as a class action. Barazan claimed that Bezeq’s advertisements were “liable to mislead” consumers in regard to the true price of international phone calls, and that Bezeq had, therefore, contravened the prohibition of deceit under sec. 2 (a) of the Consumer Protection Law. Barazani claimed that the injury incurred by him was equal to the difference between the price that Bezeq advertised and the price that it actually charged him for international calls. Although Barazani incurred negligible injury, the total harm to Bezeq’s consumers – all those who had made international direct-dial calls in the relevant period – amounted to tens of millions of shekels. And, Barazani argued, Bezeq had pocketed those vast sums by misleading its customers. Barazani therefore asked that his suit be certified as a class action under the Consumer Protection Law, viz., that he be permitted to sue on his own behalf, and on behalf of all of Bezeq’s customers who made direct-dial international calls, and that he be awarded compensation for the injury incurred, i.e., compensation for the difference between the advertised price and the price actually paid by all of Bezeq’s customers.

8.         But Barazani himself was never exposed to the misleading advertisement. When he made his international calls, he had no knowledge of the misleading advertisement, and thus, in any case, did not rely upon it, was not influenced by it, and was not misled by it. The question, therefore, arose whether Barazani had a personal cause of action against Bezeq by reason of the misleading advertisement of which he was not aware. We would add – and this is the main point – that under the provisions of the Law, a person cannot present himself as a plaintiff in a class action unless he has a personal cause of action. Therefore, the absence of a personal cause of action by Barazani led to the collapse of the entire suit.

9.         The District Court decided that the conditions for a class action had been met, but further held that the class action could be submitted solely for declaratory relief and not as a suit for a monetary remedy. Both parties appealed that decision, and the Supreme Court decided (by a majority decision) to grant Bezeq’s appeal and deny Barazani’s appeal.

 

The Relevant Legal Provisions

10.       The three key legal provisions in this matter are as follows: first, sec. 2 (a) of the Consumer Protection Law, which establishes the prohibition upon deceit:

                        Prohibition of Deceit

2. (a)    A dealer must not do anything – by deed or by omission, in writing, by word of mouth or in any other manner … which is liable to mislead a consumer in regard to any material element of the transaction …

This provision limits itself to relations between a “consumer” and a “dealer” as defined under sec. 1 of the Law: A “dealer” is “a person who sells a commodity or performs a service by way of dealer and includes a producer”, and a “consumer” is “person who buys a commodity or receives a service from a dealer in the course of his business for mainly personal, domestic or family use”. The prohibition is one of conduct, and a dealer contravenes the prohibition even if he does something – by act or omission – that is only “liable to mislead” a consumer, i.e., even if no one was misled by it. Therefore, as stated in sec. 23 (a) (1) of the Law, a dealer commits an offense and is liable to punishment if “did anything liable to mislead a consumer in violation of the provisions of section 2”. The standard of conduct required under sec. 2 (a) is higher than the usual standard in other laws. Such is the case, for example, in regard to the torts of fraud and injurious falsity under secs. 56 and 58 of the Civil Wrongs Ordinance, and misrepresentation under sec. 15 of the Contracts (General Part) Law, 5733-1973. In those provisions – and in many others – a direct causal connection is required between an act and a result – injury to a victim – whereas sec. 2 (a) of the Consumer Protection Law prohibits the conduct per se, even in the absence of resultant injury. This requirement of the Consumer Protection Law is, of course, intended to protect the consumer – to ensure that the consumer will receive reliable information about a commodity or service offered to him, so that he may make a reasoned decision whether or not to make the transaction. See: Explanatory Notes to the Consumer Protection Law Bill, 5740-1980, 5740 H.H. 302; and compare: CA 1304/91 Tefahot Mortgage Bank for Israel Ltd v. Liepart, 47 (3) IsrSC 309, 326.

11.       The second legal provision is that found in sec. 31 (a) of the Consumer Protection Law, from which we learn that an act or omission under sec. 2 (a) – and many other provisions – is to be treated as a tort:

                        Compensation

31. (a) Any act or omission in violation of Chapters Two, Three, or Four shall be treated as a tort under the Civil Wrongs Ordinance [New Version].

It would appear, therefore, that contravening the prohibition of deceit – as specified in sec. 2 (a) of the Law – is to be treated as a tort under the Civil Wrongs Ordinance, and therefore, should be adjudged according to the principles and doctrines established by the Civil Wrongs Ordinance that apply to torts under Ordinance.

12.       The third relevant legal provision is sec 35A of the Law, which treats of class actions under the Law:

                        Class Action

35A. (a) A consumer… (hereinafter – the plaintiff), may bring suit subject to the provisions of this chapter, on behalf of a group of consumers for a cause of action under which, in accordance with this law, he could personally bring suit, and against every defendant that the consumer could personally sue (hereinafter – a class action).

(b) Where the cause of action is damage, it is sufficient that the plaintiff show that damage was caused to a consumer.

(c) …

The plain-meaning of this legal provision is that an individual victim can present himself as a representative plaintiff in a class action – subject to these and other provisions – if and only if he has a personal cause of action. In other words: there is no “public” class action. The possibility of an actio popularis in the field of class actions is ruled out by the Consumer Protection Law.

13.       Let us examine the opinion stated in the judgment before us in light of these provisions.

 

The Opinion in the Judgment under Appeal in the Further Hearing

14.       The starting point for this interpretive journey is that Bezeq’s advertisement was (purportedly) something that was “liable to mislead a consumer in regard to any material element of the transaction”, as stated in sec. 2 (a) of the Consumer Protection Law. Therefore, as all three justices agreed, Bezeq breached a prohibition established by under sec. 2 (a) of the Law. However they disagreed on the question whether Barazani was harmed as a result of the advertisement. Did Barazani incur damage even though he had not rely upon those advertisements, and even though there was no causal connection, in the accepted sense, between the advertisement that ex hypothesi did not mislead him, and the harm he claims that he incurred? Or, as Justice Strasberg-Cohen stated the matter (ibid., 594):

Section 2 (a) of the Law, titled “Prohibition of Deceit”, forbids a dealer from doing anything that “is liable to mislead” a consumer in regard to any material element of a transaction, and sec. 31 of the Law establishes that violating the prohibition upon deceit is to be treated like a tort, which entitles the victim to compensation. We learn from the two sections that in order for a consumer to have a cause of action against the dealer for a breach of the “prohibition of deceit”, the consumer must show that the dealer breached the duty imposed by the “prohibition of deceit”, that the consumer suffered harm as a result of the breach of that duty, and that there was a causal connection between the breach of the prohibition established under sec. 2 (a) of the Law and the harm suffered by the consumer.

15.       In her dissent, Justice Strasberg-Cohen argued that the purpose of the Consumer Protection Law – and the purpose of class actions, as well – both require that we interpret the provision of sec. 2 (a) of the Law as granting a consumer a cause of action even if he did not rely upon the misleading representation. After all, the Law speaks of something that is “liable to mislead”, and not about something that “misleads”. Therefore, once an advertisement that is “liable to mislead” is published, the dealer is under an obligation to fulfill what it promised in the advertisement, while opposite that duty stands the right of the consumer that the dealer will act in conformance with the advertisement. If the dealer breach that duty, the consumer incurs damage that entitles him to compensation. The dealer causes damage to the consumer by the very breach of the duty imposed upon him, even if the consumer was unaware of the advertisement. Indeed, the causal connection between the advertisement and the damage is not the accepted one that we know from tort law, but one that is not bound by the provisions of the Civil Wrongs Ordinance in this regard.

16.       That view was not acceptable to Chief Justice Barak. The Chief Justice agreed, as we noted, that Bezeq had breached the prohibition upon publishing an advertisement that was “liable to mislead a consumer”, but he did not share the opinion that that breach entitled Barazani to sue for compensation. The reason for that was that, as we know, Barazani did not rely upon the advertisement when he made international calls – inasmuch as he was unaware of it – and there was, therefore, no (factual or legal) causal connection between Bezeq’s breach and the alleged damage caused to Barazani. In the opinion of Chief Justice Barak, as stated in sec. 31 (a) of the Law, the normal doctrines of tort law – among them the causal-link doctrine, and the rule that compensation is granted only for damage that is causally connected to the tortfeasor’s wrongful act – apply to the breach of the duty established by sec. 2 (a) of the Consumer Protection Law. Thus, in light of that, in the matter before us there was no causal connection – a causa sine qua non connection – between the advertisement and Barazani’s alleged damage, and a necessary condition for compensation was not met. Since Barazani did not have a personal cause of action for a suit for damages, he could not, in any case, act as a representative plaintiff for compensatory relief.

17.       Justice Englard was of the opinion that Bezeq’s advertisements were not liable to mislead the consumer public, and that Bezeq had not, therefore, breached its duty under sec. 2 (a) of the Law. In regard to the disagreement between my colleagues Justice Strasberg-Cohen and the Chief Justice, Justice Englard concurred with the view of the Chief Justice, holding that compensation should not be awarded to a consumer who was not actually misled by the misleading advertisement. The reason for this was that “no obligation for compensation should be imposed in the absence of a causal connection between the wrong and the damage”.

 

The Question at Issue

18.       This, therefore, is the question at issue: Reuben, a dealer who sells commodities or supplies services, publishes an advertisement that is “liable to mislead a consumer” in regard to a material element. We all agree that by doing so, Reuben violates a prohibition established under sec. 2 (a) of the Consumer Protection Law. Simon, a consumer, purchases one of those commodities or services that Reuben offers for sale. Does Simon acquire a cause of action against Reuben for damages even if he never saw the advertisement, and thus was neither influenced nor misled by it? Is a consumer who purchased some commodity or service from a dealer entitled to damages from that dealer merely by virtue of the fact that the dealer violated sec. 2 (a) of the Law by publishing an advertisement liable to mislead the consumer public in regard to that commodity or service – which is the view of Justice Strasberg-Cohen – or, as Chief Justice Barak and Justice Englard argue, is the burden upon the consumer to show not merely that he purchased the commodity or service, but also that he did so in reliance upon the misleading advertisement?

 

A Methodological Note concerning the Core

19.       Before delving into the heart of the dispute, we would preface with a methodological observation that we deem of singular importance.

20.       When Barazani’s petition for a Further Hearing on the Supreme Court’s judgment was granted, the Israel Consumer Council (the Consumer Council or the Council) requested to join as a party to the proceedings. The Court granted that request, and in lengthy pleadings, brimming with arguments and supporting sources, the Council lent its support to Barazani’s position and arguments. Central to the Council’s arguments is the view that adopting the majority’s opinion would eviscerate class actions in the framework of the Consumer Protection Law, and would thus entirely frustrate the purpose of sec. 2 (a). Here is a typical example of the Council’s arguments:

It would be hard to overstate the importance of the rule established in the Barazani case. As will be explained below, in accordance with that rule, in every instance of a misleading advertisement it will be necessary to prove that each of the consumers saw the advertisement, read it, understood it and acted in reliance upon it. Where we are concerned with a consumer class action in which tens of thousands were harmed, it is not at all practical to examine which of them saw the advertisement, which of them relied upon it and to what extent the advertisement influenced their discretion in purchasing the commodity or service.

Inasmuch as consumer class actions generally represent a very large number of consumers, and are often the result of advertisements by the relevant companies, all such cases will be denied at the stage of requesting certification, based upon the argument that personal reliance of each and every member of the class cannot be proven. In other words, it will be possible to block almost every consumer class action. Moreover, as will be explained below, this construction will inflict substantial harm upon the Consumer Protection Law, at least in regard to the civil remedies that the Law provides.

If the construction under which personal reliance of each consumer is accepted as the relevant construction for the remedy of damages under the Consumer Protection Law, the result will be that it will be impossible to sue for damages by way of a class action in cases of false advertising. This rule is liable to result in abuse, and a situation in which advertisers will not worry about making imprecise statements, as the primary remedy of a class action will not be available to the consumer public.

The Council and Barazani (the Petitioners) further explain that the Consumer Protection Law – and sec. 2 (a) thereof, with which we are concerned – was intended to protect consumers from large companies, and to deter such companies from harming consumers. In the opinion of the Petitioners, class actions are vital to the realization of that objective, as without them, the Law will not be enforced, and the obligations it places upon dealer will come to nothing. The other enforcement measures in the Law are secondary measures and inadequate. The primary means for enforcing the Law is by class actions, which place enforcement in the hands of the individual consumer, and thus appropriately lead to a distribution of enforcement. The Petitioners argue that the majority opinion would sound the death knell for class actions and should, therefore, be rejected. The Petitioners find further support for their position in the American consumer protection laws, which, they argue, do away with the need for reliance, and that, they claim, is also the case in regard to Israeli securities law. They therefore pray that we interpret secs. 2 (a) and 31 (a) of the Law broadly and generously, as does Justice Strasberg-Cohen. I believe that I would not exaggerate in saying that the class action constitutes the central pillar of the Petitioners’ argument, as if class actions are the whole Torah on one foot, and all the rest of the Consumer Protection Law is but commentary.

            Bezeq replies to the Petitioners’ arguments at length and in detail, and we shall briefly refer to part of that reply.

21.       We have no intention of delving into the subject of class actions for the purpose of deciding the instant case. However, we will make some observations in regard to how class actions are integrated into the provisions of sec. 2 (a) of the Law, and primarily in regard to the consequences of such actions upon the interpretation of sec. 2 (a).

22.       In accordance with the provisions of sec. 35A (a) of the Law (see para. 12 above), a person cannot initiate a class action unless he has a personal right to bring suit. Compare (in regard to actions under the Securities Law, 5728-1968): CA 2967/95 Magen vaKeshet Ltd. v. Tempo Industries Ltd. IsrSC 51 (2) 312, 329, and in regard to an action on the basis of sec. 29 of the Civil Procedures Regulations, 5744-1984, see: LCA 3126/00 State of Israel v. A.S.T Project Management and Manpower Ltd., IsrSC 57 (3) 220, at para. 24 of the opinion of Strasberg-Cohen, J. A class action is a type of extension of the personal suit, and in the absence of a right to bring a personal suit, there can be no class action. A class action is like a chamber within a chamber. You cannot enter the inner chamber without first passing through the outer one. If that be the case – and I believe that to be so – then it would be difficult to conjecture from class actions to personal actions. If a person must first show that he has a personal right to sue, and if overcoming that hurdle is a precondition to a class action, then the interpretation and scope of personal actions can be influenced but little, if at all, by class actions. If that is the general case, then clearly class actions cannot be seen as independently granting causes of action. A class action is nothing but a procedural means for joining several personal actions into a single proceeding. That being the case, we cannot say that class actions might provide inspiration for interpreting sec. 2 (a) of the Law, let alone that the fundamental basis for its construction is to be found in class actions.

23.       Moreover, the provisions of sec. 2 (a) of the Law, along with sec. 31 (a) –  legal provisions that grant a consumer a personal right – were part of the original Law as enacted in 1981. At the time, class actions were not included in the Law. Class actions only boarded the moving train of consumer protection some thirteen years later in the Consumer Protection (Amendment No. 3) Law, 5754-1994. And see: the Explanatory Notes to the Consumer Protection Law (Amendment No. 3) Bill, 5754-1994, H.H. 5754, 396:

It is recommended that an additional chapter be added to the Consumer Protection Law, 5741-1981, that would make it possible to initiate a class action.

A class action, which saves the need for submitting a large number of individual consumer suits, is the efficient, and sometimes the only way by which consumers can contend with powerful economic bodies for which an independent suit of a single consumer, or even of several consumers together, is meaningless.

Knowing this to be the case, we can return to the question of how class actions influence the interpretation of personal suits, and say: until the institution of class actions, we had to interpret sec. 2 (a) on its own, from within and in the general context of the Law as it then was, and in the broad context of the existing legislation and the general principles for the interpretation of statutes, as normally applied. Class actions were not part of that interpretive process, as they had not yet been recognized, and therefore could not have influenced our interpretation. The interpretation of sec. 2 (a) of the Law was thus grounded before class actions were part of the Law. With the introduction of class actions in 1994, we find nothing among its provisions but the procedural expansion of the personal suit into very many personal suits.  The fundamentals of personal suits did not change. As Justice Strasberg-Cohen notes in LCA A.S.T. (above, at para. 26 of her opinion):

The arrangement for submitting a class action is essentially a procedural one. It facilitates joining the individual suits of many, mostly unknown, plaintiffs, into one suit. The fact that a class action has many ramifications for various areas does not change its basic procedural nature.

Indeed, “a situation in which a single plaintiff (or a number of plaintiffs) sue on behalf of a group of individuals for harm (of a similar kind), where each member of the group was harmed by an identical breach of duty, stands at the base of class actions” (LCA 4556/94 Tazat v. Zilbershatz, IsrSC 49 (5) 774, 783). A class action “represents a collection of personal suits” (the Magen vaKeshet case, above, 324), and it does not create causes of action for the representative plaintiff or for the members of the group. Class actions are an important tool – of great value and power – and in being what they are, they influence the material rights of the parties – the defendants, the representative plaintiff, and the members of the group. However, their influence is in providing an opportunity to realize rights, rather than in the creation of new causes of action. The power and importance of a class action are expressed in its size, and in making it possible to join a large number of existing actions in one procedure, where treating each action individually would lack significance. At the same time, the class action does not grant the representative plaintiff, or any member of the group, a cause of action that he would not have were it not for the class action. How, then, do class actions influence the interpretation of what preceded them in time, as alleged?

24.       We would emphasize that, of course, it is not our intention to say that a later law – that of 1994 – cannot influence the interpretation or scope of prior rights. However, in a case such as ours, we would expect that the new law would send us some sign or signal that would inform us – expressly or impliedly, directly or indirectly – that it is intended to change the mode or manner of the prior law, or, in the case before us, that it would entirely change the interpretation of sec. 2 (a). But in the 1994 law “there was no response, no one answered, no one paid attention”.[1] It is simply that sec. 2 (a) of the Law should be interpreted after 1994 as it was understood before that year, i.e., without reference to class actions as such (see and compare: HCJ 6194/97 Nakash v. National Labor Court, IsrSC 53 (5) 433, 455-456; and see: A. Barak, Interpretation in Law, v. 2 (Nevo, 1993) 51-54).

25.       We would add that we do not mean, and have not said, that the provisions regarding class actions cannot, by their very nature, affect the interpretation of the personal suit. It can be argued that had the class action been created in the original law – joined at birth to the personal suit – then it could retroactively, so to speak, influence the interpretation of the personal suit. “There is no early or late in the law”,[2] and all of its provisions are part of a unified whole. Thus, provisions that, in terms of the internal logic of the law, appear to “precede” other provisions of the same law, will not be interpreted independently, in isolation from the “later” provisions. The law is like a living creature, and each of its organs affects the others, and vice versa (see and compare: CrimA 4389/93 Mordechai v. State of Israel, IsrSC 50 (3) 239, 260 ff.). However, in this regard, we would expect that the later law would send us some message telling us that it is intended to shed new light on the preexisting law. But the 1994 amendment – that which introduced class actions – says absolutely nothing that might affect the interpretation of sec. 2 (a) as it stood prior to the amendment.

26.       Our conclusion is, therefore, that, as opposed to the argument of the Petitioners, class actions will not play a decisive role in the interpretation of the provisions of sec. 2 (a) or of sec. 31 (a) of the Law. That is not to say that we may not glance in the direction of class actions in the course of interpretation, since, after all, after the amendment of the Law, a class action is one of the organs of the Law (and that, bearing in mind, as we said, that had class actions been created with the Law, then it would be appropriate to interpret personal suits differently). However, the influence of class actions, to the extent that they may exert some influence – which is a separate question – will only be marginal.

27.       This matter of interpretation that we just addressed is of singular importance. As we all know – and as stated – class actions are an important, valuable tool. But first and foremost – and this is the main point – it is a powerful tool. However, the synergetic power of a class action makes it a non-conventional weapon, and not surprisingly, it strikes fear into the hearts of dealers. For that reason – and primarily for that reason – we must take special care in treating of the class action, as it is a hand-grenade with the pin pulled out.  We celebrated the birth of the class action, as in the “balance of terror” between dealers and consumers – particularly in a society such as our own, in which we are assured that “it will be alright” and “you can rely on me” – consumers require that power they would not otherwise have in confronting dealers. But that joy can be a mixed blessing, and we must take care that the class action not exert undue influence over the scope of personal suits.

            Let us now, first and foremost, turn to the question of Barazani’s right to bring a personal suit against Bezeq.

 

The Nature and Category of the Right established under Section 2 (a) of the Law

28.       Section 2 (a) of the Law does not inform us of the remedy that a consumer may seek from a dealer that did something “liable to mislead a consumer” in regard to a material element of the transaction. This gap – if it is a gap – is filled by the provisions of sec. 31 (a) of the Law, which informs us that an act or omission contrary to Chapters Two, Three or Four of the Law is to be treated as a tort under the Civil Wrongs Ordinance (see para. 11, above). Section 2 (a) is located in Chapter B of the Law – the chapter comprising secs. 2 through 7, titled “Deceit and Exploitation” – and we therefore know that an act or omission prohibited under sec. 2 (a) is to be treated as a tort under the Civil Wrongs Ordinance. It would appear as if the Consumer Protection Law planted sec. 2 (a) – like many other provisions – into the “Civil Wrongs” chapter of the Civil Wrongs Ordinance, and that sec. 2 (a) is the same as any of the other torts under the Ordinance. One of the necessary conclusions to be drawn from that would be that sec. 2 (a) is subject to the doctrines and principles set out in the Civil Wrongs Ordinance, which are applicable to all the torts in the Ordinance. And as Justice Strasberg-Cohen instructed us in LCA 6567/97 Bezeq – Israeli Telecommunications Company Ltd. v. Estate of Eliahu Gat, IsrSC 54 (2) 713, 717:

In practice, Bezeq cannot be directly attacked in regard to the applicable tariff, as its actions are under the aegis of the Regulations [Bezeq Regulations (Payments for Bezeq Services detailed in Schedule Two of the Law – Services in Israel), 5756-1996], and, therefore, enjoy apparent immunity by virtue of sec. 6 of the Civil Wrongs Ordinance [New Version], which grants a defense to an action under a statute, and according to sec. 31 (a) of the Law, an act or omission contrary to Chapters Two, Three or Four is to be treated as a tort under the Civil Wrongs Ordinance [New Version].

 

29.       My colleague now reads sec. 31 (a) of the Law differently, and sec. 31 (a) no longer directs us to the Civil Wrongs Ordinance as it stands, but rather to a general law that is similar but not identical to the Civil Wrongs Ordinance, or as she describes it (at p. 605):

 

In my opinion, we should bear in mind that an act or omission contrary to the prohibition upon deceit established by the [Consumer Protection] Law is not a “regular” tort but it is to be treated “as a tort”. Therefore, we are not limited to “traditional” tort law – upon which my colleague the Chief Justice bases his opinion – and we should also give appropriate weight to the purpose of the Law and the purpose of class actions … [emphasis original – M.C.].

 

I find it hard to accept such reasoning.

 

30.       In my opinion, sec. 31 (a) should be read and understood in accordance with its plain meaning, and the plain meaning is that the prohibition stated in sec. 2 (a) of the Consumer Protection Law is a tort for the purpose of the Law. Or, as stated in the Explanatory Notes of the bill (Consumer Protection Law Bill, 5740-1980, H.H. 5740, 302, 313), Explanatory Notes to secs. 30 through 33):

 

The granting of civil remedies to the harmed consumer allows him to compensate himself with relative ease for damage he incurred as the result of an act or omission contrary to Chapters B through D.

 

And further on (ibid., 314, in the Explanatory Notes to sec. 35):

 

The basic concept grounding the law is that deceiving a consumer, defrauding a consumer, and similar acts or omissions stated in the law are torts, and the consumer should be compensated for the damage caused him.

 

My colleague does not interpret the prepositional “kaf of comparison” prefix “as”[3] in forming the phrase “as a tort”[4] in the usual way. In my opinion, the interpretation of the prefix is “as this so this, the two are exactly identical” (Even Shoshan, The New Dictionary, 1991, s.v. “kaf”  (Hebrew)), or as Jehoshafat King of Judah said to Jehoram King of Israel: “ I am as thou art, my people as thy people, my horses as thy horses” (I Kings 22:4; II Kings 3:7) (and notwithstanding the statement of the Sages that “an egg is superior to anything as an egg…” (Babylonian Talmud, Tractate Berakhot 44b), which is clearly not applicable here, as is easily seen from the context[5]). Of course, the legislature could have worded the provision of sec. 31 (a) such that an act or omission etc. would constitute a tort under the Civil Wrongs Ordinance – it would be a tort rather than be treated as a tort – but I fear that the preposition is not strong enough to support the superstructure that my colleague wishes to build upon it. 

            I also do not find any merit in the arguments of the Consumer Council comparing the phrase “as a tort” in our case to similar but not identical wording in other statutes. Thus, for example, sec. 11 of the Commercial Torts Law, 5759-1999, states “The violation of the provisions of Chapters One and Two is a tort, and the Civil Wrongs Ordinance [New Version] … shall apply to it…”. At times we find this wording and at times other wording, and we will not hang mountains by a hair.[6] The same is true in regard to other statutes that employ various wordings. See, for example: sec. 28 of the Adoption of Children Law, 5741-1981; sec. 5 (a) of the Prohibition of Discrimination in Products, Services, and Entry into Public Places, 5761-2000; sec. 15 of the Banking (Customer Services) Law, 5741-1981, and others. In my opinion, the purpose of the Law in this case is crystal clear, and comparisons to other laws will not succeed.

31.       Indeed, nothing in the language of sec. 31 (a) of the Law would show that the tort under sec. 2 (a) removes it from the fundamental principles or doctrines of the Civil Wrongs Ordinance, and nothing therein might serve to show that a consumer is entitled to damages merely because a dealer contravened a provision of the Law. On the contrary, the Law refers us clearly and unreservedly to the Civil Wrongs Ordinance. Section 2 (a) situates itself as one of the native torts of the Civil Wrongs Ordinance, and it would therefore appear that the fundamental principles and doctrines of the Civil Wrongs Ordinance apply, in their entirety, with the same effect and force with which they apply to the native torts.

            Moreover, not only is the language of the Law crystal clear, but efficiency also points to the solution presented by the Law. Inasmuch as the acts and omissions external to the Ordinance are tortious in nature, it is but natural that we should employ the same traditional, familiar doctrines that tort law created and developed over so many years such that they have become foundational to the legal system, subject, of course, to special, exceptional cases.

 

Application of Fundamentals Principles and Doctrines of the Civil Wrongs  Ordinance to Torts external to the Ordinance

32.       We have stated that the doctrines of the Civil Wrongs Ordinance “appear” to apply to the prohibited acts under sec. 2 (a) of the Consumer Protection Law. Indeed, there are differences between the native torts of the Ordinance and those external to it that are treated as torts under the Ordinance. The native torts were created together with the Ordinance’s doctrines, and they reside in the same structure. Other than in exceptional cases, the doctrines of the Ordinance will apply with full force to every tort in the Ordinance. In regard to those exceptions, see Cheshin, Chattels in the Law of Torts (Magnes, Jerusalem, 1971), secs. 168-172 (pp. 167-170). As opposed to the native torts, the external torts, among them those under sec. 2 (a) of the Consumer Protection Law, are different. Indeed, the general doctrines of the Ordinance apply to them, however, here we must take special care. Since we are concerned here with transplanting a new organ into the body of the Civil Wrongs Ordinance, we must closely examine whether any particular doctrine of the Ordinance is compatible with the foundations, essence and structure of the new tort. This question was addressed in I. Englard, A. Barak & M. Cheshin, The Law of Civil Wrongs – General Principles of Tort Law, G. Tedeschi, ed. (2nd ed., Jerusalem, 1977) pp. 74 ff. and especially p. 81, and we shall elaborate no further. And see: CA 3666/90, 4012/90 Zukim Hotel Ltd v. Netanya Municipality IsrSC 46(4) 45, 73 [1992]; CA 804/80 Sidaar Tanker Corporation v. Eilat-Ashkelon Pipeline Company Ltd., IsrSC 39(1) 393. And so we stated in CrimA 3417/99 Har Shefi v. State of Israel, IsrSC 55 (2) 735, 766-767 [English translation: http://versa.cardozo.yu.edu/opinions/har-shefi-v-state-israel]:

 

And indeed, this is – in general – the relationship between the general definitions and doctrines which cut across the law lengthwise and widthwise, and specific statutory provisions.  General definitions and doctrines will attach themselves to all statutory provisions and laws they wish to apply to. But where a certain specific statutory provision seeks to expel from within its bounds the general definition or doctrine—and this expulsion is derived by way of “interpretation”, in the broad sense of the concept of interpretation, including from the basic tenets of the system: logic, justice, first principles, social doctrines, etc. — the specific statutory provision prevails, while the general definition and doctrine will retreat. The general definition and doctrine will apply, as per the language of the Interpretation Law 5741-1981 in section 1, “… if there is no other provision as to the said matter, and if there is nothing in the said matter or its context which cannot be reconciled with…” the general definition or doctrine.

Elsewhere I raised the theory that the term “tort” in the Civil Wrongs Ordinance [New Version] is not limited only to those torts listed in the Ordinance.  I opined that the concept “tort” is a conceptual term, and from this I concluded that there are “torts” outside of the Civil Wrongs Ordinance [New Version].  Against this background I further asked myself, what is the relationship between the doctrines that were established in the Civil Wrongs Ordinance [New Version] and those unspecified torts.  I answered the question by saying that an unspecified tort will not “be controlled mechanically by the doctrines established by the Ordinance.”  And that the doctrines in the Ordinance will apply to unspecified torts only “… if the application of a certain doctrine from the Ordinance is consistent with the foundations, essence, and structure of the tort at issue, and with the framework in which it is found”.

 

Causal Connection and Awarding Damages

33.       Barazani claims damages from Bezeq by virtue of the advertisement that it published, and which – as stated in sec. 2 (a) of the Consumer Protection Law – was liable to mislead a consumer in regard to a material element. We are all in agreement that Barazani did not see the advertisement, that he was not influenced by it, and that he did not rely upon it when he made international calls. Nevertheless, and deeming himself wronged, he demands damages – and asks to sue for those damages in a class action on behalf of all those harmed – claiming that he incurred harm for which he is entitled to compensation. The damage, he argues, is the difference between the advertised price and the price he actually paid Bezeq. Here, Barazani confronts the doctrines of the Civil Wrongs Ordinance, and the question is whether those doctrines bar his path to compensation.

34.       Among those doctrines, two concern us here. My colleague Chief Justice Barak addresses those doctrines in his opinion, and inasmuch as I agree with his opinion, I will be brief rather than elaborate at length.

35.       One doctrine is that of causation, under which – in accordance with sec. 64 of the Civil Wrongs Ordinance – there must be a causal connection between a person’s act or omission – an act or omission that constitute a tort – and the harm incurred by the victim, for which he seeks redress. As stated in sec. 64 of the Civil Wrongs Ordinance: “… a person shall be deemed to be at fault for such damage when the fault was the cause or one of the causes of the damage”. In the matter before us, there was no causal connection between Bezeq’s advertisement and the “damage” caused to Barazani, if only by reason of the fact that Barazani never read that advertisement, and therefore, in any event, he is not entitled to sue on that basis. Indeed, Bezeq committed a tort by publishing the advertisement – that is the basic assumption in this case – but the mere existence of a tort is insufficient to entitle a person to redress. That person must show that due to that tort, he incurred harm, and that precondition was not met in regard to Barazani.

36.       This is also the case in regard to the compensation doctrine. In accordance with sec. 76 of the Civil Wrongs Ordinance, and as has always been the case: a person is entitled to compensation only for harm caused as a result of the tortious act. A person will be entitled to compensation only to the extent of the harm incurred, and as stated in sec 76: “only in respect of such damage which may naturally arise in the usual course of things and which directly arose from the defendant’s civil wrong”. A fundamental principle of tort law is that of restitutio ad integrum, and therefore, a person who did not suffer harm will not be entitled to compensation. See and compare: LCA 378/96 Sagi Weinblatt v. Moshe Burstein Ltd., IsrSC 54 (3) 347, 361; CA 5465/97 Kenny Housing Ltd. v. Netanya Local Planning and Building Board, IsrSC 53 (3) 433, 440-441.

            That is also the opinion of Prof. Sinai Deutch in his book Consumer Protection Law, vol. 1 (2001) 376 (Hebrew), who wrote the following about the causal link required under sec. 2 of the Law and the compensation to which a victim is entitled:

 

In a tort claim under the Consumer Protection Law (sec. 31 of the Law), there is no need to prove a causal connection between the mistake and the contractual agreement, but a causal connection must be shown between the deceit and the harm caused to the consumer. While sec. 2 of the Consumer Protection Law prohibits doing anything liable to mislead the consumer, and it would therefore appear that there is no requirement of actual misleading, the sanction attendant to such an act can only be administrative or penal. If, in fact, there was no misleading and no harm, damages cannot be awarded. Compensation owing to a tort can be awarded only for demonstrated harm.

 

Thus, publishing something that is liable to mislead, per se, does not grant a consumer a right to compensation if he was not actually harmed. That is also the view of Dr. Orna Deutch, who writes in her book The Legal Status of Consumers (Nevo, 2002) 414-415 (Hebrew):

 

As far as the remedy of damages is concerned, a suit under the Consumer Protection Law would require proof of the harm deriving from the deception, in other words, the existence of actual deception and action on the basis of that deception. There must be a causal connection between the deception and the harm, as is the normal rule in regard to damages. That was the majority opinion in Barazani v. Bezeq. Indeed, there is no justification for allowing a person to collect damages where he did not incur harm as a result of the deception. The purpose of damages is to require that the person responsible make restitutio ad integrum. There is no need for a causal connection in relation to any harm when a declaratory order is sought to stop the misrepresentations…

And see: Prof. Miguel Deutch, Commercial Torts and Trade Secrets (Nevo, 2002) (Hebrew) 48-50.

            And if that is not sufficient, we would note the opinion of Chief Justice Shamgar in the Liefert case (Note to editor: I assume the reference is to CA 1304/91 Tefahot Mortgage Bank v. Liefert, IsrSC 47 (3) 309). In that case, the Court addressed sec. 3 of the Banking (Service to Customers) Law, 5741-1981, that prohibits a banking corporation from doing anything “liable to mislead a customer as to anything material to the performance of a service to the customer”. In that regard, Chief Justice Shamgar wrote (at p. 326):

 

The prohibition in the Banking (Service to Customers) Law is broad, and prohibits any act or omission liable to mislead. In other words, it is not necessary that there be actual deception (although in the absence of such deception, it is doubtful that it would be possible to point to some harm that might support a cause of action for damages under the law) [emphasis original – M.C.].

 

Of course, the legislature is free to deviate from this principle, and decide – for various reasons – that a victim be granted compensation without showing harm. See, for example: sec. 7A of the Defamation Law, 5725-1965; sec. 11 of the Contracts (Remedies for Breach of Contract) Law, 5731-1970; sec. 10 (a) (1) of the Employment (Equal Opportunities) Law, 5748-1988; sec. 6 (b) of the Prevention of Sexual Harassment Law, 5758-1998; sec. 3A of the Copyright Law; sec. 13 (a) of the Commercial Torts Law, 5759-1999. However, these are but exceptions to the rule. The rule is that compensation will be granted only if harm was done, and compensation will be granted only to the extent of the harm done. In the matter before us, and inasmuch as Barazani was unaware of Bezeq’s advertisements and did not rely upon those advertisements, we cannot say that he is entitled to compensation. Indeed, depriving Barazani of the right to compensation primarily derives from the absence of a causal connection between the tort and the “harm” he allegedly incurred, and the compensation doctrine simply confirms the lack of a claim for compensation against Bezeq.

37.       The absence of Barazani’s right can also be demonstrated in another way. An action in tort that concerns an injury to a person, begins with that injury. When a person incurs injury as a result of the act or omission of another, we examine whether that injury was caused by a tort perpetrated by that person against the injured party, or whether that person breached some duty toward that injured party. See and compare: LCA 5768/94 A.S.I.R Import, Manufacture, and Distribution v. Forum Accessories, IsrSC 52(4) 289, 334. If that examination show that a tort was committed or that a duty was breached, and that the tort or breach of duty was the cause of the harm, then the tortfeasor will be liable for damages. However, if no connection be found between the act or omission of the tortfeasor and the harm, then damages will not be awarded, and the injury will be damnum sine injuria – a loss without a wrong.

38.       In the matter before us, things appear topsy-turvy. Unlike the situation of a normal tortious event, Barazani cannot show the actual “harm” that was caused him unless we first say that the provision if sec. 2(a) of the Consumer Protection Law entitles him to damages. In that case, we would say that Barazani incurred “harm” because he is entitled to damages by virtue of the Law. His “harm” is a sort of “statutory harm” – harm ex lege. However, unlike other statutory provisions that grant a consumer a monetary right – see, for example, the provisions of secs. 10 and 17B of the Consumer Protection Law – sec. 2 (a) of the Law does not establish a consumer’s right to damages in the absence of proof of injury, or a consumer’s right to pay a particular price advertised by a dealer. And see: LCA 8733/96 Robert Langbert v. Israel Lands Administration, IsrSC 54 (1) 168. Thus, while in a normal tort case, the injured party can easily point to the harm he incurred, in the matter before us, Barazani cannot show that he suffered any real “injury”, if only because he never saw Bezeq’a advertisement. The existence of an “injury” must be derived from sec. 2 (a), which does not address compensation. We thus find ourselves locked in a vicious circle. We assume the existence of “injury”, and then find that injury has been caused on the basis of that assumption. We therefore state that just as a person is not entitled to sue a person for negligence unless that negligence caused him harm, a person cannot sue a dealer for publishing something liable to mislead in regard to a material element of a transaction if that deceit did not cause him harm. We therefore declare that in the absence of an explicit, unambiguous provision granting damages for virtual harm, like that suffered by Barazani, we cannot imagine that a court will award damages. Such significant creativity is a matter for the legislature, not the courts. The legislature did not say what the petitioner wishes to put in its mouth, and we will not usurp the role of the legislature to say what it did not.

39.       Having said all that in regard to causation and damages, we would add that the (factual and legal) causal connection required by sec. 2 (a) of the Law does not unambiguously require a consumer’s explicit reliance upon a dealer’s representation, as opposed to sec. 56 of the Civil Wrongs Ordinance that explicitly requires a causal connection of reliance. It is possible for the necessary causal connection to exist even where a consumer does not directly rely upon a representation, as where the dealer’s representation (as stated in sec. 64 of the Civil Wrongs Ordinance) “was the cause or one of the causes of the damage”. That would be the case, for example, where it can be shown that a dealer’s representation that was liable to mislead a consumer in regard to a material element motivated a chain of events that resulted in injury to the consumer. For example: a certain advertisement misled a person, and it is possible to show a sufficiently proximate causal link between that person and the consumer who suffered the injury. In other words, in this context, we should broadly interpret the concept of reliance such that it comprises more than just direct reliance.

            However, there must be some (appropriate) causal connection between a misleading advertisement and the injury incurred by the consumer. Thus, the two successive events for our purposes are: first, a publication that is liable to mislead a consumer in regard to a material element of the transaction, and the second, that the consumer purchased the commodity or the service that was the subject of the advertisement. In this regard, the fact that the purchase of the commodity or the service followed the advertisement in time is not sufficient, in and of itself, in order to show a causal connection between the two events, or to put it in terms of the well-known Latin fallacy, post hoc, ergo propter hoc? – after this, therefore because of this? The mere fact that event B follows event A does not mean that event B was caused by event A. There must be an appropriate causal connection between the two events, and we learn of that connection from the circumstances of each case, by the usual procedure of examining the relevant evidence.

40.       A publication that is liable to mislead a consumer gives rise to a tort under sec. 2 (a) of the Law, and when there is an appropriate causal connection between that publication and the injury caused – whether a direct connection deriving from reliance, or an indirect connection deriving from an appropriate chain of causation from the publication to the consumer – the consumer will be entitled to compensation. In other words, the complaining consumer must show that the misleading publication initiated a chain of events that reached him and caused him injury.

            Let us look at the case of securities. In accordance with the Securities Law, 5728-1968, the tort resulting from deceptive conduct does not require a consumer’s reliance upon a misleading publication. A party signing a prospectus that comprises a misleading element “is liable to anyone who bought securities from the offeror … for damage caused to them by the inclusion of a misleading item in the prospectus” (sec. 31 of the Securities Law. And further see: secs. 32 and 52K of that law). And as held in LCA 8268/96 Dan Reichert v. Moshe Shemesh, IsrSC 55 (5) 276 (per Strasberg-Cohen, J.), there must be a causal connection between the misleading publication and the injury incurred by the consumer (reduction of value of the security), although it is not necessary that there be direct reliance upon the publication. And see, ibid., 311-312. What applies there can be instructive here, and I believe that it should be.

41.       In conclusion, what we set out above merely establishes general guidelines for the interpretation of sec. 2 (a) of the Consumer Protection Law. In the case before us, we would say that since Barazani was unaware of Bezeq’s misleading advertisement, and knowing that Barazani was neither directly nor indirectly influenced by that advertisement, we have no need to explore the issue of reliance or that of the appropriate causal connection between a misleading advertisement and the injury incurred by a consumer who purchased an commodity or service that was the subject of the advertisement. In the future, the courts will address those issues and corollary issues, and the law will develop from case to case. For our purposes, the main point is that we will always require the existence of an appropriate causal connection between a misleading publication and the injury incurred by a consumer, and in establishing that causal connection, we will find a place for including “constructive reliance” where appropriate. In other words, sec. 2 (a) will be interpreted as comprising not only direct reliance – as would be the case were we addressing the tort of fraud under sec. 56 of the Civil Wrongs Ordinance – but also indirect reliance, reliance whose practical import is an appropriate causal connection between the publication and the injury such that we might say that the plaintiff was misled in purchasing the commodity or service. The questions that present themselves are not simple at all, as the sharp disagreements testify. Indeed, American jurisprudence overflows with examples in both directions, upon which we will not elaborate for the purpose of the matter before us, but by way of example, see Mark Oliveira v. Amoco Oil Co., 776 N.E. 2d 151 (2002) and the cases cited there.

 

On the Uniqueness of the Consumer Protection Law

 

42.       “We cannot suffice with literal interpretation, and must continue to seek the purpose of the law in order to discern the appropriate interpretation”. Having said this (at p. 598 of the judgment), my colleague Justice Strasberg-Cohen turned to the purpose of the Consumer Protection Law. In doing so, she found that the provision under sec. 2 (a) of the Law – in terms of its substance – does not accord with the fundamental principles of injury and the causation doctrine established in the Civil Wrongs Ordinance. In my colleague’s opinion, we are have a duty to interpret the Consumer Protection Law in accordance with its purpose, and that purpose leads to the conclusion that sec. 2 (a) would award damages to a consumer even if he did not himself rely upon the dealer’s offending advertisement. As my colleague writes:

 

The Law is meant to impose modes of conduct upon the commercial sector, and establish fair rules-of-the-game in the relationship between consumers and dealers. The Law intends to ensure that a dealer will not exploit its greater economic power in order to profit unlawfully at the expense of the consumer. In order to protect the consumer, the Law established “… a line of obligations and prohibitions for dealers – producers, importers, dealers and service providers – with the overall purpose of preventing deception of consumers, providing the consumer with as much information as possible about the nature of the transaction he intends to make, and giving him the tools for realizing his rights …” … the tool of class actions was intended to ensure efficient enforcement of the norms established by the Law, and to deter those with an economic advantage from any attempt to abuse the consumer’s innocence, his weakness in the contest between the two, and the inherent lack of worthwhileness in bringing suit against dealers for the injuries caused by their conduct, which may be very small relative to each consumer, yet a source of unlawful wealth for the dealer. The prohibition of deceit under sec. 2 (a) of the Law should be interpreted against the background of these objectives. Therefore, in my view, the legislature did not choose its words by accident. The statement that the “prohibition of deceit” applies to any act or omission liable to mislead a consumer was intended to establish an objective-normative test for evaluating a dealer’s conduct, and to raise the normative bar that a dealer must pass in order to meet the requirement that the Law establishes to protect consumers. A construction that would grant relief only to those consumers who were actually deceived would create an artificial distinction between the consumer public that used the goods or services that were the subject of the misleading advertising, but who were not exposed to it, and the consumer public who were exposed to the misleading information. An approach that would require actual deceit would limit the liability of a dealer only to those consumers who could show that they were actually misled by the dealer’s representation. Such an approach would reduce the deterrence that is one of the purposes of the Law, if not its main purpose.         It would make deception worthwhile from the point of view of the dealer, and would undermine enforcement of the Law. Such an approach would undermine the achievement of the Law’s purpose, in general, and class actions in that framework, in particular.

And further on (ibid., 602):   

 

In my opinion, a consumer suing on the basis of the Law is not required to show that he was actually misled in order to for him to enjoy a cause of action for damages due to a breach of the “prohibition of deceit” established under sec. 2 (a) of the Law. It is sufficient that he show that the dealer committed an act “liable to mislead a consumer”.

 

43.       Needless to say, the Petitioners agree with the opinion of Justice Strasberg-Cohen, and add that another interpretation of sec. 2 (a) – one that would require reliance upon the misleading representations of a dealer in order for a consumer to demand compensation from the dealer – would eviscerate the Law. How? An interpretation like that of the majority would, in practice, prevent the submission of class actions for deceit, and seeing as an individual action (like that of Barazani) would not be initiated, if only due to the negligible injury to each individual consumer, the result would be that the Law would not be given effect. It would be a voice crying out in the wilderness. The benefit of the Law would be lost, and we would be left with an empty shell.

44.       We addressed the issue of class actions above (see paras. 19-26), and we will comment only briefly. We do not intend to minimize the distinguished place of class actions, nor in any way detract from their importance. We would, however, add that in the absence of a clear, explicit provision –which there is not – we will not permit class actions to rule the entire field of consumer protection, while allowing it to trample fundamental principles and doctrines that have been adopted over the course of time. In this regard. We would particularly note that, from its inception, the class action was not created as a substantive right or a cause of action. A class action, for all its importance – and it is of great importance – is nothing but a procedural tool for the joining of many actions under one roof. Being what it is, we find it hard to interpret it such that it would have the retroactive power, so to speak, to change substantive principles of tort law, and among them the rules concerning causation and the principles for awarding damages. While one can question the conception created by my colleague Justice Strasberg-Cohen, it cannot be entirely ruled out. But that conception deviates so drastically from what has long been accepted, that we would expect that the Law would explicitly instruct us in this regard, and it does not.

45.       When a new law is enacted, it becomes an integral organ of the legal corpus. That is true of every law, and it is true in regard to the Consumer Protection Law. A new law is not a Robinson Crusoe who comes to a place uninhabited by laws, fundamental principles, doctrines, classifications, modes of thought and legal culture. A new law must find its place and integrate itself into the thick forest and become part of the landscape. That is the background of sec. 31 (a) of the Law, which instructs us that a prohibited act under sec. 2 (a) of the Law is to be treated as a tort. Chief Justice Barak instructs us that even without sec. 31 (a), we would classify conduct contrary to sec. 2 (a) of the Law as a tort of breach of a statutory duty. But by enacting sec. 31 (a), the legislature made that unnecessary. But either way, the main point is that the Law recognized the need to weave the new law into the cloth of the general law, and found a place for it in the Civil Wrongs Ordinance. The Law thus informs us that a prohibited act in contravention of sec. 2 (a) of the Law – and contrary to other legal provisions as well – is a tort, and thereby saved us the trouble of classifying it in one way or another. As we stated elsewhere (Cheshin, Chattels in the Law of Torts, sec. 161 at p. 161, fn. 2 (Hebrew)):

 

Classification organized “Julian laws”, and is based upon fundamental principles established therein. Commonalities and distinctions among the rules to be classified is a fundamental principle of thought. The doctrines that apply to the rules that unify a category (capacity, consideration, proximity, etc.) are causes and effects of classification. At a given point in time, classification is made on the basis of the equivalence of doctrines that apply to various rules of law. After making the classification, and the creation of the doctrine that applies to a particular cluster of laws, the doctrine will govern all that is within that cluster because they are members of a single legal class. That will also hold, mutatis mutandis, with the creation of any specific legal rule that is a member of a particular legal class (whether explicitly or by its “explication”), which will then be governed by the doctrine pertaining to that class.

 

Classification in law (and in general), is intended to simplify the task of the researcher and the interpreter, but we must always bear in mind that what we are concerned with is “nothing more than a guideline, and while it would seem proper that we employ it, there is no a priori requirement that it apply, in practice, to a given legal issue” (ibid., 161). Indeed, functionality is the main thing, while “doctrines, classifications, and definitions, we have created these for our own use; they were intended to serve us; we will control them and not allow them to control us; the power is in our hands, and we will now allow our own creations to rise up against us” (the Har Shefi case, 767, and see: CrimA 4675, 4961, 4962/97 Yisrael Rozov v. State of Israel, IsrSC 53 (4) 337, 377). As for the matter before us, we find no good reason to distinguish the cause of action under sec. 2 (a) of the Consumer Protection Law, and treat it differently than any other tort.

 

The Consumer Protection Law – A Multidisciplinary Law

 

46.       The Petitioners place class actions at the center of Creation, and in reading their briefs, it is hard to rid oneself of the impression that the substantive provisions of the Consumer Protection Law were created solely, or at least primarily, to honor class actions. Thus they conclude that in denying Barazani a right granted under sec. 2 (a) of the Law, we render the Law an empty vessel. The claim is readily refuted by the fact that class actions were introduced into the Consumer Protection Law only in 1994, that is, some thirteen years after the Law was enacted. It seems to me that portraying class actions as the prime purpose of the Consumer Protection Law, around which all other provisions of the Law orbit and bow down, does injustice to the Law.

47.       We can all agree that the purpose of the Consumer Protection Law is to achieve an appropriate balance between the individual consumer and dealers – particularly large dealers – and the Law achieves this by placing greater burdens upon the dealers. See, e.g., the Consumer Protection Law Bill, 302; LCA 8733/96 Langbert v. State of Israel, IsrSC 55 (1) 168, 175; LCA 2701/97 State of Israel v. Chertok Daniel, IsrSC 56 (2) 876, 884. For a general survey, see especially, Dr. Orna Deutch, ibid., 27-37; Prof. Sinai Deutch, ibid., 118-128. However, the Consumer Protection Law is a multidisciplinary law. It simultaneously situates itself in private law and in public law, in public administrative law, and in criminal law. The Law integrates provisions form these various fields of law in order to serve the purpose of protecting the consumer.

48.       Indeed, we find three different enforcement mechanisms in the Consumer Protection Law: an administrative enforcement mechanism, a criminal enforcement mechanism, and a civil enforcement mechanism. These three mechanisms can be found in Chapter Five (The Consumer Protection and Fair Trade Commissioner), Chapter Six (Penalties and Remedies), and Chapter Six 1 (Class Actions).  These mechanisms are separate from the substantive provisions that impose specific obligations upon dealers.

49.       In regard to the Consumer Protection and Fair Trade Commissioner, an examination of the relevant provisions of the Law reveals that the Commissioner enjoys many potent powers for overseeing the execution of the Law, for addressing complaints, etc. As stated in the Bill (ibid., 301, 311):

 

For the purpose of enforcing the law, a Consumer Protection and Fair Trade Commissioner will be appointed, who will be granted many powers to enable him to ensure that the provisions of the law are indeed carried out, and to enforce them upon dealers that do not comply.

The powers granted by the law to the Commissioner will grant him the status of an independent authority that can act efficiently … to this end, the Commissioner is granted powers that are not generally granted to authorities, among them – the authority to obtain an undertaking by a dealer to abstain from repeating offenses, accompanied by a guarantee of up to NIS 10,000, and the authority to publish the findings of his examinations, and to obtain a restraining order from the court. In addition to those powers, the Commissioner will have the authority to investigate, to seize documents and chattels, and additional executionary powers.

 

The above receives full expression in the Law. Here are a few of the powers of the Commissioner, as set out in secs. 21-22 of the Law:

 

Powers of the Commissioner

21.       If the Commissioner or the person appointed by him for that purpose concludes that it is necessary to do so for the implementation of this Law, then he may –

(1)        Enter any place used for a business, and there check whether the provisions of this Law are observed, examine documents, samples and goods, and seize anything, if it is reasonable to presume that in its respect an offense against the provisions of this Law was committed or is planned;

(2)        Interrogate any person who is connected to the matter or has information about it, and demand that he appear before him, deliver to him documents, samples and information related to the investigation, on condition that the date of a person's appearance under this paragraph shall – as far as possible – be set in coordination with him and be at a reasonable time;

(3)        Carry out tests of goods or services and publish their results, but he shall not publish anything that is liable to injure any person, if he had not been given an opportunity to present his arguments;

(4)        Inform dealers of their obligation to stop or not to repeat practices that constitute prima facie violations of the provisions of this Law.

                        Auxiliary Powers

22. (a)              The Commissioner or a person appointed by him for that purpose shall have the powers of a police officer of the rank of inspector under the provisions of section 2 of the Criminal Procedure Ordinance (Testimony), and section 3 of the said Ordinance shall apply to information recorded by him.

 

In addition, the Commissioner also enjoys additional powers, such as the power to demand an undertaking that a dealer will abstain from violating the Law (sec. 28), the authority to apply for a court order that a dealer abstain from violating the Law (sec. 30), and more.

            In addition to the Commissioner, the Law backs up the obligations that it imposes upon dealers with criminal sanctions, upon which we need not dwell. However, we would especially note sec. 23 (a) (1) of the Law, under which a dealer is subject to a year imprisonment and a fine “if it did anything liable to mislead a consumer in violation of the provisions of section 2”.

50.       These consumer protection mechanisms do not impress the Petitioners. They argue that public enforcement by means of the provisions of the Law is not enough, and add that in practice, there is under-enforcement by the authorities. They further argue that class actions are the – with a capital “T” – primary tool for the enforcement of the provisions of the Law, and we must not let this valuable tool slip from our hands. And see and compare: the A.S.T. case, para. 7 of the opinion of Beinisch, J.; the Consumer Protection Law (Amendment No. 3) Bill, 5754-1994, H.H. 396; Bar-Niv (Bornowski), “The Limits of the Consumer Class Action,” 19 Iyunei Mishpat 251 (1994) (Hebrew); Bar-Niv, “Enforcement of the Consumer Protection Law by the Commercial Sector,” 17 Iyunei Mishpat 299 (1992) (Hebrew). And compare: M. Agmon & D. Lachman-Messer, “Theories of Enforcement in the New Companies Law Bill,” 26 Mishpatim 543, 577 (1996) (Hebrew).

51.       We would answer the Petitioners’ arguments as follows. First, we have not said – and will not say – that class actions are not an important means for the enforcement of the substantive provisions of the Consumer Protection Law. Second, and this is the main point, examining the Law from within shows that, in principle, the Law rests upon several foundations. Reviewing the powers of the Consumer Protection Commissioner and examining the penal section of the Law will show that the legislature is of the opinion that those powers and sanctions greatly strengthen the position of consumers. If the authorities have demonstrated laxity in enforcing the Law, that retrospective laxity cannot influence the interpretation of the law. We would recall how other authorities operated in the past and how they operate today. We would recall the Antitrust Commissioner and the Securities Authority – how those two operated in days gone by and how they stand today. We should remember, and hope that the Consumer Affairs Commissioner will similarly gain strength, and that the enforcement authorities of the Consumer Protection Law will follow suit in regard to penalties. But that is for the future. As for the present, the Petitioners’ arguments say nothing that would directly influence the interpretation of the Law.

52.       One last comment in this regard. We have stated elsewhere (see para. 12, above) that the Consumer Protection Law does not accept the actio popularis “in blank”. The proof is that a person does not acquire a right to bring a class action unless he also has an actionable personal right (see sec. 35A (a) of the Law). If we were to adopt the interpretation of sec. 2 (a) of the law advanced by the Petitioners, we would find ourselves indirectly introducing the actio popularis into the Law, if not in its fullest sense, at least in principle. By this interpretive process, we borrow a concept of public law – from constitutional law, administrative law, and primarily, from criminal law – and make it part of private law. It is as if we have returned to the days of old, when the enforcement of the law – civil and criminal – was in the hands of the individual. In those days, and in the absence of a central government that could impose its will upon the entire state, law enforcement was decentralized, and the powers and authority of the individual were of primary importance for the enforcement of the law. Granting Barazani a right to sue, as the Petitioners understand the Law, returns us to those early days, if by a sophisticated, modern apparatus. We would immediately add that we do not mean to criticize the need for decentralization of enforcement. We say this because we do not believe that the Law intended, as the Petitioners argue, to affect such a mini-revolution as that we have described without saying anything expressly to that effect. But we have not heard the Law say anything – neither loud nor clear.

 

Presumption

 

53.       Justice Strasberg-Cohen recommends that we establish a presumption that would assist consumers in their battle with dealers, or in her words (at p. 603):

 

Were I of the opinion that actual deception of the consumer, and reliance upon the dealer’s representation were required – and I do not – then, in light of the relative power in the relationship between the consumer and the dealer, and in order to deter the commercial sector, I would favor a presumption by which when a dealer makes a representation that is liable to mislead the consumer, and that representation is widely publicized in order that it reach the consumer public, the consumer who purchases the goods or services that were the subject of representation would be deemed to have been exposed to the representation and had relied upon it…

 

Chief Justice Barak preferred to leave that question in abeyance, inasmuch as there was no need to decide it (ibid., 621). Careful examination – even without delving deeply into it – shows that the subject of the presumption raises no small number of difficulties. Inasmuch as it is not necessary that we decide the issue, we will leave it for the future.

           

Does this spell the End of Collective Actions on the basis of the Consumer Protection Law?

 

54.       The Petitioners raise the fear, and even argue, that the conditions of reliance, or if you prefer, the conditions of causation – as established in the judgment under review – between the conduct of the dealer and the harm to the consumer will put an end to class actions under the Law, by which we will call down great harm upon ourselves. I cannot agree. Our opinion is centered upon the question of when, and under what circumstances, does a plaintiff under the Consumer Protection Law acquire a personal cause of action against a dealer. Indeed, each one of the plaintiffs in a class action must himself have a personal right to compensation – like the representative plaintiff – and have suffered harm causally connected to the conduct of the dealer. So much for the right itself. However, the legislature and secondary legislature took a significant step toward the members of the class insofar as proving the cause of action. Thus, if the consumer prove the existence of a personal cause of action, and if the complaint be certified as a class action, then the court may decide how the members of the class are to prove the injury they incurred. Or, as set forth in reg. 9 of the Consumer Protection (Procedures in regard to Class Actions) Regulations, 5755-1995:

 

                        Actions deriving from Judgments

                        9.  (a)   If a court decides that a cause of action has been proven, it may order that every member of the class prove his right to the requested remedy by means of an affidavit in which he details the harm he incurred.

                             (b)   …

                             (c)   Subsection (a) notwithstanding, the court may, at the request of the plaintiff, exempt the members of the class, or part of them, from submitting affidavits if it finds, under the circumstances of the case, that submitting them will unduly burden the members of the class, and it may order that the damage be proven in another manner as it shall see fit.

 

In terms of the matter before us, if Barazani had a personal cause of action, and the court had recognized his right to submit a class action, and if the court had accepted the class action as such, then the court would have been free to establish appropriate means for proving the causal connection between the misleading advertisement and the harm caused each of the members of the class, as well as the harm caused to each of them, as it saw fit. Or, as stated in reg. 9 (a) above: “that every member of the class prove his right to the requested remedy by means of an affidavit in which he details the damage he incurred”. So, by affidavit, or as stated in reg. 9 (c), even in any other way that the court shall see fit.

55.       Moreover, in CA 1337/97 Tnuva v. Rabi (recently delivered and as yet unpublished), Justice Naor (dissenting) stated that, in her opinion, the Consumer Protection Law should adopt an arrangement called “indemnification and special compensation” which is found in regard to class actions in several laws, among them sec. 46I of the Restrictive Trade Practices Law, 5748-1988, sec. 16I of the Banking (Service to Customer) Law, 5741-1981, and sec. 62I of the Insurance Business (Control) Law, 5741-1981. These provisions are identically worded, and we shall quote sec. 46I of the Restrictive Trade Practices law:

 

Indemnification and Special Compensation

46I.      (a) In the case that a ruling of pecuniary compensation is handed down by a Court in a Class Action, such Court may:

(b) In the case that the Court believes that pecuniary compensation of all or some of the members of the group is impractical under the circumstances, either because they cannot be identified and the payment cannot be made at a reasonable cost or for any other reason, it may provide for any other remedy as it deems fit under the circumstances, whether in favor of all or some of the group, or in the public interest.

 

A similar – though somewhat different – arrangement can be found in sec. 216 (b) of the Companies Law, 5799-1999, which addresses damages in class actions under that law. From these provisions, we learn that where awarding separate compensation to each member of the class is impractical, the court may impose special compensation arrangements or other remedies upon the defendant, as it may deem appropriate, as long as the defendant is not required to pay more than the damage it caused. And see: Daar v. Yellow Cab Company, 433 P. 2d 732 (1967).

 

Comparative Law

 

56.       The attorneys for the parties, each in its own cause, relied upon comparative legal precedents, primarily from American consumer protection law. An examination of the case law serves to show that support can be found for (virtually) every approach. American law is state based, and despite the reciprocal influences of the laws of the various states, each state follows its own path. While the language of the laws is similar – and even similar in certain ways to our own Consumer Protection Law – the interpretive policy of the courts differs from place to place. The primary differences center, not surprisingly, upon the subject of reliance and causation. Thus, for example, there are places where a precondition to the tort of consumer deception is that the consumer relied upon the misleading representation. In other places, no reliance is required at all. And still in others, the case law has created a presumption of reliance. And we need not point out that each is unlike the others.

            Moreover, reading the American case law reveals variations in the application of the various laws, both in regard to the conditions for reliance and in regard to causation. Thus, for example, in the case of Miller v. General Motors Corp., 2003 U.S. Dis., Lexis 1467 (a case decided in January 2003 by the United States District Court for the Northern District of Illinois, Eastern Division), the court addresses some of the differences between the laws of the various states – primarily in regard to issues of reliance – and we find the following marginal note by the court:

Some of the issues on which differences exist include: … differences in standards of reliance.

The court adds that the law of the state of Illinois is also insufficiently clear in regard to reliance. And also see, for example: the Oliveira case (above, para. 41), Connick v. Suzuki Motor Co., Ltd., 675 N.E.2d 584 (1996); Zekman v. Direct American Marketers, Inc., 695 N.E.2d 853 (1998).

            Precedents are thus brought to us from the four corners of the earth, and there is much confusion. Indeed, the legal provisions differ, as do the trends and social, economic and legal outlooks that characterize the different states and that guide the courts – each according to its own path – and we would be hard pressed to distinguish the universal from the particular. We may learn techniques and modes of thought from American law, but I fear, not much more.

57.       In reviewing the sea of citations imported from the United States and laid out before us, I cannot but be reminded of the words of Justice Haim Cohn in FH 12/63 Leon v. Ringer IsrSC 18(4) 701 [1964], where the Supreme Court was asked to decide upon the “eggshell skull” rule. This is how Justice Cohn began his opinion in that case (ibid., 706):

 

The rule established in CA 378/62 … it that the tortfeasor is responsible for the harm caused by his negligent act, even if – due to the “eggshell skull” of the victim – the extent of the injury exceeded anything that could be expected or foreseen. In the Further Hearing on this doctrine, the learned counsels called down upon us an abundant rain of precedent, sources, articles and comments, among them Israeli, American, South African, and Australian, to the point that the waters of the foreseeability doctrine flooded the banks. In fear of being swept away by such a torrent, and drowning in a sea of various decisions and statements, I cleared my desk of all the books – among them a compendium of nineteen articles published on the subject in various journals, which the attorney for the National Insurance Institute compiled and bound for us with discerning taste – and I commenced writing with only the Civil Wrongs Ordinance, 1944, and the said decision of this Court in CA 378/62; 390/62 set before me.

 

Indeed, in a moment of such distress – a distress of lémbarras du choix (de richesse) – we can but latch onto the fundamental principles of the law. That is what we have done, to the best of our ability, in this opinion. And see, for example: Gary L. Willson & Jason A. Gilmer, “Minnesota’s Tobacco Case: Recovering Damages without Individual Proof of Reliance under Minnesota’s Consumer Protection Statutes”, 25 Mitchell L. Rev. 567 (1999); Samuel Issacharoff, “Class Actions in The Gulf South Symposium: The Vexing Problem of Reliance in Consumer Class Actions”, 74 Tulane L. Rev. 1633 (2000).

 

Conclusion

 

58.       The Petitioner before us, Barazani, did not see the misleading advertisement, did not rely upon it – either directly or indirectly – and in any case, was not misled. There is no appropriate causal connection between the advertisement and the injury allegedly incurred by Barazani, and, therefore, his suit must be denied. I would, therefore, recommend to my colleagues that we dismiss the petition and affirm the judgment of the Supreme Court.

 

And it came to pass after these things[7]

 

59.       I have read the opinion of my colleague Justice Mazza. My colleague comments rather sharply upon my opinion. He primarily seeks to smash the wall I built around the judgment, and pulverize the foundations upon which I built my legal conclusions. Inasmuch as my colleague’s opinion was not before me when I wrote my opinion, I would ask that what I wrote be seen as an answer to my colleague’s remarks. And having thus replied to my colleague, I would add two observations in regard to the disagreements that have arisen between us.

60.       My colleague is of the opinion – and so he holds – that in interpreting and deciding upon the scope of the Consumer Protection Law, we must bear in mind that we are in a “consumer environment” as distinguished, for example, from a tort-law environment, and that we must give special force to the “uniqueness of the consumer cause of action”. Because we are acting in a consumer atmosphere, we must realize that the causal connection between a prohibited act and the injury in the Consumer Protection Law must be a “consumer causal connection”, that a prohibited act of deception is “consumer deception”, that the injury incurred by the consumer is “consumer injury”, etc. The borders and scope of each of these concepts – concepts whose core is the consumer as such – remain somewhat blurry. However, it is unambiguously clear that appending the term “consumer” to each of these long acknowledged concepts – the concepts of “causal connection”, “deception”, “injury”, etc. – shows that the interpretation of those concepts is not the usual one, and may contradict the usual interpretation. A “consumer causal connection” is not a regular “causal connection”, “consumer deception” is not the usual “deception”, “consumer injury” is not regular “injury”, etc. Thus, even though the Law clearly instructs us that acts and omissions prohibited under Chapters Two, Three and Four of the Consumer Protection Law are to be treated as torts under the Civil Wrongs Ordinance, my colleague intends to disengage himself – in practice – from the doctrines of tort law, while seeking to construct a new conceptual universe whose terms and expressions are the terms and expressions of concepts familiar to us from tort law, but whose content is a “consumer content” that is remote from tort law.

61.       In essence, my colleague’s words destroy the existing world – the old world – and create a new world in its place. Thus, the passes the old world and a new world comes into being, all on the basis of the purpose of the Consumer Protection Law. For my part, I would argue that I find such an interpretation problematic, and I fear “the disengagement from firmly-rooted, ancient legal traditions” (Prof. Sinai Deutch, “Consumer Class Actions: The Demand for Personal Reliance on Misrepresentations of the Deceiver,” (2 Moznei Mishpat 97, 126 (2001-2002) (Hebrew)). Not only do I not find any firm anchor in the Law for my colleague’s far-reaching interpretation, but the fears gnaw at me if only because the boundaries of the new world are not sufficiently clear, and the consequences that may result from the new conception are beyond me. My colleague seeks to disengage us from the gravitational center that we have become accustomed to orbit for so many years, but he does not provide us with a firm footing to tread upon. I would go so far as to say that in this new world that my colleague creates, we must begin from the beginning. The sensation is of floating in space, and the spirit of God hovers upon the waters.

            Thus we see that sec. 35A (b) of the Consumer Protection Law states: “Where the cause of action is injury, it is sufficient that the plaintiff show that the consumer suffered injury.” On this provision, my colleague states as follows:

 

I am of the opinion that we may learn from sec. 35A (b) that for the purpose of filing a class action, it is sufficient to show the existence of a consumer injury, and there is no need to show a factual causal connection between the breach and that injury. This construction accords with the special purposes of the consumer class action, which I addressed above, which are also not consistent with the requirement of personal reliance.

 

For my part, I would say that I tried but could not understand how we could award one person damages from another person for an injury that was not causally connected to that other person’s acts or omissions. What would that be like? It would be like saying that Reuben and Simon make a binding agreement between themselves solely on the basis of Reuben’s offer. Then, even if Levi breaches an obligation placed upon him, and even if Judah incurs the injury, Judah will not collect damages from Levi for that injury – so it appears to me – unless he can show some rational causal connection between Levi’s breach and the injury that he, Judah, incurred.

            My colleague’s construct may have been appropriate to the formative period of the Common Law, but today, with statutes from horizon to horizon, I find it difficult to free myself from the feeling that adopting my colleague’s approach – on its face – would tresspass the boundaries of the legislature by no small measure, and first and foremost, lead us into unknown territory. I would quickly add this: I did not say – and do not mean to say – that my colleague’s approach (at least in part) is not the lex ferenda. I did not say – and do not mean to say – that it is not proper that we interpret the Consumer Protection Law in a “consumer spirit” and more broadly than tort law. I agree that it would be appropriate to do so. But I fear that my colleague may have gone too far in his interpretation of the Law.

62.       A second comment: Over the course of his entire opinion, my colleague attacks the reliance doctrine, as well as my opinion allegedly based upon that doctrine. I am afraid that my colleague is mistaken. My opinion is expressly based upon the subject of the proper causal connection, and not upon the reliance doctrine in the narrow sense, and I believe that, in that regard, there are no deep disagreements between us. See, for example, paras. 39 through 41 of my opinion.

63.       Unlike my colleague Justice Mazza, whose approach is a torts approach – “torts” in the broad sense of the term – my colleague Justice Dorner chose to follow a different path, one beginning in contract law and ending in the Consumer Protection Law. My colleague is of the opinion that a consumer’s right against a dealer in circumstances like those before us “is firmly anchored in established doctrines of contract law,” and upon those doctrines, she grounds her conclusion that the Petitioner is entitled to the status of a class-action plaintiff. More precisely, my colleague is of the view that the Petitioner incurred compensation-worthy injury even though he was not exposed to the misleading advertisement, and that injury can serve as a springboard to the status of a representative plaintiff.

64.       I do not intend to argue with my colleague on the matter of the lex ferenda. The matter is too complex for me even to wish to express an opinion upon it, and we have heard no arguments grounded upon contract law. Our common assumption was, and is, that we are concerned with tort law. That was the field that was plowed by the plowers, and the one that we, too, plowed. For my part, I can say that to the best of my understanding, sec. 2 of the Consumer Protection Law – by its plain language and on its face – does not state what my colleague seeks to find there. The case law has always assumed that Section 2 of the Law addresses precontractual deceit, and in any case, it was the (alleged) existence of “deceptive advertising” that formed the basis of the Further Hearing with which we are concerned. That is the basis of the disagreement before us, and that – and only that – was addressed in our opinion above. See and compare: Prof. Sinai Deutch, Consumer Protection Law, ibid., 398-400, and the sources cited there.

            Contract law indeed adds causes of action and remedies to those causes of action and remedies provided by the Consumer Protection Law, but consumer protection as expressed in the Consumer Protection Law did not situate itself in the field of contract law. On the contrary, consumer protection law distanced itself from the field of contracts, seeking to reside in the field of tort law. That is, after all, what the Law says in stating that a deception such as that before us is to be treated “as a tort under the Civil Wrongs Ordinance [New Version]”. Consumer protection law lives its civil life in the field of tort law, the doctrines of that field serve as the basis for the rights that the Consumer Protection Law grants to consumers, and the general atmosphere is one of tort law. Knowing that, we further know that a class action under the Consumer Protection Law – as provided under sec. 35A of the Law – treats of that “tort” action that the Law created. Thus, when sec. 35A of the Law states that a consumer may bring a class action “on behalf of a group of consumers on a cause of action under which he can bring suit in his own name under this Law, and against any defendant that the consumer may sue in his own name”, it is speaking of nothing other than that cause of action in “tort” that the Law grants the consumer. Even if the consumer has a cause of action against a dealer in “contract law” – whether directly based upon contract law or more closely related to contract law – that suit will find its place – to the extent that it has one – in general contract law and not specifically in the Consumer Protection Law. In any case, the consumer will not be able to initiate a class action based upon the Consumer Protection Law for such a cause of action.

 

                                                                                                            Justice

 

Chief Justice A. Barak:

 

            I concur in the opinion of my colleague Justice Cheshin. I also concur with his comments in regard to the opinion of my colleague Justice Mazza. As for the opinion of my colleague Justice Dorner, I, too, am of the opinion that, inasmuch as arguments were not heard in regard to the application of contract law to this case in the District Court, or before the three-judge panel of the Supreme Court or in this Further Hearing, I would not wish to take a stand upon that issue in these proceedings.

 

                                                                                                            Justice

 

Deputy Chief Justice T. Orr:

 

            I concur in the opinion of my colleague Justice M. Cheshin.

 

                                                                                                                        Justice

 

Justice D. Beinisch:

 

            I concur in the opinion of my colleague Justice Cheshin, and thereby also add my voice to that of the majority in CA 1977/97.

            The approach of my colleagues, who seek – each in his own way – to construe the provisions of the Consumer Protection Law in a spirit of a consumer doctrine that would protect class actions, is very appealing. Protecting consumers against economically powerful dealers by levelling the playing field is not merely an appropriate purpose, but also expresses values that we seek to further as part of an overall economic vision. I also agree with the approach that sees class actions as an important tool for advancing consumer protection and for restraining economically dominant bodies from abusing their power.

            Nevertheless, I do not see how one can extricate oneself from the legal framework that the legislature established, under sec. 33(a) of the Consumer Protection Law, for damages for a “consumer tort”, which is a tort-law framework. For my part, I do not share my colleagues’ fear that a demand for a causal connection between the tort and the injury will eviscerate the remedy of damages that the Law provides. One must distinguish between the substance of applying tort-law doctrines and the nature of the causal connection and its proof. The nature of the causal connection, the strength of its proof and the means for its proof may be decided in accordance with the circumstances of each case, and the consumer background may result in more lenient rules. One must not, in principle, confuse that with the foundations upon which the legislature grounded the remedy of damages. The wording of sec. 31 (a) of the Consumer Protection Law bars the way to developing a theory of consumerism as a branch of compensation divorced from the foundational concepts of tort law.

            We may assume that a theory of consumerism will develop, and that consumer suits will find their path in regard to the remedy of compensation, as well, and case law and practical experience will lay the appropriate groundwork for proving the causal connection, without casting off the foundational principles of the theory of compensation for loss.

 

                                                                                                            Justice

 

Justice Tova Strasberg-Cohen:

 

1.         The suit before us was filed on the basis of the Consumer Protection Law, 5741-1981 (hereinafter: the Law). It is based upon a cause of action and a remedy established in the Law, and it was filed as a class action in accordance with it.

            The provisions of the Law that are relevant to these proceedings are sec. 2 (a), secs. 31 (a) and (a1), and sec. 35A of the Law. The central question that we must consider and decide is whether, under the prohibition upon deceit established in sec. 2 (a) of the Law, a plaintiff can be awarded pecuniary damages even if he was not exposed to the misleading representations and therefore, did not rely upon them. I addressed this question at length in my dissent in the Appeal that is the subject this petition (CA 1977/97 Barazani v. Bezeq – Israeli Telecommunications Company Ltd., IsrSC 55 (4) 584 (hereinafter: the Appeal). I have reviewed all of the relevant material in the Appeal, and especially the opinions of my colleagues Chief Justice Barak and Justice Englard, who formed the majority, as well as that of my colleague Justice Cheshin in these proceedings, and the conflicting opinions in the publications of the various scholars (Prof. Sinai Deutch, whose opinion coincides with mine, and Prof. M. Deutch and Dr. O. Deutch, whose opinions correspond with that of my colleagues, see: S. Deutch, “Consumer Class Actions: The Demand for Personal Reliance on Misrepresentations of the Deceiver,” 2 Moznei Mishpat 97, 121 (2001-2002) (Hebrew) (hereinafter: Deutch, “The Demand for Personal Reliance”); O. Deutch, The Legal Status of Consumers (Nevo, 2002) 414 (Hebrew); M. Deutch, Commercial Torts and Trade Secrets (Nevo, 2002) 49 (Hebrew). After reading all of the above, I have concluded that my opinion remains unchanged. I will, therefore, clarify my position and focus upon the questions under debate, and preface my opinion with a few words on the integration of a cause of action under the Consumer Protection Law in a class action under that law.

 

The Consumer Protection Law

 

2.         The Consumer Protection Law, which forms part of the consumer legislation, serves many purposes, but at their heart is the protection of consumers against economically advantaged dealers, and narrowing the power gap and lack of equality in the relative negotiating positions of the parties. Its purpose is to impose proper conduct upon the commercial sector, and to establish rules of fair play in the relationship between consumer and dealer. It was intended to reinforce the personal autonomy of the consumer and his right to dignity by ensuring his ability to make informed choices in regard to products and services on the basis of accurate, relevant information, and by preventing abuse of the consumer’s relatively weaker position. It was intended to deny a dealer the ill-gotten gains obtained from the consumer for a product or service, and thereby restore to the consumer what had been unlawfully taken, and to make such conduct not only improper but also unprofitable. Consumer protection also serves to encourage fair competition among dealers, which is an important factor in proper market and economic activity (for a survey of the purposes of consumer law, see: O. Deutch, supra, at pp. 27-37, and see the Explanatory Notes to the Consumer Protection Law Bill, 5740-1980, at p. 302).

3.         As for as consumer contracts, there are those who view them as a separate branch of general contract law. Each of those branches has its own point of reference. That of general contract law is the glorification of the autonomy of the parties. Its provisions are dispositive, and governmental intervention through criminal and administrative provisions is limited. As opposed to this, consumer protection law is obigatory, and in achieving its objectives, it comprises criminal and administrative sanctions. (For a survey of the characteristics of civil law as opposed to consumer law, see: S. Deutch, “Consumer Contracts Law versus Commercial Contracts Law,” 23 (1) Iyunei Mishpat 135, 150-152 (5760) (Hebrew); S. Deutch, Consumer Protection Law – Fundamentals and Principles, vol. 1 (5761) 294-289 (Hebrew)).

 

Class Actions

 

4.         The Consumer Protection Law provided consumers with efficient enforcement mechanisms for the protection of their rights, and primary among them is the class action. I have had the opportunity to address the purposes of class actions on more than one occasion, and I shall not repeat what I have already stated (see: CA 2967/95 Magen veKeshet Ltd. v. Tempo Beer Industries Ltd. [1997], IsrSC 51(2) 312, 322-323; LCA 4474/97 Tatzet v. Silberschatz, IsrSC 54 (2) 577, 586-587; LCA 8268/96 Reichert v. Shemesh, IsrSC 55 (5) 276, 288-289; LCA 3126/00 State of Israel v. A.S.T Project Management and Manpower Ltd., IsrSC 57 (3) 220). I will suffice in saying that in the broad sense, class actions are intended to prevent the unjust enrichment of powerful economic actors that concentrate production, industry and services for mass consumption at the expense of the man in the street who turns to such actors for the goods and services that he uses. They are also a means for enforcing the law at the civil level. The possibility afforded to the individual consumer of bringing suit, by class action, in the name of an anonymous group of consumers who were harmed by a violation of the law, achieves proper enforcement and prevents situations of under-enforcement that harm the individual consumer, the group of consumers and the general public. Under-enforcement leads to the undermining of public faith in the general social order and the rule of law. Class actions also serve the public interest in efficiency and economy of resources, and prevent a lack of uniformity in the decisions of the courts in similar individual cases (see: Nina Zaltzman, Res Judicata (Ramot, 1991) 427 (Hebrew).

 

Interpretation

 

5.         The suit before us is based upon a cause of action in the Consumer Protection Law, and the request that it be certified as a class action is based upon the same Law. This brings about an merger that has consequences for the proper interpretation of the provisions of the Law relevant to our examination. That interpretation begins with the language of the Law but does not end there. From among the possible interpretations that the language of the Law makes available, we must choose the possibility that is consistent with the objective and purpose of the Law. We can learn the purpose from the Law, the placement of the provision in the Law, the general structure of the Law, from the normative economic and social context of the Law’s provisions in relation to one another and in relation to other laws of similar character, and from extra-legal sources, such as the legislative and parliamentary history, all against the background of the accepted values of our legal system (CA 165/82 Kibbutz Hazor v. Rehovot Assessment Officer, IsrSC 39 (2) 70).

            From reading the relevant legal provisions, and especially secs. 2 (a) and 31 (a) and (a1) of the Law, we find that the words of the Law alone are insufficient to exhaust the substance of these provisions. It seems to me that the use of the procedural device of initiating a suit as a class action, and the nature of the Law as a consumer law, pave the way for an appropriate interpretation of the Law, and for providing the correct meaning to its provisions.

 

What is Agreed and What is Disputed

 

6.         At the outset, I would like to remove the stumbling blocks from the path that my colleagues and I are travelling, clarify what is and what is not in dispute, and focus upon what is in dispute.

            There is no dispute that a class action does not create new causes of action and that it is but a procedural device that allows for the joining of many actions into one, for procedural and substantive reasons. There must be a personal cause of action as a precondition to making a class action available to the plaintiff. This requirement is common to all the laws that regulate class actions (in this regard, see, for example, my opinion in CA 2967/95, above). My colleague Justice Cheshin addresses this matter at length, and I will not add to that. I will only state that, like him, I was and remain of the opinion that a class action does not create new causes of action and is nothing other than a procedural device available to a person who has a personal cause of action under the Law (sec. 35A (a) of the Law).

7.         From here I will now proceeed to the cause of action of “prohibition of deceit”, which is the cause of action in the matter before us, and I will begin by pointing out the questions that are not in dispute in regard to this cause of action established under sec. 2 (a) of the Law, which states as follows:

 

                        Prohibition of Deceit

2. (a) A dealer must not do anything – by deed or by omission, in writing, by word of mouth or in any other manner, also after the transaction has been contracted – which is liable to mislead a consumer in regard to any material element of the transaction … (emphasis supplied – T.S.C.).

 

There is no dispute that the prohibition of deceit established under sec. 2 (a) of the Law is not a prohibition of “result” that requires actual deceit, but rather a prohibition of “conduct” according to which one may not do anything “liable to mislead a consumer”. Therefore, in order for a cause of action to arise, there is no need to show actual deceit in practice. And so I stated in my opinion in the judgment under appeal:

 

…in my opinion, the consumer who files suit under the Law is not required to show that he was actually deceived…it is sufficient that he show that the dealer committed an act that was “liable to deceive a consumer” (p. 602).

 

Similarly, Chief Justice Barak states in the same judgment:

 

…sec. 2 (a) of the Law does not require deceit in actual practice. What is prohibited thereby is doing something “liable to deceive a consumer”. The purpose of the prohibition is to ensure that the consumer receive full and accurate information. The prohibition established by sec. 2 (a) of the Law is not a prohibition of “result”; it is a prohibition of “conduct”. The prohibition established in sec. 2 (a) of the Law… (p. 617).

 

And thus states Justice Cheshin in this Further Hearing:

 

The prohibition is one of conduct, and a dealer contravenes the prohibition even if he does something – by act or omission – that is only “liable to mislead” a consumer, i.e., even if no one was misled by it. …The standard of conduct required under sec. 2 (a) is higher than the usual standard in other laws. … whereas sec. 2 (a) of the Consumer Protection Law prohibits the conduct per se, even in the absence of resulting injury (para. 10, emphasis supplied – T.S.C.).

 

            (And see: Deutch, “The Demand for Personal Reliance”; O. Deutch, supra, p. 390; M. Deutch, supra, p. 49).

8.         There is no question that Bezeq’s advertisements appeared to be “liable to mislead a consumer” in regard to the manner of calculating charges for direct-dial international calls and their price (see: my opinion in the Appeal, at pp. 594-596); the opinion of the Chief Justice in the Appeal, at p. 617, opposite the marginal letter B). That being so, the consumer acquired a cause of action under sec. 2 (a) of the Law, and a restraining order and declaratory relief could be granted (the Chief Justice, ibid., at p. 617, opposite the marginal letter B). However, in the matter at hand, the class action that the court was asked to certify was not for declaratory relief, but rather for damages arising from injury incurred by consumers as a result of the advertisement that was liable to mislead. Here, too, my colleagues and I travel the same path, inasmuch as I agree that in order to acquire a cause of action for damages for injury caused by a publication that is liable to mislead, one must make a prima facie showing that the publication was liable to mislead, that injury was incurred, and that there was a factual and legal causal connection between the publication and the injury (see my opinion in the Appeal, at p. 602, opposite marginal letter A, and at p. 604, opposite marginal letter C).

9.         No one disputes that, in the case before us, the requirement of “liable to deceive” in sec. 2 (a) of the Law was met. My colleagues and I part ways in regard to the question of whether the Petitioner-consumer suffered harm, and whether there can be a causal connection between the publication and the injury in the absence of the consumer’s reliance upon the potentially misleading publication. My answer to both questions is in the affirmative for a number of reasons. First, establishing deceit as a prohibition of conduct but recognizing a remedy of damages for its violation only if actual deceit is proven, renders the primary prohibition of the Consumer Protection Law lacking of any real civil remedy. Although sec. 32 of the Law grants the remedy of cancelling the sale, the limitations of that remedy are so numerous that there is almost no reason to employ it, and indeed, not a single example of the application of this provision of the Law is to be found in the case law. Second, it is unlikely that a consumer will go to the effort and expense involved in obtaining a restraining order for the benefit of the general public. Third, over the years of the existence of the Consumer Protection Law, only limited recourse has been made to the criminal sanction, and it would appear that the criminal sanction does not significantly deter a powerful dealer from misleading the consumer public when he can pocket large profits (ibid., at p. 106). The same is true of administrative sanctions. Fourth, an approach that makes damages contingent upon actual deceit limits the dealer’s liability only to those consumers who can prove that they were actually misled by the dealer’s misrepresentations, and makes deception worthwhile from the dealer’s perspective. Fifth, an interpretation by which damages can be sought only by those consumers who were actually misled will create an artificial distinction between those consumers who actually used the misrepresented product or service but were not exposed to the misrepresentation, and those consumers who were aware of the misrepresentation. Sixth, in other cases in the past, this Court did not hesitate to broaden the choice of remedies beyond those delineated by a law, so as not to empty the law of content (thus, for example, in regard to sec. 12 (b) of the Contracts (General Part) Law, the case law established that even though the provision provides only the remedy of damages, the available remedies should not be limited only to those set out in the law when broader remedies, like enforcement, are justified (CA 829/80 Shikun Ovdim v. Zepnick, IsrSC 37 (1) 579; CA 579/83 Sonnenschein v. Gebso Bros., IsrSC 42 (2) 278; CA 986/93 Kalmar v. Guy, IsrSC 50 (1) 185)). Such an expansion is also appropriate in regard to the interpretation of secs. 31 (a) and 31 (a1) of the Law for the purpose of protecting consumers. Here I should note that such a partial expansion was made by my colleague the Chief Justice, who was of the opinion that even a consumer who was not misled and who did not suffer injury could be granted a restraining order against a dealer, although such a remedy does not appear in the Consumer Protection Law. Seventh, the Consumer Protection Law establishes other prohibitions that do not require proof of actual reliance, and their breach entitles the consumer to a broad right to damages (thus, for example, in regard to a failure to supply particulars in regard to a credit transaction (sec. 9), the court may – in addition to the provision for cancelling the transaction and refunding the consideration or part thereof to the consumer – “charge the dealer with the expenses caused to the consumer, and it may issue any other direction which it deems just” (sec. 11)). What reason is there to grant an independent remedy of damages that includes granting broad discretion to the court in regard to a violation of these prohibitions, while not for a violation of the Law’s central prohibition – the prohibition upon deception? (also see: Deutch, “The Demand for Personal Reliance,” at pp. 106, 121-127).

 

As a Tort

 

10.       All of the above reasons constitute a conceptual foundation for examining whether it is possible to interpret the relevant sections of the Law in a manner that would grant damages to a consumer in the circumstances of this case, while remaining faithful to the principles grounding the rules of interpretation. The provisions of the Law relevant to the remedy of damages are secs. 31 (a) and 31 (a1) which state as follows:

 

Compensation            

31. (a) Any act or omission in violation of Chapters Two, Three, or Four "A" shall be treated as a tort under the Civil Wrongs Ordinance [New Version].

(a1) Consumers injured by the wrong are entitled to remedies for the wrong and so are dealers, who in the course of their business are injured by deceit, as said in section 2 (emphasis added – T.S.C.).

 

The upshot of these sections is that the “prohibition of deceit” shall be treated “as a tort” under the Civil Wrongs Ordinance, and that the right to a remedy for the tort is granted to an injured consumer. The wording of these sections is problematic, and raises a question as to the meaning of the phrase “as a tort”. Much was written on the meaning of that phrase in the Appeal and in the opinion of my colleague Justice Cheshin in this Further Hearing. It might be noted that a review of the statutes reveals a number of laws comprising various statements in regard to the definition of “tort” in regard to the Civil Wrongs Ordinance. Conduct in violation of the law has been defined as “constituting a tort and the provisions of the Civil Wrongs Ordinance [New Version] shall apply thereto” and a wrongful act has been defined as being “as a tort under the Civil Wrongs Ordinance [New Version]” or “as an injury for which damages may be sought under the tort law” [for a list of the laws, see: Deutch, “The Demand for Personal Reliance,” at pp. 128-129). The differences in wording may be intentional or may be accidental. In any case, it is clear that this expression makes certain legal prohibitions into prohibitions that are like torts under the Civil Wrongs Ordinance. The question is whether they thus become torts for all intents and purposes. In my view, the statement “Any act or omission … shall be treated as a tort under the Civil Wrongs Ordinance...” should be understood as creating a new cause of action that is like a tort. Such a cause of action is not parallel to a tort but comparable to a tort in the sense that it applies the doctrines of the Civil Wrongs Ordinance to the act or omission. In the matter before us, it applies the compensation doctrine and the causation doctrine (see the opinion of Justice Cheshin, para. 34). However, this cause of action is special to the Consumer Protection Law. It is independent in nature, and it must be interpreted within its context, in the framework of the purpose it was intended to serve, and in relation to the said doctrines, which must be interpreted in a manner that is consistent with the purpose of the Consumer Protection Law and its enforcement by means of class actions. Chief Justice Barak’s statement in his recent opinion in CA 2622/01 Director of Property Improvement Tax v. Aliza Levanon (not yet published) are apt to the matter before us:

           

A statute is a living entity that resides in its social environment. With changes in social conceptions, the meaning of the statute changes in the understanding of the social environment in which it operates. … Life is in constant motion, and with it, the law. This is the basis of the interpretive approach – accepted in England and Israel – that “the law is always speaking”, and that the law must be given an updated interpretation. Interpretation is a renewing process. Old language must be given modern meaning that is consistent with the needs of modern life. Thus the statement of Prof. Radbruch, that “The interpreter may understand the law better than its creators understood it; the law may be wiser than its authors” (see G. Radbruch, “Legal Philosophy,” in The Legal Philosophies of Lask, Radbruch and Dabin,   K. Wilk, trans. (1950) 141). … The laws of a society move with it over the course of its history, and in that movement, their meaning changes in order to serve the society in which they act. I addressed this is the Lindorn case, noting:

“The meaning to be given to a legal statement – like the statement ‘his spouse’ – is not fixed for all times. The law is part of life, and life changes. As reality changes, the meaning of the law changes. The language of the law remains as it was, but its significance changes along with the ‘changing conditions of life’ (ibid., p. 32).”

 

I need only adopt this appropriate, correct approach in the matter before us, and applying it requires an interpretation that is appropriate and proper to the issue of injury and causation. In my opinion – as opposed to the opinions of my colleagues – the requirements of injury and causation between the violation of the “prohibition of deceit” and the injury are met in the matter before us.

 

Injury

 

11.       Injury how? Section 31 (a1) of the Law states: “Consumers injured by the wrong are entitled to remedies for the wrong…”, while sec. 35A (b) states: “Where the cause of action is injury, it is sufficient that the plaintiff show that the consumer incurred injury”. In the matter before us, monetary injury is claimed as the result of overcharging consumers in comparison to what should have been charged had the calculation been made as advertised. That differential is sufficient to meet the Law’s requirement of injury. The injury incurred by a consumer who utilized the international direct-dialing service is expressed in the difference between the price advertised by Bezeq, and the price actually charged (hereinafter: the “price differential”). The price differential is an injury, inasmuch as had the advertised price been charged, the consumer would have saved the excess payment. That differential is an actual out-of-pocket loss that should be deemed an injury as required by the Law.

 

Causation

 

12.       Causation how? As no one doubts that there was a publication liable to mislead, and having found that injury was caused to the consumer, we must consider whether there was a causal connection between the publication and the injury. I addressed the nature of causation in general in the Appeal, and I will not repeat what I wrote in that regard (p. 605). I will, therefore, consider the disputed issue of whether the consumer meets the requirement of causation when he was not actually misled by the misrepresentation. In my view, the required causal connection exists for the purpose of the cause of action granting a consumer damages for the injury incurred by him.

13.       Inasmuch as the Law establishes that an act or omission (including a misleading publication) is to be treated as a tort under the Civil Wrongs Ordinance, and does not create a parallel to specific torts in the Civil Wrongs Ordinance, we cannot say that the prohibition of deceit under sec. 2 (a) of the Law is like the tort of fraud or the tort of negligent misrepresentation, which require reliance as a precondition (on the tort of negligent misrepresentation, see: CA 106/54 Weinstein v. Kadima Cooperative Association Ltd., IsrSC 8 1317; and on the tort of fraud, see: CA 614/84 Sapir v. Eshed, IsrSC 41 (2) 225, 239). My position is that the tort perpetrated by a publication that is liable to mislead does not require reliance in order to entitle a consumer to damages for injuries incurred by him due to that publication, and we are not bound by the reliance requirement of those torts. Had the legislature intended to draw a parallel between the prohibition of deceit and one of the torts requiring reliance, we would have expected that it would have done so expressly. Moreover, there is no logic behind creating a separate tort in a special law with a special purpose that corresponds to a tort that already exists in the Civil Wrongs Ordinance, for if that were the case, what would be achieved by enacting the separate tort? We should not assume that the legislature wasted its words, and moreover, the Consumer Protection Law was enacted in order to create special causes of action for the special area of consumer protection. In addition, it should be noted that there is no small number of torts that do not require reliance, both in the Civil Wrongs Ordinance and outside it. It would appear to me that the reliance requirement is not required for establishing causation by the wording of the Law and its purpose.

14.       As a rule, the reliance requirement comprises the assumption that were it not for the representation upon which you relied, and were it not for your reliance thereupon, you would not have negatively altered your situation, and would not have acquired the service or product misleadingly represented. In other words, you would have chosen to refrain from acquiring the product or service. In the case of the service in this matter – direct-dialed international calls – there was no such choice at the relevant time. It was a monopoly of Bezeq, which was a government corporation. The service itself is one that is incomparable. Modern life is inconceivable without it. And at the relevant time, it could not be obtained from any other provider. In such circumstances, one can say that the reliance requirement is of no consequence or significance. Moreover, in the modern age, in which the consumer receives services from large public corporations – sometimes exclusive in the field – the consumer public cannot be expected to keep abreast of the “flood” of advertisements published by the various corporations in regard to discounts, promotions, etc., as a condition for obtaining damages for injury incurred as a result of misleading advertising. Consumers cannot be expected to scrutinize the accounts and calculations of those corporations, and investigate whether they correspond to their advertisements. It is not even clear that they could do so. In the matter before us, Bezeq conducted ongoing advertising campaigns, and the consumers cannot be asked to keep track of those advertisement as a condition for an award of damages. They should be able to rely upon the assumption that if a company decides to conduct a campaign or grant discounts or make calculations that are more beneficial to the consumers, and publishes that, then it will act in accordance with what it published and will grant the benefit to the consumers regardless of whether or not the consumers saw, read or relied upon the advertisements when making use of the service. Moreover, a large proportion of the consumers pay their telephone bills by means of standing bank orders. The details of the bills are not always examined before payment. I find no economic or other logic to awarding a refund for overcharging only to those few who keep track of advertisements and check bills. I do not believe that it is just or fair to “punish” the consumer who does not do so, and to allow the company to profit from the loss of the consumer that derives from the supplier’s misleading advertisements. Indeed, Bezeq is under no obligation to advertise discounts, campaigns or beneficial charging plans, but if it does so, it must stand behind those advertisements and put them into practice for the entire consumer public. Having failed to do so, it committed a tort that resulted in injury for which it is liable for damages to all the consumers who used the service, whether or not they relied upon the advertisement and whether or not they were aware of it, and it must refund the overcharged fees to the consumers. All of the above leads me to the conclusion that there is no need of reliance in order to meet the causation requirement for the purpose of obtaining damages.

15.       If I were of the opinion that actual deception of the consumer, as well as reliance upon the supplier’s representation were required as a precondition to the remedy of compensation – and I do not so hold – I would favor adopting a presumption that when a supplier makes a representation that is liable to mislead a consumer, a consumer who purchases the product or service would be deemed to have been exposed the representation and to have acted thereupon. My reasons for adopting that presumption partially correspond to those that lead me to conclude that reliance is not required.

            The import of the said presumption is that a consumer who purchases a product or service from a supplier may assume that the price charged for the product or service is the correct price in accordance with the supplier’s advertisements, without regard for whether or not he was exposed to the advertisements. This assumption is all the more justified when we are concerned with a product or service provided by a monopoly. Such a presumption would prevent the artificial distinction between the consumer public that used the product or service misleadingly advertised, while unaware of the misrepresentation, and the consumers who were aware of the misleading information. (in regard to the presumption of reliance, see; LCA 8332/96 Shemesh v. Reichert, IsrSC 55 (5) 276, and what was stated there in regard to securities is equally applicable to the matter before us).

16.       Holding that there is no need for the consumer’s reliance upon the misleading publication does not render the need for causation superfluous. In regard to the need for a causal connection between the publication and the injury, I am in full agreement with my colleague the Chief Justice and my colleague Justice Cheshin, but as opposed to them, I am of the opinion that such a causal connection exists in the case before us, as I explained in the Appeal, and I will quote what I stated there: “In my view, the representation created by the supplier should be deemed as a promise to the consumer public, which binds it and requires it to act in accordance with the representation. That promise grants the consumer a right, and places an obligation upon the party making the representation to the consumer public. When the supplier fails to meet the obligation that it assumed by means of the representation, and charges a price higher than that promised in the representation, it breaches its obligation, and the consumer incurs injury in consequence of that breach. Therefore, even if the consumer was not exposed to the misleading publication and did not alter his manner of use of the product or service – in the matter before us, the number or duration of calls – he still incurs injury, inasmuch as the price he was charged for the product or service was higher than the price at which was entitled to purchase the product or service” (the Appeal, at p. 605, between marginal letters D and E). Take, for example, a situation in which a consumer purchases a product in a supermarket, regarding which there is an advertisement at the entrance of the store stating that the price has been lowered. The consumer does not see the advertisement (or due to a language problem, does not understand it). He purchases the product, paying the full price at the checkout. Clearly, the advertisement that the price was lower than that actually charged is liable to mislead a consumer. Similarly, I believe that the consumer incurs an injury in the form of a “price differential”, which constitutes a real, tangible loss. By an appropriate interpretation of the necessary causation, that injury is causally connected to the prohibition upon deceit, inasmuch as due to the misleading advertisement and the difference between it and the actual conduct, the consumer suffered injury. That is sufficient to meet the causation requirement both factually and legally. Factually, the said injury caused to the consumer is a result of the fact that the supplier published a representation that it did not put into practice. Legally, the injury is causally connected to the representation by the foreseeability test, inasmuch as when a supplier makes a false representation, it foresees that charging contrary to the representation will cause a loss in the form of a “price differential”. It also meets the risk test, as the injury falls within the scope of risk of the supplier’s conduct, and the common-sense test, which looks at the total conduct of the tortfeasor and its contribution to the injurious result (on the legal tests for causation, see: CA 145/80 Vaakin v. Beit Shemesh Local Council, IsrSC 37 (1) 113, 145-146; CA 576/81 Ben Shimon v. Barda, IsrSC 38 (3) 1, 7; CA 119/86 Keny Housing v. Netanya Local  Planning and Building Board, IsrSC 46 (5) 727, 749).

            The issues before us in this case, and the proposed solutions, are not exclusively ours. In interpreting Israeli law in regard to the subject of consumer deception in general and class actions in particular, we should also look to American law, which inspired the adoption of class actions in our legal system.

 

Comparative Law

 

17.       The consumer protection laws of various states of the United States establish the prohibition of deceit in language such as “an act liable to mislead a consumer”, similar to the wording adopted in sec. 2 (a) of the Consumer Protection Law. Thus, secs. 349 and 350 of New York’s General Business Law establishes that deceptive acts or practices by a business are unlawful, as are misleading advertisements. Although the sections speak of deception and its prohibition, the New York courts have held that they should be understood as prohibiting any act that is liable to mislead a consumer (Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 623 N.Y.S.2d 529 (Ct.App.1995); BNI New York Ltd. v. DeSanto, 675 N.Y.S.2d 752 (City Ct.1998), at p. 755; Small v. Lorillard Tobacco Co. Inc., 679 N.Y.S.2d 593 (A.D. 1 Dept.1998, at p. 599).

            Section 2 of the Consumer Fraud and Deceptive Business Practices Act of the State of Illinois expressly establishes that deception is unlawful, whether or not any person has actually been deceived or damaged thereby. Identical wording appears in the law of the State of Minnesota (sec. 325F.69 of the Consumer Fraud Act).

18.       The various wordings there are similar to the wording of our Consumer Protection Law. It is worth noting that the construction given to similar sections in various states is not uniform insofar as the requirement of reliance upon the misrepresentation for the purpose of receiving a compensatory remedy. Three basic trends can be identified: The first requires proof of reliance upon the deceptive representation. The second does not require reliance upon the representation, and it is sufficient to prove a causal connection between the deception and the injury incurred. The third does not completely abandon the requirement of reliance, but it is a reduced requirement that is met by assumptions, presumptions and conclusions drawn from the circumstances (for a survey of the American legal situation in this regard, see the comprehensive article of G. Wilson & J. Gilmer, “Minnesota’s Tobacco Case: Recovering Damages without Individual Proof of Reliance under Minnesota’s Consumer Protection Statutes,” 25 Wm. Mitchell L. Rev. (1999) 567). Below, I will note a number of cases from among the many available that demonstrate each of the said approaches. For the first approach, see Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 776 N.E.2d 151, 201 Ill. 2d 134, 267 Ill. Dec. 14 (2002); and see: Zekman v. Direct American Marketers, Inc., 695 N.E.2d 853, 182 Ill. 2d 359, 231 Ill. Dec. 80 (1998). For the second approach, see: Brooks v. Midas-International Corp, 47 Ill. App. 3d 266, 361 N.E. 2d 515 (1977) in which the defendant guaranteed in its advertisements that it would replace a muffler for only an installation charge but charged the full replacement price. The suit was certified as a class action for the purpose of seeking damages, holding that reliance is not a requirement for the purpose of obtaining damages for consumer deception. This approach is consistent with mine. The same is true in regard to the judgment in Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 675 N.E.2d 584, 174 Ill. 2d 482, 221 Ill. Dec. 389 (1996), in which a class action was certified against a company, inter alia, for publishing the safety features of an automobile based upon allegedly incorrect information that the company gave to a magazine. The Supreme Court of Illinois held that the plaintiffs did not have to prove reliance as a condition to establishing a cause of action. It further held that in the absence of proof of an intervening cause, it was sufficient that the plaintiffs show that the automobiles were purchased after the misleading information was published in order for there to be causation between the misleading publication and the injury incurred. For the third approach, see Vasquez v. Superior Court of San Joaquin County, 484 P.2d 964(S.Ct.Cal.1971), in which the Supreme Court of California held that there was no need to prove reliance upon the misrepresentations of the sellers by direct evidence, and that it could be proved implicitly by inference from the circumstances of the case, or even by a presumption of reliance. Similarly, in Amato v. General Motors Corp., 463 N.E. 2d 625 (Ct. App. Ohio, 1982), the majority of the Ohio court certified a class action against General Motors for equipping Oldsmobiles with less prestigious engines without informing the buyers.  The court did not entirely waive the reliance requirement, but held that it could be inferred from the circumstances of the case, or by establishing a presumption of reliance.

            As we see, people are the same everywhere, and not only are the issues and problems similar, but so are the disagreements among jurists in various states with similar, if not identical, legal foundations.

            Weighing all of the considerations, balancing them, and giving due weight to each of them, tilts the scales in favor of the trend that deems misleading advertising to be an act that establishes a cause of action for damages, if injury was caused, without requiring reliance for the purpose of establishing causation between the act and the injury.

19.       In conclusion, in my view, the Petitioner has a cause of action for damages for the injury caused him by the misleading advertisement, due to the overcharging. Therefore, if my opinion were adopted, the petition would be granted and the Petitioner’s suit would be certified as a class action.

 

                                                                                                                        Justice

 

Justice E. Mazza:

 

            I have reread the opinions of the majority in the Appeal – my colleagues the Chief Justice and Justice Englard – and the dissent of my colleague Justice Strasberg-Cohen. I have also read the opinions of my colleagues Justice Cheshin and Justice Strasberg-Cohen in this Further Hearing. I cannot concur in the opinions of the majority in the Appeal and that of Justice Cheshin in this proceeding. In my view, that approach does not give proper expression to the special purpose of the consumer class action. Instead, it transfers the traditional doctrines of tort law – foremost among them the doctrine of tortious causation – to the consumer environment, in which they are inappropriate, and sanctifies them as is. As a result of this view, the approach focuses too much upon Barazani the man, and too little upon the group of consumers that he seeks to represent, and the injury that it suffered. In this regard it is important to emphasize that it was never positively proven in the proceedings before the District Court that Barazani was not exposed to the misleading advertisement. The factual assumption in this regard, upon which the majority largely relied in the Appeal, as did Justice Cheshin in the Further Hearing, is based exclusively upon the fact that Barazani did not claim that he was exposed to the advertisement. Here, too, I believe that the view of my colleagues is deficient in its almost mechanical adoption of traditional rules of proof. That approach, which I do not believe represents the desired law, is also not required by the existing law. In presenting my dissenting opinion, I will first consider the uniqueness of the consumer cause of action and the appropriate scope of consumer class actions for misleading advertising. I will conclude by addressing the matter of Barazani and the question of whether he has a personal cause of action and for which remedies.

 

The Purposes of Tort Law as opposed to the Purposes of the Consumer Class Action

 

2.         The purposes of traditional tort law are not congruent with the purposes of consumer protection law and do not exhaust them. It is commonly said that the primary purposes of tort law are achieving corrective justice, effective deterrence of potential nuisances, and distributive justice (see, for example: D. More "Human Rights from a Tort Law Perspective" 12 Tel-Aviv U. Stud. L. 81, 90-93 (1994); A. Porat, “Collective Responsibility in the Law of Torts," Mishpatim 23 (1994) 311, 330-333, 344-349, 369-371). We can agree that corrective justice and effective deterrence are common to both tort law and consumer protection law. However, other important purposes are served by consumer protection law with which traditional tort law is not generally concerned. In her book, Dr. Orna Deutch lists no less than seven purposes that are special to consumer protection law: levelling the playing field; reinforcing personal autonomy; the concept of consumer sovereignty; protecting the rights to prosperity and social welfare; ensuring the credibility of the local market; and maintaining trust in the social order (O. Deutch, The Legal Status of Consumers (2002) 27-37 (Hebrew). She emphasizes that “the purpose of consumer protection is not limited to the law’s support of the individual consumer. Improper conduct toward consumers harms not only the consumer, but also honest business people and the entire commercial sector, as well as public trust in the local economy and the public authorities that oversee the commercial sector” (ibid., p. 15). Prof. Sinai Deutch suggests a somewhat different division and definition of the purposes of consumer protection law (S. Deutch, Consumer Protection Law, vol. 1 (2001) 119-126, and see the purposes listed in paragraphs 2-3 of the opinion of Justice Strasberg-Cohen in this Further Hearing). However, each of the approaches undeniably leads to the conclusion that consumer protection law is intended to realize special objectives that go significantly beyond the basic objectives of traditional tort law.

3.         To these general objectives of consumer protection law one may add the special objectives of consumer class actions. We can find an expression of this in a case recently decided by this Court:

 

As a legal institution, the class action is of special importance in realizing objectives that individual actions cannot attain. It serves the interest of the individual by providing a remedy for injury in circumstances in which filing suit would not be worthwhile without the other members of the group. It serves the public interest that strives to deter large economic institutions from violating the law, and that seeks to achieve more effective enforcement of behavioral norms intended to protect citizens and prevent the exploitation of their weakness as individuals. It may also advance the objectives of procedural efficiency, uniformity of decisions, and reducing litigation (CA 1338/97 Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel Ltd. v. Rabi Tawfiq (not yet published), para. 2 of the opinion of Procaccia, J.).

And also see LCA 3126/00 State of Israel v. A.S.T Project Management and Manpower Ltd., IsrSC 57 (3) 220, paras. 7-8 of the opinion of Justice Strasberg-Cohen, and the citations there.

4.         The material difference between the purposes of tort law and consumer protection law yield the conclusion that the traditional legal doctrines of tort law must be examined carefully – and changed and adapted as necessary – before applying them to consumer law in general, and class actions in particular. Generally speaking, one might go so far as to say that no traditional doctrine is self-evident in the context of consumer law. We are concerned with a unique area that requires distinct treatment that accords with its special purposes.

 

The Meaning of Section 31 (a) of the Consumer Protection Law

 

5.         Against this background, we can proceed to the interpretation of sec. 31 (a) of the Consumer Protection Law. This provision states: “Any act or omission in violation of Chapters Two, Three, or Four shall be treated as a tort under the Civil Wrongs Ordinance [New Version]”.  My colleagues are divided as to the meaning of the prepositional prefix “as” – referred to by Justice Cheshin as the “kaf of comparison” [8]  – in the phrase “as a tort”. In my opinion, this question is of little importance. Even were we to assume that the prefix was of no significance, and that sec. 31 (a) should be read as if it stated that an act or omission as stated were torts, it would not mean that certain parts of the Consumer Protection Law should be treated as if they were actually comprised by the Civil Wrongs Ordinance. And clearly, changing the physical location of consumer provisions does not alter their special objectives. So, let us take go even further: even were the Consumer Protection Law, in its entirety, comprised by the Civil Wrongs Ordinance, and even if it were subject to sec. 3 of the Civil Wrongs Ordinance, according to which “the matters enumerated hereinafter in this Ordinance shall constitute civil wrongs,” even then we would have to interpret and apply these special torts in accordance with their consumer purposes, which, in general, are not identical to the purposes of the other torts established under the Ordinance.

6.         Consider, for example, sec. 4 of the Civil Wrongs Ordinance, which states:

 

                        Trivial Act

4.      An act shall not be considered a civil wrong where had it been a repeated act it would not lead to establishing an adverse claim, and where a person of ordinary sense and temper would not complain with regards to it.

 

Obviously—and so it has also been held – sec. 4 expresses the traditional doctrine of de minimis in the context of tort law. See: CA 3901/96 Ra’anana Local Planning and Building Board v. Horowitz, IsrSC 56 (4) 913, pp. 928-929, and the citations there. Adopting the approach that would apply the doctrines of the Civil Wrongs Ordinance – as is and in in their entirety – to the consumer causes of action defined in sec. 31 (a) of the Consumer Protection Law would require that we apply sec. 4 of the Civil Wrongs Ordinance to those causes of action. One will readily realize that such an approach would entirely nullify the primary purpose of the consumer class action, which is of particular importance specifically in regard to cases in which each individual claim is, itself, de minimis, and “a person of ordinary sense and temper would not complain with regards to it”. We would note that the facts of the case before us in this Further Hearing constitute a good example of such a situation. Applying the traditional de minimis doctrine to class actions would, therefore, lead to the result that most legitimate potential plaintiffs would have no personal cause of action, inasmuch as under the plain language of sec 4, the act (or omission) of the dealer who harmed them “shall not be considered a civil wrong”. The conclusion to be drawn from this is that not only is it necessary to adapt the de minimis doctrine of sec. 4 of the Civil Wrongs Ordinance to collective consumer protection before applying it (and compare: the Tnuva case, ibid., at para. 11 of the opinion of Naor, J.), but that the same is true for all the other doctrines of the Ordinance as a precondition to applying them to the consumer causes of action and to consumer class actions.

7.         My colleague Justice Cheshin concludes from the absence of any provision to the contrary in sec. 31 (a) of the Consumer Protection Law, that there is no alternative to applying the doctrines of the Civil Wrongs Ordinance to a consumer tort under sec. 2 (a) of the Law. As he states:

 

Indeed, nothing in the language of sec. 31 (a) of the Law would show that the tort under sec. 2 (a) removes it from the fundamental principles or doctrines of the Civil Wrongs Ordinance … On the contrary, the Law refers us clearly and unreservedly to the Civil Wrongs Ordinance. Section 2 (a) situates itself as one of the native torts of the Civil Wrongs Ordinance, and it would therefore appear that the fundamental principles and doctrines of the Civil Wrongs Ordinance apply, in their entirety, with the same effect and force with which they apply to the native torts.

 

With all due respect, I am of the opinion that even in the absence of an express provision to that effect in sec. 31 (a) – and I question whether such an express provision is needed at all – the application of traditional tort law to consumer causes of action can and should be restricted. The need for such restriction is clearly required by the substantial material difference between the purposes of consumer torts and of the regular torts. Indeed, one can understand the problem and discomfort involved in new and different interpretation of first principles. My colleague Justice Cheshin explained it well in the case before us:

 

Moreover, not only is the language of the Law crystal clear, but efficiency also points to the solution presented by the Law. Inasmuch as the acts and omissions external to the Ordinance are tortious in nature, it is but natural that we should employ the same traditional, familiar doctrines that tort law created and developed over so many years such that they have become foundational to the legal system.

 

However, despite the difficulty, it is unavoidable. Prof. Sinai Deutch (the attorney for the Israel Consumer Council in this Further Hearing) addressed this in an article that referred to the case under appeal:

 

The Consumer Protection Law is an innovative law, inasmuch as Israel’s highest court is first addressing its interpretation only at the present time. It may also be reasonably assumed that, in the early stages of its interpretation, there will be some fear of disconnection from firmly-rooted, ancient legal traditions. However, it is the understanding of the importance of the subject that must lead to reconsideration in this regard…there is no reason to apply the rules of civil law in their entirety to the Consumer Protection Law. Independent interpretation of the Consumer Protection Law’s legal terminology is needed in accordance with its purpose and objective (S. Deutch, “Consumer Class Actions: The Demand for Personal Reliance on Misrepresentations of the Deceiver,” (2 Moznei Mishpat 97, 126 (2001-2002) (Hebrew) (hereinafter: “Consumer Class Actions”).

 

Even Justice Cheshin would appear to agree that the traditional tort doctrines are not “revealed truth”. He expressly notes that, “Since we are concerned here with transplanting a new organ into the body of the Civil Wrongs Ordinance, we must closely examine whether a particular doctrine of the Ordinance is compatible with the foundations, essence and structure of the new tort”. But after stating that – and referring to the sources he cited – he did not set out to “closely examine” whether the traditional doctrines were indeed compatible to the cause of action of consumer deception, but rather assumed their compatibility as if it were self-evident.

 

The Compatibility of the Tort-Law Causation Doctrine to a Class Action for Deceptive Advertising

8.         As we have seen, the traditional doctrines of tort law must be adapted to the special purposes of the consumer class action. In regard to the case before us, it will suffice to focus upon the adapting of the doctrines of tortious causation to the special needs of a class action filed in regard to the mass publication of a misleading advertisement.

            I refer to the “doctrines of causation” in the plural, inasmuch as even in traditional tort law, the subject of the existence of a causal connection between the tortious conduct and the harmful result is subject to a number of doctrines, which occasionally compete and occasionally operate in unison (see, in general: I. Englard, “Causal Connection” in The Law of Civil Wrongs – General Principles of Tort Law, G. Tedeschi, ed. (2nd ed., Jerusalem, 1977) 178; I. Gilead, “Causation in Israeli Tort Law – A Reexamination,” 14 Mishpatim 15 (5744) (Hebrew)). The need for creating different doctrines of causation derived from the need to contend with different aspects of a complicated and complex phenomenon that earned the nickname “indeterminate causation” (see: A. Porat & A. Stein, Tort Liability under Uncertainty (2001); A. Porat & A. Stein, “The Evidential Damage Doctrine: A Positive Analysis of the Law,” 21 Iyunei Mishpat 191 (Hebrew); A. Stein, “How to Resolve the Indeterminate Causation Problem that Arises in Medical Malpractice Litigation,” 23 Iyunei Mishpat 755 (Hebrew)).

            Traditional tort law proposes practical solutions for situations of “indeterminate causation” in which it would be too much to ask the plaintiff to prove positively the existence of a direct, factual causal connection between the tort of the defendant and the injury incurred, under the “but-for” test (i.e., the “sine qua non test”). Under such circumstances, when the plaintiff proves the defendant’s tortious behavior, that his injury, and the possible existence of a factual causal connection between the tort and the injury, then tort law may come to his aid and fill in what is missing for proving the existence of a factual causal connection. This legal “aid” may be expressed in various recognized ways: by transferring the burden of proof to the defendant, who will be required to prove the absence of a causal connection; by establishing presumptions against the defendant in regard to various aspects of the causal dispute; by imposing liability upon “joint tortfeasors”, where their relative part in causing the injury is unknown; in defining an injury as an “indivisible injury” that the tortfeasor must bear in its entirety, even if he caused only part; and by recognizing alternative tests to the but-for test for factual causation (such as the “common man” test or the “substantial factor” test. See: Englard, ibid., at pp. 193-195; Gilead, ibid., at pp. 17-19; Porat, ibid., at p. 376). It should also be noted that new doctrines have been added to the traditional doctrines of causation over the last few years, which primarily serve to circumvent the problems and injustices that are sometimes involved in the strict application of the traditional but-for test. Among these new doctrines, some of which have already been adopted (in various contexts) by the case law, one can find the doctrines for probabilistic damages for the loss of a chance of recovery, or for loss of chance and creation of risk, and for MSL (Market Share Liability) suits; as well as the doctrine of mass liability and the doctrine of evidential damage (see the survey in Porat & Stein, in the second, fifth and seventh chapters of their above book).

9.         We can conclude from the above that even in traditional tort law – and all the more so in modern tort law – the but-for test is no longer the answer to everything. In many cases – where the purposes of tort law justify it – the right of a plaintiff to damages is recognized even when he is unable to show that no injury would have been caused but for the tort of the defendant. Against this background we may more sharply ask why the majority in the Appeal, and why Justice Cheshin in this Further Hearing, found it necessary to be so demanding in regard to the proof of reliance of Bezeq’s customers upon the misleading advertisements, as part of their insistence upon the demand for a causal connection in accordance with the but-for test. As the Chief Justice stated in the Appeal (IsrSC 55 (4) 584, 622-623), in referring to the approach of Justice Strasberg-Cohen:

 

As we know, the meaning of the factual causal connection is that but for the tort, the injury to the victim would not have occurred. This is the sine qua non test. In the matter before us, the factual causal connection requires that but for the prohibited deceit, the consumer would not have talked on the telephone in the manner that he actually did. Such a causal connection occurs only if the consumer relies upon the misleading character of the advertisement. If the consumer does not rely upon the misleading advertisement, then the extent of his phone calls is not influenced by the content of the advertisement. My colleague emphasizes the creation of the representation, but she does not prove the existence of the factual causal connection between creating the representation and the occurrence of the injury. In the absence of a factual causal connection, there is no possibility of examining the existence of a legal causal connection, which is based upon the factual background of the factual causal connection.

 

Justice Cheshin also notes – although in less emphatic language – that:

 

…there was no causal connection between Bezeq’s advertisement and the “harm” caused to Barazani, if only by reason of the fact that Barazani never read that advertisement, and therefore, in any event, he is not entitled to sue on that basis. Indeed, Bezeq committed a tort by publishing the advertisement – that is the basic assumption in this case – but the mere existence of a tort is insufficient to entitle a person to redress. That person must show that due to that tort, he incurred harm, and that precondition was not met in regard to Barazani.

 

What derives from this approach is that in order to ground a (personal or class) action for pecuniary damages for misleading advertising, the plaintiff must show that he relied upon the misleading advertisement, which led to a direct change in consumer conduct. With all due respect, I am of the opinion – which I will explain below – that this demand is not necessarily required by the language of the Law. The question, then, is what is the purpose of this demand, and what rationale does it serve? To this, I have found no convincing answer in the opinions of my honorable colleagues. It would appear that their only explanation is that class actions are a powerful tool, comprising many dangers, and should, therefore, be used with caution (see, in this regard, the opinion of my colleague the Chief Justice in the Appeal, at p. 620). That is, of course, undeniable. But defining Barazani as not being a “proper plaintiff” for a class action is based solely upon the finding that he does not meet the reliance requirement. Even if that finding were well founded – and I have questioned that from the outset – I cannot agree that Barazani’s non-reliance upon Bezeq’s misleading advertisement disqualifies him as a representative plaintiff in a class action.

10.       A requirement by which a consumer can acquire a cause of action only if he can prove that he relied upon the misleading advertisement and changed his consumer conduct as a direct result would frustrate ab initio the possibility of many potential suits based upon a cause of action of consumer deception by mass advertising. The reason for this is that in many such cases the requirement cannot be met. Few consumers can recall the details of the commercial advertisements to which they are exposed, directly or indirectly, and few consumers can honestly testify that were it not for the exposure to a particular advertisement, they would not have acquired the advertised product or service, or would have used it to a lesser extent. After all, it is well known that modern mass advertising is often intended to influence consumers in strange and mysterious ways, and not necessarily by speaking directly to their consumer consciousness. Often, consumers are not even aware of being influenced by an advertisement, neither when they are exposed to it, nor after the advertisement is supposedly forgotten. And we need hardly mention that these assumptions are particularly true in regard to advertisements in regard to matters of little consequence, which are the ones that hold the primary potential for consumer class actions. Thus, the procedural solutions that Justice Cheshin mentions in paras. 54-55 of his opinion – such as that each consumer prove his right to a remedy by means of an affidavit – cannot be deemed practical.

            Moreover, in many cases of consumer deception through advertising, it can be established positively that, as a result of the advertisement, there was no direct change in modes of consumer conduct of the sort that my colleagues require for “reliance”. The case before us provides a good example of this. The deception in Bezeq’s advertisements concerned a fraction of a meter unit – of several seconds – at the end of every international phone call. Would anyone imagine that a Bezeq customer, assuming he were aware of the deception, would put down the phone precisely at the end of a meter unit in order to avoid being charged for fractions of a unit as for whole unit? The obvious conclusion is that Bezeq’s deceptive advertising did not lead to customer reliance upon the content of the advertisement, and certainly did not lead to a direct change in the modes of consumer conduct. The change that the advertising may have caused in consumer consciousness – and conceivably the one that Bezeq sought to achieve by the said advertisement – was a change of a general nature in the perception of Bezeq as a reliable, fair company that charges only for the services it provides. Such a change in the advertiser’s reputation could cause – and we may assume that it indeed causes – a change in consumer consumption habits, which may be expressed in generally greater frequency of use of the advertised product or service, as well as other products or services of the advertiser. But this is an indirect – and generally unconscious – change in consumer consumption habits. It is doubtful that any of the consumers whose consumption habits were indirectly influenced by the advertisement could prove that he relied upon the advertisement, and the extent of the advertisement’s influence upon his consumption habits. But the advertiser benefits from its deceptive advertising, which indirectly led to an increase in its market share. The additional profits that the advertiser realizes from the increase in its market share – which also involve unjust enrichment at the expense of both its customers and its competitors – are, truth be told, the true injuries inflicted upon the consumer interest as a result of the misleading advertisement. It is only because those injuries are impossible – or, at least, are very difficult – to measure and quantify that the examination typically focuses only upon the direct damages that my colleague Justice Strasberg-Cohen refers to as “price differentials”. As a result, insisting upon reliance in regard to misleading mass advertising would severely impact upon the very possibility of initiating class actions for misleading advertising.

11.       In his opinion in the Appeal, the Chief Justice noted the possibility of creating a “presumption of reliance” in favor of consumers, but left the matter open for future consideration (ibid., at p. 621). In his opinion in this Further Hearing, Justice Cheshin adopted a similar position. He also notes that “we should broadly interpret the concept of reliance such that it comprises more than just direct reliance”. These solutions present something of a desirable development, but I fear that their practical advantage is limited. Proving a consumer’s reliance is no simple task, and it is sometimes impossible. That is not the case in regard to an advertiser’s ability to contradict the presumption of reliance. It is sufficient that it ask each of the consumers if and how he would have changed the manner of his use of the advertised product or service were it not for the misleading element in the advertisement. At the very least, those consumers who used the product or service prior to the misleading advertisement will find it very difficult to answer that question. We can almost assume that most, if not all, will have to answer in the negative, or that they do not recall the advertisement or its details, or that they do not know the answer, and the dealer will be deemed to have met the burden of proof and refuted the presumption of reliance. On the other hand, it is clear that my colleagues do not suggest creating an absolute presumption of reliance in favor of consumers. Such a presumption would greatly improve the chances of success of a consumer class action, like that before us, but would entirely nullify the requirement – to which my colleagues cling – of a factual causal connection between the misleading advertisement and the injury incurred by the consumers.

12.       It should be obvious that the requirement that a misleading advertisement lead to a direct change in modes of consumer behavior – which is what the “reliance requirement” demands –not only does not advance the special purposes of the consumer class action. Let us return to the seven objectives as set out by Dr. Orna Deutch: levelling the playing field; reinforcing personal autonomy; the concept of consumer sovereignty; protecting the rights to prosperity and social welfare; ensuring the credibility of the local market; and maintaining trust in the social order. Clearly, the demand for reliance advances none of these objectives. Rather, it leads to negating many consumer causes of action that might advance those objectives. In practice, the demand for reliance undermines those objectives and frustrates their realization. The same is true in regard to the special purposes of consumer class actions. As Justice Procaccia pointed out in the aforementioned Tnuva case, the class action “serves the interest of the individual by providing a remedy for injury in circumstances in which filing suit would not be worthwhile without the other members of the group. It serves the public interest that strives to deter large economic institutions from violating the law, and that seeks to achieve more effective enforcement of behavioral norms intended to protect citizens and prevent the exploitation of their weakness as individuals”. In those case in which the personal injury of each of the individuals is very small, one might say that there is no real importance to the personal interest involved in the class action. The primary importance of such cases is focused upon the public interest. But the public interest in enforcing law and integrity in the consumer field has little in common with the reliance requirement, and certainly not with requirement of a direct, factual, causal connection between the misleading advertisement and the harm to the consumers. The public interest focuses primarily on the violation itself and the possible harm to the public as a whole, and not upon the question of whether there was an actual causal relationship between the violation and the harm caused to some consumer. We thus find that strict observance of the demand for a causal connection – like the requirement of proof of reliance – will lead to the frustration of many consumer class actions, and the public interest that they were meant to serve suffers.

 

Constructive Reliance and a Consumer Causal Connection

 

13.       From the perspective of the laws of consumer deception in advertising, the main thing is the very existence of an advertisement with the potential to mislead in regard to a material aspect of a transaction, which the advertiser intended to reach as large a public as possible, and influence modes of consumer behavior. Once the potential to deceive is proven, and once it is proven that the advertiser indeed intended that the misleading advertisement reach consumers and influence their consumer behavior, it is only right that we hold that there is a basis for the existence of constructive reliance by the consumers upon the misleading advertisement. The question of whether the dealer actually achieved its goal – i.e., that the misleading advertisement indeed reach its intended audience and actually mislead it – is of limited importance. This expresses a central difference between the law of consumer deception and general tort law (as opposed to certain particular torts, such as the torts of fraud, deceit, etc.). The normal starting point in tort law is that the tortious event was not planned by the tortfeasor, and that the tortfeasor was not interested in its occurrence. The assumption is that potential tortfeasors do not have an interest in causing injury, and that they generally have an interest in preventing injury, unrelated to the risk of being required to pay damages to the victims. From this, inter alia, we derive the principle that tort law is not intended to punish the tortfeasor, but rather to compensate the victim for his loss. For the same reason, tort law does not impose liability for the mere creation of a danger, which, in and of itself, is not deemed an injury (for a broader discussion, see: A. Porat, "Compensation for Risk-Creating and Loss of Chances," 23 Iyunei Mishpat 605 (2000) (Hebrew)). That is not the case in regard to consumer deception. The typical situation that these laws address is one in which the supplier of a product or service who publishes a misleading advertisement is interested in and intends to cause the consumer injury, inasmuch as, from its perspective, it reaps direct profit from that injury. Therefore, the incentive to cause harm in the area of consumer deception is inestimably greater than the incentive to invest in preventing harm, which is the typical fear in the field of torts. Experience shows that the fear that consumer deception may harm the reputation of the advertiser is often distant and ineffective. In any case, when it is shown that the advertiser intended to mislead, the necessary conclusion is that, at least in that case, the said fear was not sufficient to deter. Indeed, the temptation to deceive consumers – as a means for increasing an advertiser’s profits – is not inconsequential. The purpose of the tort regarding misleading advertising does not focus upon the harm caused by the advertisement to a particular consumer, but rather upon the existence of a potential for the causing of harm to the consumer public, and the advertiser’s intention to cause that harm in order to reap profits. Conceivably, that was the reason that, in defining the prohibition of deceit in sec. 2 (a) of the Consumer Protection Law, the legislature chose the phrase “liable to mislead”. Moreover, another interpretive conclusion that derives from the definition of the tort is that the legislature also intended to create a unique definition of the causal connection required for consumer deception. With all due respect, assuming that this wording is relevant only to actions for declaratory and preventative remedies renders the definition of a publication “liable to mislead” as a tort nearly devoid of all practical content, inasmuch as it is hard to imagine that any consumer would be interested in filing a suit for the sole, ultimate purpose of merely obtaining declaratory or preventative relief.

14.       The conclusion required from the distinctions I addressed above is that the laws of consumer deception must contend with the reliance requirement and the issue of causation differently than tort law. Instead of the requirement of personal reliance by each and every consumer – which is the requirement of traditional tort law – we should adopt a doctrine that recognizes “constructive reliance” of all the consumers at whom the advertiser directed its misleading advertisement. And rather than the requirement of proof of a factual causal connection between the misleading advertisement and the injury of each and every one of the plaintiff consumers, we should adopt a doctrine that recognizes a “consumer causal connection” that would be derived from the combination of a potentially misleading advertisement and the intention of the advertiser that the advertisement reach the consumers, mislead them and thereby influence their behavior. The elements of the suggested formula for establishing a consumer cause of action overturn the accepted formula for a cause of action in tort to some degree. Whereas in an action in tort, meeting the reliance requirement is a precondition to the existence of a causal connection, in a consumer action, the existence of constructive reliance is derived as a necessary result of proof of the elements of the consumer causal connection. But this reversal does not detract from the completeness of the formula, in all of its elements. And note: adapting the tort doctrines to the consumer tort does not contradict the legislative imperative. On the contrary, such an adaptation is part of an interpretive process that makes it possible to advance the special objectives of the consumer cause of action in general, and of consumer class actions in particular, and as I shall demonstrate below, does not contradict the language of the law.

 

A Pecuniary Remedy for Consumer Deception

 

15.       When can consumers obtain a pecuniary remedy due to a potentially misleading advertisement? In my opinion, it would be proper to establish that consumer deception gives rise to a (personal and class) cause of action for pecuniary relief upon the fulfillment of three conditions: a violating advertisement, injury, and a “consumer causal connection”. As opposed to this, we should also recognize a defense that would generally be available to the advertiser if it be found that the consumer-plaintiff knew the actual facts, and the violating advertisement could not, therefore, negatively influence his behavior.

            The first element (the element of breach) is fulfilled upon proof of a breach of one of the prohibitions upon deceit established under the Consumer Protection Law for which one may sue for damages under sec. 31 (a) of the Law. For our purposes, the relevant prohibition is that established under sec. 2 (a) of the Law, according to which even an advertisement that is “liable to mislead” in regard to a material element of a transaction is deemed a violating advertisement. And note: once it is proved that the advertisement is liable to mislead, there is no further need to address the question of actual deceit.

16.       The second element is that of injury. While achieving the consumer objectives could suffice with the potential for causing harm to the consumer interest that is presented by an advertisement liable to mislead, in the absence of proof of injury, damages cannot be awarded to consumers claiming to have been injured by the violating advertisement. That is the import of the reference of sec. 31 (a) – titled “Compensation” – to the Civil Wrongs Ordinance. That is also the import of sec. 31 (a1), which states: “Consumers injured by the wrong are entitled to remedies for the wrong and so are dealers, who in the course of their business are injured by deceit, as said in section 2” (for a different view, see M. Deutch, Commercial Torts and Trade Secrets (2002), p. 49). This is simply the legislature’s decision to limit the scope of potential plaintiffs to that group of consumers and dealers who were actually injured and that, therefore, have a direct interest in suing and obtaining a pecuniary remedy. However, the injury that the plaintiffs must prove is not necessarily the injury that each victim can prove by direct evidence. Provable injury caused to a group of consumers can also entitle the group to global damages from the advertisers without a need for the court to determine the personal injury of each member of the group (see, in this regard, reg. 9 (c) of the Consumer Protection (Procedures in regard to a Class Action) Regulations, 5755-1995, and paras. 13-20 of the opinion of Naor, J. in the Tnuva case, above). We should also recognize the possibility that bringing evidence of the profit that accrued to the advertiser from the misleading advertisement be deemed sufficient proof of the injury to the injured consumers. My assumption is that, on the basis of such evidence, the court can award pecuniary damages, which are not necessarily restitution, to the injured consumers. As we have stated, the injury to the consumers from a misleading advertisement constitutes profits for the advertiser, and evidence proving the extent of that profit would therefore prove the extent of the injury. I would parenthetically note that, in my opinion, defining consumer deception as a tort does not detract from the victims’ right to sue for restitution, whether by force of contract (where the product or service was provided to the consumer in the context of a contractual undertaking), or upon a cause of unjust enrichment.

17.       The third element addresses the existence of a consumer causal connection. As explained above, I am referring to a causal connection adapted to the special objectives of consumer protection law – both personal and collective – and in the case before us, the special needs of the laws of consumer deception. Some form of causal connection between the breach and the injury is, indeed, required. That, as my colleagues have shown, is required by the Civil Wrongs Ordinance referred to by sec. 31 (a) of the Consumer Protection Law, and it is also required by sec. 31 (a1) of the Law, under which (as earlier noted) the right to relief is granted to one “injured by the wrong”. However, an examination of secs. 2 (a) and 35A (b) of the Consumer Protection Law reveals that the existence of a causal connection – required, as noted, by secs. 31 (a) and 31 (a1) of the Law – cannot be construed as identical to the requirement of the traditional causal connection of the Civil Wrongs Ordinance. Section 2 (a) expressly suffices with a publication that is “liable to mislead”, and does not require that there be actual deception, while sec. 35A (b) of the Law – treating of “class actions” – states that “where the cause of action is an injury, it is sufficient that the plaintiff show that injury was caused to a consumer”. In addressing the meaning of sec. 35A (b), Dr. Orna Deutch writes:

 

The legislature provided a certain leniency in regard to consumer actions in that when injury is an element of the cause of action (such as in the tort of negligence), there is no need that the plaintiff show that he himself incurred an alleged injury, but rather it is sufficient that an injury was caused to some consumer (O. Deutch, in her abovementioned book, at p. 244).

 

I am of the opinion that we may learn from sec. 35A (b) that, for the purpose of filing a class action, it is sufficient to show the existence of a consumer injury, and there is no need to show a factual causal connection between the breach and that injury. This construction accords with the special purposes of the consumer class action, which I addressed above, which are also not consistent with the requirement of personal reliance.

18.       It would appear that in regard to the question of the existence of a causal connection between consumer deception and the injury caused to the victim, secs. 2 (a) and 35A (b) of the Law contradict secs. 31 (a) and 31 (a1) of the Law. Whereas the latter (which are of a “general” nature) appear to reflect a requirement of a causal connection, it would appear that one may understand from the former (which are of a “specific” nature) that no causal connection be proved. However, I do not believe that the contradiction between the general provisions and the specific provisions in this matter can be resolved by preferring the specific provisions (by virtue of their being lex specialis). In the matter before us, we should prefer the interpretive principle that requires that we find a way to harmonize the provisions so that they may coexist. The formula that I suggested above for a “consumer causal connection” accords well with the appropriate interpretive approach. The requirement of a consumer causal connection – based upon a merger of the requirements for injury together with potential causation and intention to injure – prevents the possibility that liability might be imposed for the mere creation of a danger by a tortfeasor acting in good faith, and thereby gives proper expression to the purposes of the general provisions. At the same time, this formula grants preference to the consumer objectives of the specific provisions. That is expressed in the replacement of the requirement for an actual factual causal connection between the misleading advertisement and the injury under the but-for test with a requirement that suffices with proof of a potential factual causal connection (similar to the concept of apportioning tort damages based upon probability), together with proof that the advertiser intended to create an actual factual causal connection. In other words, meeting the demand for a consumer causal connection would not require proof that the advertisement actually misled the victim and caused his injury, and not even that he was aware of the advertisement and relied upon it in some way, but rather it would suffice to show that the advertisement was liable to mislead the victim and cause his injury, and that the advertiser intended that.

            It would appear to me that, in the context of the prohibition of consumer deception, the requirement of a consumer causal connection also reflects the lex ferenda. Adoption of the said formula would advance the special objectives of consumer protection law and of consumer class actions, and would ensure protection of good-faith advertisers who do not intend to mislead and cause harm when the factual causal connection between their advertisements and the injury is in doubt (needless to say, when the factual causal connection is not in doubt, nothing would prevent the filing of a class action even for injury resulting from an advertisement that was not intended to mislead, but that nevertheless, actually misled). I would like to emphasize that even in the absence of secs. 2 (a) and 35A (b), which support my suggested interpretation, the tort requirement of a factual causal connection can and should be made more flexible and should be adapted to the special needs of consumer deception. I have already pointed out that such flexibility has been adopted in a variety of ways in tort law itself, for the purpose of realizing appropriate objectives of tort law. Thus, for example, Israeli law recognized the possibility of awarding tort damages based upon probability in cases in which it was not proved – as would be required by the balance of probabilities – that but for the tortious conduct of the defendant, the plaintiff would not have incurred injury. This was held in regard to the loss of a chance of recovery (see the landmark case, CA 231/84 Histadrut Health Fund v. Fatach, IsrSC 42(3) 312., which has been followed repeatedly in later cases), as well as in regard to not obtaining informed consent for medical treatment (CA 4384/90 Vaturi v. Leniado Hospital, IsrSC 51 (2) 171, 191-192, and compare CA 2781/93 Daaka v. Carmel Hospital, Haifa, IsrSC 53 (4) 526 (English translation:  http://versa.cardozo.yu.edu/opinions/daaka-v-carmel-hospital). Having found that it is possible to arrive at a desired result by means of interpretation even within the confines of the Civil Wrongs Ordinance, that should be the case a fortiori in the framework of the Consumer Protection Law, whose special objectives justify and require that we not subject it to the regular doctrines of tort law.

19.       On the other hand, as stated, a defense should be allowed to an advertiser on the claim that the victim was actually aware of the true facts of the situation and, therefore, the violating advertisement could not have negatively affected him. The reason for this is that the prohibition upon consumer deception is not intended to protect such victims. The prohibition upon consumer deception is intended to protect consumers who are liable to be misled, and not those who cannot be misled. In effect, this can be seen as an aspect of the good-faith duty that applies to every person seeking pecuniary redress for consumer deception. After all, it would not be appropriate to obligate a supplier of a product or service, who published a misleading advertisement, to compensate a person who was not a potential victim of the deception, and an action for compensation in such circumstances might be deemed to constitute abuse of process.

            The said defense must be positively proven by the advertiser. In other words, in order to meet the burden of proof, uncertain answers like “I don’t know” or “I don’t recall” to questions put to the consumer-plaintiffs will not suffice. It may be assumed, therefore, that an advertiser may make effective use of this defense primarily in response to suits by “special” plaintiffs, such as its employees, commercial competitors, or other experts in the relevant field, regarding whom it would be possible to bring evidence in regard to the state of their knowledge at the time they acquired the service or product.

 

The Matter of Barazani

 

20.       At the outset I noted that the approach of the majority in the Appeal and of Justice Cheshin in the Further Hearing focuses overmuch upon Barazani himself, and too little upon the large pubic of victims of the misleading advertisement whose case Barazani sought to press. A perfect expression of this can be found in the very establishing of the Archimedean assumption that Barazani was not exposed to the misleading advertisement and did not rely upon it, and that this is sufficient for the conclusion that Barazani is not an “appropriate plaintiff”. Of course, I do not disagree that a precondition for certifying a class action is that the representative plaintiff have a personal cause of action against the defendant. That is expressly required by sec. 35A (a) of the Consumer Protection Law. But, in my view, we should not exaggerate the importance of that condition. In ascertaining whether it has been met, the court need not split hairs in its examination of the details of the personal suit of the representative plaintiff, but should suffice with facial proof that he has a personal cause of action, and that we are not concerned with a person who is merely hitching a ride on someone else’s dispute. The court should concentrate its examination upon two other questions: Is the subject of the suit appropriate to a class action? And is the representative plaintiff qualified and equipped to properly represent the interest of the public on behalf of which he seeks to sue? These considerations are of special importance in a consumer class action. Dr. Orna Deutch addresses this (in her abovementioned book, at pp. 245-246):

 

The personal interest of the injured plaintiff who files the class action is, in any case, negligible in relation to the amount of the suit for the entire class. In a realistic view of the significance of the suit, it is of no consequence whether the personal suit of the victim constitutes a negligible part of the entire suit, or is actually nonexistent. In both cases, he presumably “defends the honor” of the entire group, and actually advances a different personal interest, which is the benefit that accrues from his representative standing in the suit, which is expressed in the special damages and compensation awarded to the plaintiff for his efforts. Why condition standing in the suit upon a formal demand for the existence of such minimal involvement on his part?

It would seem that it is, indeed, difficult to justify the said requirement. What must be ensured is that the representative of the group be a proper representative who can bear the burden of conducting the suit both in terms of its material and its costs, and that he not have a conflict of interests. However, there is nothing in common to these requirements and the question of whether the plaintiff was personally harmed by the act at issue. His personal injury represents but an insignificant part of the whole suit. In any case, the matter pursued is a “public suit”, while the significance of the personal suit of the plaintiff is but symbolic. In that light, I think it proper to refrain from this demand in its entirety.

The reason given for this demand, which I noted above, according to which if the plaintiff has no personal cause of action, the proceedings will focus upon the personal defense against the plaintiff, and the matter of the entire group will be sidelined, begs the question. If the law establishes that the question of the existence of a personal cause of action is irrelevant, then the defenses against the individual plaintiff are irrelevant, and the proceedings will, in any case, focus upon the entire class of plaintiffs.

In the consumer framework, the requirement of a personal cause of action leads, in practice, to one of two results: either no appropriate plaintiff will be found who is willing to “contribute” his cause of action to the proceedings in the service of the general public, or, if such a consumer be found, he will often be nothing more than a kind of “straw man” backed by some commercial group organized for the purpose of obtaining the compensation attendant to succeeding in a class action.

And indeed, the demand for the existence of a personal cause of action in the consumer context has drawn criticism in the legal literature.

(and see: M. Bar-Niv, (Bornowski), “The Limits of the Consumer Class Action,” 19 Iyunei Mishpat 251, 257-258 (1994) (Hebrew).

 

21.       On point, I am of the opinion that Barazani showed that he had a prima facie personal cause of action – and most important – that Bezeq’s misleading advertisement, upon which his suit was based, was appropriate for a class action. Indeed, Barazani did not claim that he had been exposed to the advertisement, but he also did not state the opposite. In fact, in the proceedings before the District Court – which did not focus upon this question – Barazani was never asked if he had been exposed to the advertisement. Under these circumstances, we may, and should, assume that Barazani’s situation is no different than that of most of Bezeq’s other customers. Whether the consumers were exposed to the advertisement and remember it, or whether they learned of the matter of the advertisement at a later stage, it is clear that it would only have aroused their attention when it was discovered that the advertisement was misleading, and that as opposed to what Bezeq had promised its customers, it continued to charge them for whole meter units. It  is clear from the apparent facts that the advertisement was intended to influence Bezeq’s customers to increase their use of the advertised service, and that would appear, on its face, to lead to a conclusion that the misleading advertisement could justify recognizing the concrete reliance of all the customers to whom Bezeq directed its advertisement.

            The suit that Barazani submitted to the court was appropriate, by its nature, to be addressed as a class action. We are concerned with a large community of Bezeq subscribers whose accounts were charged for international telephone calls at a rate that was higher than the rate that Bezeq was entitled to charge according to its advertisement. Addressing the class action on the merits would allow the court to decide whether Bezeq’s advertisement indeed comprised the elements of a misleading publication that warranted pecuniary relief. If the court were to answer this question in the affirmative, it could easily determine the extent of direct injury. Proving the direct injury is not contingent upon the question of whether the customers made greater use of the specific service as a result of the advertisement, but upon the difference between the amounts the customers who used the service were charged and the amounts that Bezeq was entitled to charge its customers based upon its advertisement. This can easily be determined, inasmuch as Bezeq undoubtedly has all of the necessary data for calculating the difference in regard to each customer, and I cannot imagine that Bezeq would seek to conceal that information from the court.

22.       One last comment in conclusion. While the District Court decision that was the subject of the Appeal dismissed Barazani’s request to permit him to file a class action for pecuniary relief, it accepted his alternative request to file a class action for declaratory relief. However, the majority in the Appeal granted Bezeq’s counter-appeal and rescinded the permission granted to Barazani to submit the suit for declaratory relief. In stating the reasons for that decision in the Appeal, the Chief Justice wrote:

 

Should we not recognize Barazani’s ability to serve as a representative plaintiff for declaratory relief stating that Bezeq’s advertisement was “liable to mislead” a consumer? This question raises several problems, which can be left for future consideration for the following reasons: In his complaint, Barazani defined the members of the group as the community of Bezeq customers who paid a higher fee than that advertised by Bezeq, and as a result incurred monetary harm. Barazani does not “properly represent the interests of all the members of the group” (sec. 43B (4) of the Law), inasmuch as he did not himself suffer monetary harm as a result of the deception. Therefore, Bezeq’s we should grant the appeal, and find that Barazani is also not an appropriate representative plaintiff in regard to the declaratory remedy.

 

Was it proper to deny Barazani the limited permission granted him to file a class action for declaratory relief? The answer to this question – that Justice Cheshin did not address in his opinion – must, in my opinion, be no. After all, even according to the approach of the Chief Justice in the Appeal, Barazani has a personal cause of action against Bezeq because its advertisements were “likely to mislead” him, in which framework he could have petitioned for non-monetary relief, such as a restraining order. The basis for denying his request to file his personal suit for declaratory relief as a class action could accord with the opinion of the majority in the Appeal if there were another representative plaintiff before the court – who met the reliance requirement and even suffered monetary harm as a direct result of the deception – who might represent the interests of the consumers better than Barazani. But I fear that such was not the case. To date, no such alternative representative plaintiff has presented himself before the court, and even if we were to assume that such a plaintiff may yet appear in the future, I fear that his suit may be denied in limine by reason of prescription.

 

Conclusion

 

23.       Subject to the above, I concur in the opinion of my colleague Justice Strasberg-Cohen that the petition for a Further Hearing should be granted, and that the Petitioner should be allowed to file a class action, as requested.

 

                                                                                                            Justice

 

 

Justice Dalia Dorner:

 

            In my opinion, the Petition should be granted. The reason for this is that the Petitioner relied upon the misleading representations of Bezeq and was harmed as a result of that concrete reliance. In any case, all of the elements of the tort were present, and the Petitioner is an appropriate plaintiff for a class action.

 

The Legal Foundation

 

1.         The Consumer Protection Law, 5741-1981 (hereinafter: the Law), intervenes in contracts between unequal parties, and imposes an increased duty of fairness upon the stronger party – the supplier – toward the weaker party – the consumer. See LCA 8733/96 Langbert v. State of Israel, IsrSC 55 (1) 168 (hereinafter: CA Langbert), at p. 174. The Law is firmly anchored in established doctrines of contract law. See Sinai Deutch, “Consumer Contracts Law versus Commercial Contracts Law,” 23 (1) Iyunei Mishpat 135 (2000). The purposes of the Law – among them, reinforcing personal autonomy, advancing commercial fairness and the protection of market integrity – well accord with the freedom of contract, which requires the full realization of a true meeting of minds of the parties to a transaction. This freedom is infringed when the consumer is misled into believing that he is undertaking obligations under transaction conditions that are different from the actual ones. Moreover, the duties of the dealer clearly reflect the overarching good-faith principle of Israeli contract law, which justifies eroding the once accepted principle of caveat emptor. See Gabriela Shalev, Contract Law (2nd ed., 1995), 221.

            The Law was intended to provide an additional layer of defense to the consumer public that is exposed to deception by means of well-developed marketing and advertising methods (see the Consumer Protection Law Bill, H.H. 5740 at p. 302). This is achieved both by augmenting the duties of suppliers, and by broadening the means available to consumers for enforcing their rights. These means include criminal offenses and civil causes of action, among then the tort prohibiting deceit in sec. 2 (a).

 

The Contractual Framework for the Relationship between Dealers ad Consumers

 

2.         Many consumer transactions are premised upon a significant amount of consumer faith in the suppliers. In the framework of such relationships, consumers are not expected to check, before purchasing a service, that they will be charged the declared price, and they can rely upon the suppliers not to charge more than that price. If the consumer should discover at a later date that he was overcharged, he can demand and receive a refund. That is well-established in the accepted contractual doctrines that require that if a supplier charge more than the correct, advertised price, the consumers will be entitled to a refund of the difference, as well as in the social reality grounded upon them, in which consumers actually tend to place their trust in suppliers without checking that every transaction conforms with the advertisements.

            A supplier’s advertisements concerning a specific price grants the consumers a right not to pay more. In any case, if the supplier charge a higher price, that would constitute a breach of contract that would entitle even consumers who were not exposed to the advertisement to a pecuniary remedy. That right can be grounded in the following three different ways.

            The first way sees a supplier’s advertisement of a price as an irrevocable offer to the public, which can be accepted by the objective performance of its conditions, while the dealer is bound by the advertised price, and makes the possibility of purchasing the product or service for a price that will not exceed it, available to the public.  See Daniel Friedman & Nili Cohen, Contracts, vol. 1 (1991) 182; Shalev, ibid., at p. 115. The consumers are not expected to check the price prior to the transaction. In any case, by accepting the offer, the parties agree to the advertised price. The supplier will be required to refund any additional charge to the consumer.

The second way sees the contract as comprising an implied term that requires the supplier not to charge a consumer more than the advertised prices. Such a term is required by the expectations of the parties. Overcharging constitutes a breach of that term.

The third way classifies the said overcharging, particularly where it concerns consumers who were not exposed to the advertisement, as a bad-faith performance of the contract.

3.         It is on the basis of this legal conception, independent of the precise manner of its grounding, that consumers actually behave in practice. Typical Israeli consumers do not check, and are not expected to check, that the prices they are charged for each and every product in the supermarket are identical to the price printed on the product, and certainly do not check, and are not expected to check, that they received the discounts that were advertised by the chain from which they made the purchase. Consumers rely that they will be charged the prices, and credited with the discounts, as advertised. Similarly, the consumers of the telephone companies do not check the prices and current discount campaigns before each and every phone call, relying that they will be charged in accordance with the correct advertised prices.

 

Section 2 (a) of the Law

 

4.         When a supplier publishes notice that the price of a service is lower than a specific price, the consumer public to which the advertisement is directed – including consumers who are not exposed to the advertisement – acquires a right to receive the service at the price stated by the supplier. When consumers purchase the services of the supplier, they rely, in practice, on the fact that the price they will be charged will be the advertised price.

            That reliance exists regardless of whether the advertisement is innocent and clear or whether it is ambiguous and misleading (and see, for example, CA Langert, above). In both cases, the consumers acquire a right, and the suppliers are subject to an obligation, that they will not be charged more than the maximum price reflected in the advertisement, less the deceit, that they would be have been charged in accordance with the advertisement. The difference between the two types of cases regards the consequences that directly result from the advertisement. Only in the case of a misleading advertisement can one acquire those remedies established by law that do not require proof of injury, such as restraining orders. Moreover, only a misleading advertisement can be deemed tortious conduct. The potential to mislead must be evaluated at the time of publication, in accordance with the factual situation at that time. An innocent advertisement cannot be deemed misleading if its content is unambiguous, only as the result of the future conduct of the supplier. Otherwise, every advertisement would be deemed “liable to mislead”, as suppliers always have the ability to breach their obligations.

            However, a supplier commits a tort under sec. 2 (a) of the Law even in the absence of a misleading advertisement both when he presents a consumer with an invoice based upon a price that is different and higher than the advertised price, and when he charges a consumer – e.g., by means of a standing bank order – a higher price than that advertised. Such conduct constitutes an instance of doing “anything – by deed or by omission, in writing, by word of mouth or in any other manner … which is liable to mislead a consumer on any substantive element of the transaction”. That is so because when a supplier demands or charges a particular price, he makes a representation upon which consumers rely, and according to which, that is the correct price as advertised. The consumers are entitled to purchase the service at the advertised price, whatever it may be, and when they pay the supplier the amount in the invoice, or permit the supplier to charge their accounts, they do so on the basis of reasonable reliance that the supplier will not charge more than what was advertised. There is a kind of “integrity of the price” (see Basic v. Levinson, 485 U.S. 224, 247 (1988)).

            The difference between the amount the consumer should pay according to the advertisement and the amount actually charged is the injury caused to that consumer. This injury caused to the consumer is connected by a direct, factual connection to the tortious conduct of the supplier. The consumer paid the additional amount due to the supplier’s deceit. Had the supplier not breached its duty, and had it charged the consumer the correct price, the consumer would have paid the correct price and would not have been injured.

            Therefore, there is no need to prove exposure to the advertisement and conduct resulting from that advertisement in order to be entitled to damages for that deceit, and it is not required under current Israeli law. Other countries that have similar tort and consumer protection laws do not all have a similar requirement, particularly in regard to class actions. Compare, for example, Slaney v. Westwood, Inc. 366 Mass. 688 (1975); Amato v. General Motors Corporation, 463 N.E.2d 625 (1982); Carpenter v. Chrysler Corporation, 853 S.W.2d 346 (1993); Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972); Seth William Goren, “A Pothole on the Road to Recovery: Reliance and Private Class Actions Under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law”, 107 Dick. L. Rev. 1.

 

From the General to the Specific – Bezeq and Barazani

 

5.         Bezeq does not currently expect its customers – and certainly did not expect its customers at the time relevant for this case, when it was a monopoly – to use its telephone services only after checking their price. Thus, there is a “standing payment order” arrangement by which the consumer grants Bezeq the right to access his bank account, and the consumer absolutely relies upon Bezeq, while Bezeq des not usually append to a consumer’s bill the full details of phone calls charged. In doing so, Bezeq intends to create an equal arrangement for those who were exposed to the advertisement in regard to its fees and acted thereupon, and those who were not exposed to the advertisement and, therefore, did not act thereupon. As noted, according to the factual findings in the earlier proceedings, the meaning of the advertisement was simple and clear. Nevertheless, Bezeq made a different representation to the consumers, whether in the telephone bill or in charging their accounts, according to which the correct method for calculating was different from the method of calculation in the advertisement, and led to a higher charge. In doing so, Bezeq deceived the consumers, and committed the tortious act. There is no difference between this conduct by Bezeq’s and a case in which it would include the advertised method of calculation in the telephone bill, except that, in practice, it charged a higher fee.

            Considerations of “legal causation” also do not require reducing the tortious liability. Compare sec. 16 of the opinion of Justice Tova Strasberg-Cohen in this Further Hearing, and see FH 12/63 Leon et al. v. Meshullam Ringer, IsrSC 18 (4) 701, at p. 715 per Witkon, J.; CA 145/80 Vaaknin v. Beit Shemesh Local Council, IsrSC 37 (1) 113, at p. 145; and compare Itzhak Englard, Aharon Barak & Mishael Cheshin, The Law of Civil Wrongs, Gad Tedeschi, ed., (1970) 187.

            It should be noted that in light of the finding that the meaning of the advertisement – that Bezeq would not charge “for the time period not actually used for the call” – was clear, the conduct could not have constituted tortious conduct under sec. 2 (a) of the Law. But even if it had been found that the advertisement was misleading, there still would have been legitimate, concrete reliance by the consumer that he was being charged the correct amount as advertised, and therefore the elements of the tort would have crystalized on the basis of the tortious conduct committed in the charging.

            Barazani therefore has a personal cause of action against Bezeq. The existence of Barazani’s personal cause of action having been proved, whether or not he was exposed to the misleading representation, the path to representing the group in a class action is open to him.

            I, therefore, concur with the result recommended by my colleagues Justices Tova Strasberg-Cohen and Eliahu Mazza, according to which the Petition should be granted and the filing of the class action should be allowed.

 

                                                                                                                        Justice

 

The petition is dismissed in accordance with the majority opinion, and the judgment of the Supreme Court in CA 1977/97 is affirmed.

Given this 13 day of Av 5763 (11 August 2003).

 

The Chief Justice                                The Deputy Chief Justice                               Justice

Justice                                                 Justice (ret.)                                                     Justice

           

 

 

[1] Translator’s note: I Kings 18:29.

[2] Translator’s note: The phrase is a reference to a rabbinic principle of biblical hermeneutics, see, e.g., Mekhilta deRabbi Ishmael, Masekhta deShira 7; Sifrei Numbers, Beha’alotekha 64; Babylonian Talmud, Tractate Pesaḥim 6b.

[3] Translator’s note: The original Hebrew employs the letter kaf as a prepositional prefix, called the “kaf of comparison”, meaning “as” or “like”.

[4] Translator’s note: The original Hebrew phrase is “ke-din avla”.

[5] Translator’s note: The Talmudic quote is a wordplay that exploits the use of the word beitza to mean an egg and to designate a measure of volume.  In its original context, the phrase means “an egg is superior to any other food of an equal amount”.

[6] Translator’s note: The reference is to Mishna Ḥagigah 1:8 “The laws concerning the Sabbath, festival offerings and the trespass of consecrated objects are as mountains hanging by a hair, that have few supporting scriptural verses but many laws”.

[7] Translator’s note: Genesis 22:1

[8] See note 3, above.

Full opinion: 

Daaka v. Carmel Hospital

Case/docket number: 
CA 2781/93
Date Decided: 
Sunday, August 29, 1999
Decision Type: 
Appellate
Abstract: 

Facts: Appellant was admitted to the hospital for an operation on her left leg, and she signed a consent form agreeing to the operation. Two days later, after being placed on the operating table and receiving sedatives in advance of undergoing anesthesia, she was asked to sign a consent form for a biopsy operation on her right shoulder. She did so, and the biopsy was performed and did not reveal malignancy. After being released from the hospital, her shoulder remained stiff. Appellant sued the hospital for negligence, claiming negligence in failing to receive her informed consent, in the decision to conduct the biopsy, and in the treatment she subsequently received. The trial judge dismissed the claim.

 

Held: The Court granted the appeal through a plurality opinion written by Justice Or, in which President Barak, Deputy President Levin, and Justices Cheshin, Strasberg-Cohen, and Englard concurred. Justice Or held that there was no negligence in the decision to perform the biopsy, they way it was performed, or in the post-operative treatment, but that the hospital was negligent in not receiving Appellant’s informed consent to the operation. There was no causal connection, however, between failure to obtain informed consent and the damage caused by the operation, because Appellant would almost certainly have agreed to the operation, had she been informed of its nature and risks. Appellant was not entitled to recover for her bodily damage, but she was entitled to recover for the violation of autonomy in not obtaining her informed consent, which is a separate head of damage in tort claims. Justice Strasberg-Cohen wrote separately to say that determining a causal connection in a hypothetical situation – e.g. whether Appellant would have agreed to the operation had her informed consent been sought – should be done through the evaluation of chances test, in which a patient may recover proportional damage if the chance that he or she would have agreed to the operation is more than negligible, even if it is not more 50%. Because there was a 50% chance that Appellant would not have consented to the operation, Appellant should be awarded half the physical damages, in addition to compensation for violation of autonomy. Justice Beinisch dissented, holding that Appellant would not have consented to the operation and that she was therefore entitled to full recovery for the bodily injury suffered. Awarding compensation for violation of autonomy should be reserved for rare cases which do not include this one.

Voting Justices: 
Author
dissent
Primary Author
majority opinion
Author
concurrence
Author
concurrence
majority opinion
Author
concurrence
majority opinion
Full text of the opinion: 
 

CA 2781/93

Miassa Ali Daaka

v.

1. Carmel Hospital, Haifa

2. Health Fund of General Association of Workers in Israel

The Supreme Court Sitting as the Court for Civil Appeals

[August 29, 1999]

Before President A. Barak, Deputy President S. Levin, and Justices T. Or, M. Cheshin, T. Strasberg-Cohen, D. Beinisch, I. Englard

Facts: Appellant was admitted to the hospital for an operation on her left leg, and she signed a consent form agreeing to the operation. Two days later, after being placed on the operating table and receiving sedatives in advance of undergoing anesthesia, she was asked to sign a consent form for a biopsy operation on her right shoulder. She did so, and the biopsy was performed and did not reveal malignancy. After being released from the hospital, her shoulder remained stiff. Appellant sued the hospital for negligence, claiming negligence in failing to receive her informed consent, in the decision to conduct the biopsy, and in the treatment she subsequently received. The trial judge dismissed the claim.

Held: The Court granted the appeal through a plurality opinion written by Justice Or, in which President Barak, Deputy President Levin, and Justices Cheshin, Strasberg-Cohen, and Englard concurred. Justice Or held that there was no negligence in the decision to perform the biopsy, they way it was performed, or in the post-operative treatment, but that the hospital was negligent in not receiving Appellant’s informed consent to the operation. There was no causal connection, however, between failure to obtain informed consent and the damage caused by the operation, because Appellant would almost certainly have agreed to the operation, had she been informed of its nature and risks. Appellant was not entitled to recover for her bodily damage, but she was entitled to recover for the violation of autonomy in not obtaining her informed consent, which is a separate head of damage in tort claims. Justice Strasberg-Cohen wrote separately to say that determining a causal connection in a hypothetical situation – e.g. whether Appellant would have agreed to the operation had her informed consent been sought – should be done through the evaluation of chances test, in which a patient may recover proportional damage if the chance that he or she would have agreed to the operation is more than negligible, even if it is not more 50%. Because there was a 50% chance that Appellant would not have consented to the operation, Appellant should be awarded half the physical damages, in addition to compensation for violation of autonomy. Justice Beinisch dissented, holding that Appellant would not have consented to the operation and that she was therefore entitled to full recovery for the bodily injury suffered. Awarding compensation for violation of autonomy should be reserved for rare cases which do not include this one.

Israeli Supreme Court Cases Cited:

[1]        CA 3108/91 Reibe v. Veigel, IsrSC 47 (2) 441.

[2]        CA 560/84 Nachman v. Histadrut Health Fund, IsrSC 40(2) 384.

[3]        CA 4384/90 Vaturi v. Leniado Hospital, IsrSC 51 (2) 171.

[4]        CA 470/87 Alturi v. State of Israel – Ministry of Health, IsrSC 47(4) 146.

[5]        CA 58/82 Kantor v. Moseib, 39(3) 253.

[6]        CA 5049/91 Histadrut Klalit Health Fund v. Rachman, IsrSC 49 (2) 369.

[7]        CA 434/94 Berman (Minor) v. Moore Institution for Medical Information Ltd, IsrSC 51(4) 205.

[8]        CA 6643/95 Cohen v. Histadrut Klalit Health Fund, IsrSC 53 (2) 680.

[9]        FHC 7015/94 Attorney General v. Anonymous, IsrSC 50 (1) 48.

[10]     HCJ 2481/91 Dayan v. Jerusalem District Commissioner, IsrSC 48(2) 456

[11]     HCJ 693/91 Efrat v. Director of Population Registry of the Ministry of the Interior, IsrSC 47(1) 749.

[12]     HCJ 7357/95 Baraki Peta Humphries (Israel) Ltd. v. State of Israel, IsrSC 50(2) 769.

[13]     HCJ 4330/93 Ganem v. Tel-Aviv District Committee of the Bar Association Committee, IsrSC 50(4) 221.

[14]     CA 5942/92 Anonymous v. Anonymous, IsrSC 48(3) 837.

[15]     CA 1233/94 Cohen v. Attorney General (unreported).

[16]     HCJ 50161/96 Horev v. Minister of Transportation, IsrSC 51(4) 1; [1997] IsrLR 149.

[17]     CA 7155/96 Anonymous v. Attorney General, IsrSC 51(4) 160.

[18]     LCA 1412/94 Ein Kerem Medical Association v. Gilad, IsrSC 49(2) 516.

[19]     CA 4837/92 “Eliyahu” Insurance Company v. Borba, IsrSC 49(2) 257.

[20]     CA 243/83 Jerusalem Municipality v Gordon, IsrSC 39(1) 113.

[21]     CA 4500/90 Hershko v. Aurbach, IsrSC 49(1) 419.

[22]     CA 558/84 Carmeli v. State of Israel, IsrSC 41(3) 757.

[23]     CA 1730/92 Matzrava v. Matzrava (unreported).

[24]     LCrim 6795/93 Agadi v. State of Israel, IsrSC 48(1) 705.

[25]     CA 915/91 State of Israel v. Levi, IsrSC 48(3) 45.

[26]     CA 50/91 Sabin v. Minister of Health, IsrSC 47(1) 27.

[27]     CA2989/95 Korantz v. Sapir Medical Center “Meir” Hospital, IsrSC 51(4) 687.

[28]     CA 429/82 State of Israel v. Sohan, IsrSC 42(3) 733.

[29]     CA 283/89 Haifa Municipality v. Moskovitz,, IsrSC 47(2) 193.

[30]     CA 37/86 Levi v. Sherman, IsrSC 44(4) 446.

[31]     CA 2934/93 Soroka v. Hababu, IsrSC 50(1) 675.

[32]     CA 414/66 Fishbein v. Douglas Victor Paul by Eastern Insurance Service, IsrSC 21(2) 453.

[33]     CA 591/80 Chayu v. Ventura, IsrSC 38(4) 393.

[34]     CA 437/73 Aik (minor) v. Dr. Rosemarin, IsrSC 29(2) 225.

[35]     CA 145/80 Vaknin v. Beit Shemesh Local Council, IsrSC 37(1) 113.

[36]     FH 24/81 Honovitz v. Cohen, IsrSC 38(1) 413.

[37]     CA 20/80 Fleisher v. Laktush, IsrSC 36(3) 617.

[38]     CA 410/83 Petrolgas Israeli Gas Company (1969) Ltd .v. Kassero IsrSC 40(1) 505.

[39]     CA 231/84 Histadrut Health Fund v. Fatach IsrSC 42(3) 312.

[40] CA 679/82 Netanya Municipality v. Tzukim Hotel Ltd. (not published).

[41]     CA 355/80 Nathan Anisivmov Ltd v. Tirat Bat Sheva Hotel Ltd, IsrSC 35(2) 800.

Israeli District Court Cases Cited:

[42]     CC (B. Sheva) 88/84 Assa v. Histadrut Health Fund, 1987 DC 32(3).

United States Cases Cited:

[43]     Rogers v. Whitaker (1992) 67 Aust. L.J. 47.

[44]     Chappel v. Hart (1998) 72 Aust. L.J. Rep. 1344.

[45]     Salis v. United States 522 F. Supp. 989 (1981).

[46]     Kramer v. Lewisville Memorial Hosp. 858 S.W. 2d 397 (1993).

[47]     Falcon v. Memorial Hosp. 462 N.W. 2d 44 (1990).

[48]     Canterbury v. Spence 464 F. 2d 772 (1972).

[49]     Hartke v. McKelway 707 F. 2d 1544 (1983).

[50]     Sard v. Hardy 379 A. 2d 1014 (1977).

[51]     Bernard v. Char 903 P. 2d 667 (1995).

[52]     Memphis Community School Dist. v. Stachura 106 S. Ct. 2537 (1986).

[53]     Schloendorff v. Society of New York Hospital 105 N.E. 92 (1914).

[54]     Natanson v. Kline 350 P. 2d 1093 (1960).

[55]     Cobbs v. Grant 502 P. 2d 1 (1972).

English Cases Cited:

[56]     Smith v. Barking Havering & Brentwood Health Authority (1989) (Q.B. – unreported).

[57]     Lachambre v. Nair [1989] 2 W.W.R. 749.

[58]     Alexander v. Home Office [1988] 2 All E.R. 118 (C.A.).

[59]     Chatterton v. Gerson [1981] 1 All E.R. 257 (Q.B).

[60]     Bolitho v. City and Hackney Health Authority [1997] 3 W.L.R. 1151 (H.L.).

[61]     Davies v. Taylor [1972] 3 All E.R. 836 (H.L.).

[62]     Bolam v. Friern Hospital Management Committee (1957) 2 All E.R. 118 (Q.B.).

[63]     Airedale NHS Trust v. Bland [1993] 1 All E.R. 821 (H.L.).

[64]     St. George’s Healthcare NHS Trust v. S. [1998] 3 All E.R. 673 (C.A.).

[65]     Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871.

Scottish Cases Cited:

 [66]    Goorkani v. Tayside Health Board [1991] S.L.T. 94.

Canadian Cases Cited:

[67]     Reibl v. Hughes (1980) 114 D.L.R. (3rd) 1.

[68]     Arndt v. Smith (1995) 126 D.L.R. (4th) 705.

[69]     Arndt v. Smith (1997) 148 D.L.R (4th) 48.

[70]     Hopp v. Lepp (1980) 112 D.L.R. (3rd) 67.

[71]     Malette v. Shulman (1990) 67 D.L.R. (4th) 321.

[72]     Hollis v. Dow Corning Corp. (1995) 129 D.L.R. (4th) 609.

Israeli Books Cited:

[73]     D. Barak-Erez, Avlot Chukatiot [Constitutional Torts] (1994).

[74]     I. Englard, Yesodot Haachraut Benezikin, Dinei Nezikin – Torat Hanezikin Haclallit [Foundations of Liability in Tort] in [The General Doctrine of Torts], (G. Tedeschi, ed. 2 ed. 1977).

[75]     G. Shalev, Dinei Chozim [Contracts Law] (2nd Ed. 1995).

[76]     3 A. Barak, Parshanut Bimishpat [Interpretation in Law], Parshanut Chukatit [Constitutional Interpretation] (1994).

Israeli Articles Cited:

[77]     A. Shapira, Haskama Mudaat Letipul Refui- Hadin Hamatzui Veharatzui [Informed Consent to Medical Treatment], 14 Iyunei Mishpat (1989) 225.

[78]     R. Gavison, Esrim Shana Lehilchat Yardor – Hazechut Lehibacher ViLikachei Hahistoria [Right to be Elected], Gevurot LeShimon Agranat (Barak et al. ed 1987) 145.

[79]     Y. Gilad, Al Hanachot Avoda, Intuitzia Shiputit Veratzionaliut Bekeviat Gidrei Achrayut BeRashlanut [Borders of Negligence], 26 Mishpatim (1995-1996) 295.

[80]     A. Porat, Dinei Nezikin: Avlat Harashlanut alpi Pesikato shel Beit Hamishpat Haelyon Minekudat Mabat Theoretit [Tort of Negligence], Sefer Hashana Shel Hamishpat BeYisrael – 1997 (Rozen ed. 1997) 373.

[81]     R. Shapira, Hamechdal Hahistabruti shel Dinei Haraayot – Chelek 1 – Bikorot Mesortiot [Omission in Evidence Law], 19 Iyunei Mishpat (1995) 205.

[82]     A. Porat, Doctrinat Hanezek Haraayati: Hahatzdakot LeImutza Veyisuma Bematzavim Tipussim shel Ivadaut Begrimat Nezakim [Doctrine of Evidentiary Damage], 21 Iyunei Mishpat (1998) 191.

Foreign Books Cited:

[83]     I. Englard, The Philosophy of Tort Law (1993).

[84]     W.L. Prosser, W.P. Keeton On the Law of Torts (5th ed.,
 W.P. Keeton et al. 1984).

[85]     H. Street, M. Brazier, On Torts (9th ed., M. Brazier 1993).

[86]     D. Giesen, International Medical Malpractice Law (1988).

[87]     I. Kennedy, A. Grubb, Medical Law (2nd ed. 1994).

[88]     R. Nelson-Jones, F. Burton, Medical Negligence Case Law (2nd ed. 1995).

[89]     H. McGregor, On Damages (15th ed. 1988).

[90]     M. Jones, Medical Negligence (2nd ed. 1996).

[91]     M.J. Powers, N.H. Harris, Medical Negligence (2nd ed 1994).

[92]     H.L.A. Hart, T. Honor, Causation in the Law (2nd ed. 1985).

[93]     J. Katz, The Silent World of Doctor and Patient (1984).

Foreign Articles Cited:

[94]     M.M. Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219 (1985-1986).

[95]     P.H. Schuck, Rethinking Informed Consent, 103 Yale L.J. 900 (1993-1994).

[96]     A.D. Twerski, N.B. Cohen, Informed Decision Making and The Law of Torts: The Myth of Justiciable Causation, U. Ill. L. Rev. 607 (1988).

[97]     F. Carnerie, Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion, 12 Am. J. L. and Med. 55 (1986).

[98]     D. Hermann, The Basis for the Right of Committed Patients to Refuse Psychotropic Medication, 22 HOSPLW 176 (1989).

[99]     R.B. Dworkin Medical Law and Ethics in the Post-Autonomy Age, 68 Ind. L.J. 727 (1992-1993).

[100]   R. Macklin, Symposium: Law and Psychiatry Part II: Some Problem in Gaining Informed Consent From Psychiatric Patients, 31 Emory L.J. 345 (1982).

[101]   R. Crisp, Medical Negligence, Assault, Informed Consent, and Autonomy, 17 J. Law & Society 77 (1990).

[102]   M.R. Flick, The Due Process of Dying, 79 Calif. L. Rev. 1121 (1991).

[103]   W.S. Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev. 60 (1956-1957).

[104]   A. Porat, A. Stein, Liability for Uncertainty: Making Evidential Damage Actionable, 18 Cardozo L. Rev. 1891 (1996-1997).

[105]   D. Manderson, Following Doctors’ Orders: Informed Consent in Australia, 62 Aust. L.J. 430 (1988).

[106]   M.A. Somerville, Structuring the Issues in Informed Consent, 26 McGill L.J. 740 (1980-1981).

 

[107]   J. Raz, Autonomy, Toleration, and the Harm Principle in Issues in Contemporary Legal Philosophy 313 (Gavison ed. 1987).

[108]   J. Katz, Informed ConsentMust it Remain a Fairy Tale?, 10 J. Contemp. H.L. & Pol’y 69 (1994).

[109]   C.J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 Washington & Lee L. Rev. 379 (1990).

[110]   J. Keown Burying Bolam: Informed Consent Down Under, 53 Cambridge L.J. 16 (1994).

[111]   D. Feldman, Secrecy, Dignity, or Autonomy? Views of Privacy as a Civil Liberty, 47 Cur. Leg. Prob. 41 (1994).

[112]   M.A. Bobinski, Autonomy and Privacy: Protecting Patients from their Physicians, 55 U. of Pitt. L. Rev. 291 (1993-1994).

[113]   N.P. Terry, Apologetic Tort Think: Autonomy and Information Torts, 38 St. Louis U. L.J. 189 (1993-1994).

Miscellaneous:

[114]   Restatement 2d, Torts.

Appeal against judgment of the Nazareth District Court (Judge G. Ginat) of January 29, 1993 in CC 425/90.

The appeal was allowed in part by the majority, in accordance with the opinion of Justice T. Or

For Appellant – Akiva ben Chaim, Elad Cohen

For Respondents – Ricardo Weiss

JUDGMENT

 

Justice D. Beinisch

This is an appeal of the judgment of the District Court of Nazareth )Judge G. Ginat) in CF 425/90 of March 29, 1993, which rejected the appellant’s claim for damages for physical harm that she sustained as a result of the biopsy performed on her shoulder in the respondents’ hospital.

The Facts

1. Appellant is disabled, born in 1959, who since birth has suffered from a deformity in the sole of her left foot. Sometime during 1987, Appellant also began suffering from pains in her right shoulder. After symptomatic treatment failed to help, x-rays were done, followed by bone mapping, resulting in a diagnosis of “diffusive absorption.”

On January 5, 1988, Appellant was hospitalized in the “Carmel” hospital – Respondent 1 – for an operation on her left leg. Two days later, on January 7, 1988, Appellant was operated upon and a biopsy was performed on her right shoulder, because of a suspicion of a growth on the shoulder and the need for a clear diagnosis as to the cause of the diffuse absorption, which had shown up in the bone mapping. The change in the operation was apparently the result of the doctor’s decision, immediately before the operation, that the finding in the shoulder necessitated an operation that was more urgent than the operation in the leg.

On the day of hospitalization, Appellant was asked to sign a form recording her consent to an operation on her leg. Two days later, when she was actually on the operating table, having already received sedatives given to patients prior to being taken from the orthopedic ward to the operating theatre, she was asked to sign a consent form for an operation on her shoulder.

The operation did not reveal anything, and after five days of hospitalization, the appellant was released from the hospital and referred for continued treatment in the hospital’s outpatient clinic.

After the operation, Appellant’s shoulder remained stiff, and the parties agree that she has a disability of 35%. Similarly, it is not disputed that if not for the biopsy, presumably the shoulder would not have become stiff, except that the respondents maintain that the injury is rooted in the appellant’s unwillingness to move her shoulder.

On November 30, 1988, Appellant underwent the operation on her leg, and as a result there was a significant improvement in the condition of the leg. At the same time, she underwent manipulation on the shoulder to improve its mobility. On December 28, 1989, Appellant underwent additional manipulation, but to no avail; the shoulder remained stiff.    

Appellant filed a claim against the respondents, demanding compensation for the physical harm to her shoulder caused by the operation. Her claim was exclusively based on the grounds of negligence. Appellant claimed that she had been totally unaware of the doctors’ intention to operate on her right shoulder, becoming aware of the fact only when coming out of the anesthetic. Appellant further claimed negligence in the medical treatment given to her, both regarding the actual decision to conduct a biopsy and regarding the treatment she received after the biopsy.

The Judgment of the Trial Court

2. The honorable Judge Ginat dismissed the claim of negligence in all its aspects.

Regarding the allegation of negligence in the execution of the biopsy, the judge ruled that even Appellant’s expert, whose opinion was the basis of the claim, did not categorically state that there was no justification for conducting a biopsy on the basis of the findings that were before the doctors. In the trial judge’s view, this was sufficient grounds for dismissing the allegation of deviation from appropriate professional standards on the part of the treating doctors in their decision to conduct the biopsy.

Regarding Appellant’s claim that she never consented to the biopsy operation, the trial judge determined that already prior to her hospitalization, Appellant had been aware of the problem with her shoulder, and that nothing in the evidence substantiated her claim that she was shocked when finding out that her shoulder and not her leg had been operated upon. He further ruled that he had no doubt that at a certain stage during the admission procedure into the hospital, there had been a hitch in the sense that the appellant initially signed a consent form for the operation on her leg, and only at the last moment, just before the biopsy was conducted, was she asked to sign another consent form which included the correct description of the anticipated treatment. In the lower court’s view, the aforementioned hitch was insufficient to substantiate the claim that Appellant had not consented to the conduct of the biopsy:

In these circumstances there is no escaping the conclusion that there was no defect in the decision to conduct the biopsy. I am also of the opinion that the plaintiff consented to the treatment after being explained that it was the appropriate medical treatment…

In these circumstances, given the appellant’s total denial of having received any information regarding the anticipated treatment for her shoulder, and given my rejection of her denial, I am unwilling to hear an alternative factual allegation from her to the effect that she had received information on the matter but that it was incomplete.

The trial judge further stated that the sole grounds for the action relied upon by Appellant was negligence, and that such claim required proof of the causal connection between the negligence and the damage. Since Appellant had not proved that her shoulder was damaged as a result of breach of the obligation to supply her with information, her claim should be dismissed, even assuming, arguendo, that the appellant had not received complete information prior to the biopsy.

Regarding the allegation of negligence in the medical treatment after the operation, the trial judge ruled that there was no foundation for the appellant’s claim that different physiotherapeutic treatment would have prevented the damage to her shoulder. The trial judge did not totally endorse the doctors’ claim that conceivably a greater degree of effort on the appellant’s part would have prevented the damage to her shoulder. Nonetheless, he ruled that absent any claim regarding a defect in the execution of the biopsy, and having dismissed the claim regarding the nature of the physiotherapeutic treatment given to the appellant, it was not possible to establish negligence in the medical treatment, and such negligence could not be inferred from the actual occurrence of the damage itself.

3. In her appeal, Appellant claimed that even if the tort of battery was explicitly claimed in the complaint, the lower court was nonetheless mistaken in its failure to address it, given that the factual components of the tort of battery were fully described in the complaint.

On the merits of the issue, counsel for the appellant contended that the lower court erred in its rejection of Appellant’s claim that she had not consented to the operation. He argued that even if prior to the operation, the appellant had suffered from certain medical problems in her shoulder, this fact by itself did not contradict her claim that she was shocked upon finding out that her shoulder had been operated upon.

In summations, Appellant further claimed that respondents’ doctors had been negligent in their actual decision to perform the operation, which was allegedly performed without justification, and that they were negligent in the post surgical treatment. It was further claimed that respondents bear the burden of proving the absence of negligence, under the rule that “the thing speaks for itself” and that the court erred in its failure to apply that rule to the circumstances of the case.

During oral arguments in the appeal, Appellant focused on the question of the absence of consent to the operation on the shoulder. He claimed that in this case, the elements of the tort of battery had been proven, and that the respondents were therefore liable for damage caused to the appellant by the operation, even in the absence of proof of a causal connection regarding the full extent of damage sustained by Appellant. CA 3108/91 Reibl v. Veigel (hereinafter: “Reibl”) [1] (Shamgar, P). He further added that the case law trend to recognize medical treatment given without consent as constituting the tort of battery had been reinforced following the enactment of the Rights of the Patient Law, 1996 (hereinafter: Patient’s Rights Law).

Respondents countered by claiming that the appeal addresses issues of fact, not law, in which this court does not generally intervene.

Respondents further asked the Court to reject the claim regarding transferring the burden of proof, arguing that, in any event, they had satisfied this burden by proving that they had not been negligent in the treatment they gave to Appellant, both in the operation itself and the post surgical treatment.

4. We are satisfied that no negligence was proven on the respondents’ part regarding the decision to perform the operation on Appellant’s shoulder, nor in the treatment given to Appellant in order to overcome the invalidity caused by the operation, including both the physiotherapy and the additional operations. In this context, there are no grounds for interference with the findings and conclusions of the trial court, grounded in the testimony of the doctors, which it preferred over the medical expert opinion submitted by the appellant.           

Nevertheless, the court’s conclusion and dismissal of the claim caused us considerable consternation, to the extent that it was based on the absence of the appellant’s consent to the operation or on her alternative claim that even if she had given consent, under the particular conditions in which it had been given, it could not be considered “informed consent.”

5. Before addressing the legal conclusions dictated by the proven facts, it is necessary to briefly describe the factual picture regarding the circumstances of the dispute over Appellant’s consent to the operation on her shoulder.

Appellant suffered from pains in her shoulder during the months preceding the operation. As indicated in the affidavit and examination of Dr. Sharvit, the treating orthopedist, and from notes appearing in the patient’s file in the Health Fund during the period preceding the operation, Appellant was sent for a number of tests, including a bone scan. The health file indicates that on November 27, 1987, in view of the scan findings, Dr. Sharvit recommended that the appellant be sent for a biopsy. Until the appellant’s actual hospitalization, no date was set for the recommended biopsy.

As described above, the appellant was hospitalized on January 5, 1988 for an operation on her leg, and she also signed a consent form for the operation. The hospital documents, the illness summary and treatment record, submitted as exhibits, indicated that Appellant had been admitted to the hospital for an elective operation on her leg. On January 7, 1988, the operation date, Dr. Antol – the surgeon who operated on Appellant – wrote the following:

It has become clear that she has been suffering from pains in her right shoulder for half a year; the shoulder was examined (bone scan, x-ray), which indicated Rt. Proximal Humerus Steolitic Lesion. The finding was explained to the patient who agreed to the conduct of a biopsy and at this stage to defer the Triple Arthrodesis.

This note was written by Dr. Antol, who testified that he had informed the appellant of the need for the operation on her shoulder on the morning of the operation, when she was lying on the operating table, after discovering that she had signed a consent form for the operation on her leg.

The trial judge ruled that despite the circumstances under which the information and explanation regarding the intended operation were given to the appellant, immediately before the operation, and not in the customary manner, in view of her existing knowledge of her medical history and previous treatment, she understood the nature of the intended operation. From the judge’s findings, it further emerges that had the consent form signed on the operating table been the sole evidence of the appellant’s consent, he would not have ruled that the appellant was aware of the anticipated operation. However, the consent that she gave must be considered against the background of the information she possessed prior to her hospitalization.

The trial court examined the question of liability from the perspective of the tort of negligence, according to claims raised by Appellant, because even during the trial at the District Court, the claim of lack of consent was one of the central claims made by the appellant’s attorney, and he did not raise the claim of battery.

The following questions therefore arise: If the judge was correct in ruling that the appellant gave her consent to the operation, could it be regarded as “informed consent?”; if not, what is the requisite conclusion with respect to the respondents’ liability in tort?

Negligence or Assault

6. The question is therefore whether medical treatment given without the explicit, intelligent consent of the patient, and without knowledge of all the facts regarding the odds and risks of the treatment, is included within the tort of battery. The question has perturbed many researchers and scholars dealing with torts and has also substantially occupied the courts.

Our case law ruled a long time ago that under particular circumstances, this kind of treatment constitutes the tort of battery:

The problem is whether the prospects and risks involved in the examination were explained to the plaintiff prior to his consent. If explained to him, then his consent is effective and binding and the doctors cannot be impugned with battery or any other tortious act by reason of having performed the examination. If the plaintiff did not receive a complete explanation of the risks, then his consent is meaningless and the examination will be regarded as an act of battery, constituting a tort.

CA 560/84 Nachman v. Histadrut Health Fund [2] at 387.

For this reason, according to this rule, compensation must be awarded for damage caused to a patient treated without his having properly consented to the treatment, even absent proof of the breach of the duty of care, and even absent proof of a causal connection between the failure to provide details as legally required and any damage sustained by the patient. See Reibl [1] 509-510.

Considerable reservation has been expressed regarding the resort to the tort of battery as a way of classifying medical treatment. Inter alia, there is uneasiness in imputing anti-social behavior, tainted by wantonness, to medical treatment that was intended entirely to help the other person:

It would appear that there are many for whom the use of the term “battery” in the context of medical treatment is both morally and intellectually repugnant. This is a term which is commonly understood as implying anti social behavior – hitting a person in the face, for example. Stigmatizing a doctor as “an attacker” by reason of medical treatment given to the patient creates discomfort, especially for those adopting judicial decisions. This explains their hesitation in regarding the criminal offense of battery, or the tort of battery as an appropriate tool for adjudicating cases in which medical treatment was provided without appropriate disclosure of information regarding risks and alternatives.

A. Shapira, Haskama Mudaat Letipul Refui – Hadin Hamatzui Veharatzui [77] at 231.

In his book, The Philosophy of Tort [83], Prof. Englard explains that the transition from use of the tort of battery to the doctrine of “informed consent,” based on medical negligence, is the result of the discomfort occasioned by imputing doctors with wanton anti-social behavior, when their sole intention was to assist the patient:

The retreat from the doctrine of battery has been explained by the discomfort of treating doctors, who genuinely care for the well-being of the patient, under a doctrine aimed at sanctioning anti social conduct, usually perpetrated with the worst kind of intentions. Courts were reluctant to stigmatize the physicians with the label of having committed battery, lumping them into the same category as murderers, robbers and bar-room trollers.

Id. at 162.

In her article, “From Informed Consent to Patient Choice: A New Protected Interest” [94], the author M.M. Shultz writes:

Discomfort with treating doctors under a doctrine aimed at antisocial conduct has prompted most jurisdictions to limit the battery action to those relatively unusual situations where a medical procedure has been carried out without any consent, rather than where the consent has merely been insufficiently informed. The modern allegation of battery typically arises when consent to a particular procedure is given and a different or additional procedure carried out.

Id. at 226.

In accordance with this approach, in most states with tort law resembling our own, use of the tort of battery for dealing with medical treatment given without “informed consent” has all but disappeared. Broadly speaking, it is generally accepted that the tort of battery is only resorted to when the patient received no information at all about the type of treatment proposed for him, or was not informed of an inevitable consequence of the treatment, or if the treatment actually provided was substantially different from the treatment of which the patient was informed. Needless to say, the tort of battery will be recognized when the consent was obtained by misrepresentation.

 On the other hand, in cases of absence of “informed consent”, as opposed to the absence of any consent to medical treatment, the focus in the assessment of tortious liability has moved toward the tort of negligence. In this context, the scholar Prosser writes:

A rapidly growing form of medical malpractice litigation involves the doctrine of “informed consent”, which concerns the duty of the physician or surgeon to inform the patient of the risks involved in treatment or surgery. The earliest cases treated this as a matter of vitiating the consent, so that there was liability for battery. Beginning around 1960 however it began to be recognized that the matter was really one of the standard of professional conduct, and so negligence has now generally displaced battery as the basis for liability.

W.L. Prosser, W.P. Keeton, On the Law of Torts [84] at 189 -190.

The distinction between the absence of consent, in which the treatment may be considered as battery and the absence of “informed consent” which is included in the category of the tort of negligence, also ensures the conceptual distinction between “guilt” and “duty,” where failure to discharge a duty is substantively related to the tort of negligence.

In England, too, where the tort of battery is still used more extensively than in the United States and Canada, it was ruled that the patient’s signature on a consent form affirming that the nature of the operation was explained to the patient is not sufficient, unless he or she actually received a proper explanation of the treatment and its risks. The absence of an explanation regarding the risks of the treatment, as opposed to the absence of an explanation of the substance and nature of the treatment, does not vitiate the consent for purposes of battery, but it does constitute a breach of the doctor’s duty, imposing liability for negligence. See H. Street, M. Brazier, On Torts [85].

This distinction was addressed by Judge Laskin, in his judgment in the Canadian Supreme Court:

I can appreciate the temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the risks which it entails, but in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery. Although such a failure relates to an informed choice of submitting to or refusing recommended and appropriate treatment, it arises as the breach of the anterior duty of due care, comparable to the legal obligation to the duty of care in carrying out the particular treatment to which the patient has consented. It is not a test of the validity of the consent.

Reibl v. Hughes (1980) [67] at 10-11.

It should be noted that the trend toward applying the tort of negligence to situations of medical treatment given without informed “consent” does not altogether obviate resort to battery in the context of medical treatment. This claim, however, is limited to special cases in which medical treatment was given in the total absence of consent to treatment on the patient’s part, or when the patient was not informed of its inevitable result.

The tort of negligence in place of battery in cases of a lack of “informed consent” to medical treatment has gradually become accepted in Israeli case law. In his judgment in CA 4384/40 Vaturi v. Leniado Hospital (hereinafter: Vaturi [3]), Justice Mazza dealt with the doctor’s duty to provide information to the patient regarding the medical treatment, within the framework of the duty of care which is one of the foundations of the tort of negligence:

The doctor’s duty to inform the patient of the information he or she has and its possible consequences derives from the general duty of care which the doctor and the hospital owe to the patient. It is based on our right to know about ourselves. This is an expression of the autonomy of the private will of every person, which expresses our human dignity. See CA 1412/94 Hadassa Medical Association Ein Kerem v. Gilad at 525 (Barak, J.). The doctor’s duty of disclosure is not absolute and does not always extend to all the details of the medical treatment. For example, there is no need to provide the patient with information regarding a remote risk attendant to receiving a vaccination that all people receive, and the necessity of which is not disputed. CA 470/87 Alturi v. State of Israel – Ministry of Health at 153. But where the choice of the medical path or the receipt of medical treatment involves substantial risks, the doctors are obliged (subject to certain exceptions) to provide the patient with the information reasonably required in order to reach an intelligent, informed decision whether or not to choose this particular treatment path, with its attendant risks. See Sid-away v. Bethlem Royal Hospital Governors at 655c (per Lord Scarman); the Koheri case, supra, at 171. This at all events is the most minimal parameter of the duty. Its fulfillment by doctors is intended to serve a practical purpose. It constitutes a part of the duty of care imposed upon the doctor in respect of the patient he is treating. If the duty is breached, and the patient suffers damage as a result, the breach may give the patient a right to indemnification based on negligence.

Vaturi [3] at 182 (emphasis added – D.B.).

In accordance with this evolving approach, and considering the particular circumstances of the case before us, my opinion is that the appellant’s case should be dealt with within the framework of the tort of negligence. Resort to the tort of battery for the provision of medical services should be left for those extreme cases in which the medical treatment was given against the patient’s will, or cases in which the treatment was substantially different from the treatment to which the patient agreed, or when the patient did not receive any information regarding the nature of the treatment or its inevitable consequence.

On the basis of this distinction, the case before us can be distinguished from the Reibl case [1], in which, during the course of the operation, the doctor decided to perform an operation that differed from what had been agreed upon in advance, without such a possibility even having been presented to the patient prior to that time, and without there being any urgency to the matter.

In Appellant’s case, the decision to perform the operation was taken by the doctors with the intention of reaching a clear diagnosis, and in order to verify the suspicion of a growth, in view of findings which were discovered in Appellant’s shoulder. According to the findings of the lower court, Appellant was aware of the need for this treatment, even though the evidence indicates that until she was brought into the operating ward, she did not think there would be a need to the perform an operation on her shoulder during the duration of this hospitalization.

Under these circumstances, it was necessary to clarify whether the manner in which the appellant was informed and the manner in which her consent was obtained indicate negligent conduct on the doctors’ part. This in fact is what the lower court did.

Duty of Care

7. Like the District Court, I too believe that the appellant’s case should be examined within the framework of negligence, but my conclusion differs to that of the trial judge. In my opinion, it was proven that the doctors of the hospital were negligent regarding the procedures that preceded the biopsy. Their negligence was expressed in the fact that, in the first place, they did not discharge their obligation to apprise the appellant of the need for a biopsy during the hospitalization in question. The appellant did not receive timely notice of the intention to postpone the operation on her leg, and it was only in the operating room that she received the pertinent details regarding the operation that she was to about to undergo, when she was already sedated and in a state that was inappropriate for making a decision.

 For a patient’s consent to medical treatment to his or her body to be regarded as “informed consent,” the patient must receive appropriate information regarding his or her condition, the nature of the treatment recommended and its purpose, the risks and prospects entailed, and the reasonable alternatives to the treatment proposed. Having the patient sign a consent form is inadequate for the purpose of informed consent. On the nature of the patient’s signature on the consent form for an operation when the patient is in the operating theater or being brought to the theater, Giesen writes that:

It may be doubtful, indeed, whether such a single act of disclosure will ever suffice if made only shortly before the proposed treatment, such as on the very eve of an operation which has already been scheduled, and the information will undoubtedly come much too late when given to a patient already under sedation, or to a patient on his way to the operating theatre, or to a patient in the anteroom of the operating theatre. “A patient is entitled to have enough time and an environment to enable him or her carefully to consider his or her position.”

D. Giesen, International Medical Malpractice Law [86] at 393.

Today an entire chapter of the Patient’s Rights Law deals with “informed consent.” The law does not apply to our case because of the date in which it came into force, but it nonetheless indicates the legislative tendency. Section 3(b) of the law provides that “in order to obtain informed consent, the physician shall give the patient the medical information reasonably required by him in order to decide whether or not to consent to the treatment proposed …”; For this purpose, medical information includes: the nature of the procedure, its purpose, the benefit expected, its risks and prospects, and alternative treatments, all as specified in the law.

Appellant’s case does not require discussion of the question of the scope of the duty imposed on the doctor regarding receipt of the patient’s “informed consent.” As a rule, the question is not simple. Generally, where the operation or treatment is not intended to prevent immediate danger and can be postponed without aggravating the situation, enabling the patient to formulate a decision with the relevant information at his or her disposal, the duty of disclosure becomes broader. Naturally, the degree of risk entailed by the treatment is also relevant to the duty of disclosure, and clearly there are exceptions which exempt the doctor from giving full and detailed information in certain extraordinary cases. For example, emergency cases that require urgent treatment, or cases in which the expected danger is negligible when contrasted with the treatment’s benefit, or when the patient’s condition is such that the disclosure itself may be harmful to him or her. These exceptions now find statutory expression in the Patient’s Rights Law, but, as stated, they are not relevant to the case at hand. See CA 470/87 Alturi v. State of Israel-Ministry of Health [4].

The question of whether a duty of care should be established according to the criteria of the reasonable doctor or the expectations of the reasonable patient was deliberated extensively by courts in different countries, but it does not relate to this appeal. Standard hospital practice for orderly signing of a consent form for operation, after explanation of the prospects, risks and alternatives, expresses accepted law regarding “informed consent.” The duty of giving the information necessary to obtain informed consent to an operation is a duty imposed upon the doctor and owed to the patient; its violation constitutes a breach of the duty of care, and it therefore constitutes negligence. Hence, a doctor is obliged to provide the patient with the information reasonably necessary for the patient to adopt a decision regarding his or her consent or non-consent to an operation or medical treatment.

In our case, given that the doctors deviated from what was considered by Respondent 1 to be accepted practice, we need not examine the broad question concerning the scope of doctor’s duty to give information to the patient. The director of the Orthopedics department in Respondent 1 during the relevant period was Dr. Shweppe. He testified that prior to every operation, it was customary to assemble the entire medical staff and have them meet with the patient, to discuss the case and the anticipated treatment. Dr. Shweppe did not recall whether there had been such a consultation in the appellant’s case, but the trial judge saw no reason to assume any deviation from the practice in this particular case. [But in fact – trans.], absent any medical records, it was for the respondents to discharge the burden of showing that such a consultation was actually conducted. CA 58/82 Kantor v. Moseib [5] at 259; CA 5049/91 Histadrut Klalit Health Fund v. Rachman v. Rachman [6] at 376. The doctors were unable to recall whether there had been such a consultation. Appellant testified that such consultations had been conducted prior to her previous operations in the hospital, but not prior to the operation on her shoulder. Dr. Antol’s memorandum in the patient’s chart from the operation day, together with his court testimony on the matter, support the conclusion that the need for a shoulder operation became clear immediately prior to the operation itself, and that the appellant was informed of the need in the circumstances described above, without any prior consultation. Moreover, the operation itself involved inherent dangers, as demonstrated by the fact that the appellant was harmed, even if negligence was not proven regarding the actual performance of the operation and the post-surgical treatment given to Appellant. The existence of this kind of danger clearly explains the duty of complete disclosure to the patient prior to the treatment.

Under those circumstances, the doctors were duty bound to apprise the appellant of the nature and the gravity of their fear that a tumor had developed in her shoulder. They should have explained to her whether there was a real suspicion of a tumor. They should have apprised her of the operation’s importance and its urgency. They also should have explained to the appellant that there was a chance that the treatment would cause paralysis.

Having the appellant sign the consent form for the operation at such an advanced stage, as described above, is not accepted practice, and it certainly is not the practice which should be accepted and practiced by doctors for obtaining consent. The possibility intimated to her by the treating doctor in the Health Fund, two months before her hospitalization, that she might require a biopsy, does not constitute a full disclosure of information which is required for the patient in order to adopt a decision and give informed consent to the conduct of such an operation. See CC (PAPP) 88/84 Assa v. Histadrut Health Fund [42].

All of the above indicates that Appellant’s doctors violated their duty to fully apprise Appellant of the biopsy operation that she was about to undergo, and it was not proven that, under the circumstances, they were exempt from fulfilling their duty as stated. As such, it can be determined that Appellant’s doctors violated a duty which is part of the duty of care incumbent upon them as doctors providing medical treatment, and in so doing – they were negligent.

The Causal Connection to the Damage

8. The holding that respondents were negligent in the disclosure of information to the appellant and in the manner in which they obtained her consent to the operation compels an examination of the causal connection between respondents’ negligence and the damage caused. The trial judge rejected the appellant’s blanket claim that she had no advance knowledge of the shoulder operation and did not consent to it; accordingly, he was not prepared to address her alternative claim regarding the absence of complete information. Even so, the trial judge ruled that:

Even under the assumption (which I do not share) that the plaintiff did not receive complete information prior to the biopsy, I still have no evidence before me that the damage caused to the plaintiff’s shoulder resulted from the violation of Defendant 2’s obligation to provide all the relevant information to the plaintiff … I received no evidence that under these or any under conditions the plaintiff would not have consented to the performance of the biopsy. There was no proof of a causal connection between the damage that was caused and the doctors’ alleged violation of their duty.

The question is: What issue should be examined by the court when assessing the causal connection, in order to determine the existence of the tort of negligence in cases of absence of “informed consent?”

The question of the causal connection when the damage is not the result of negligent treatment but rather due to the absence of sufficient information for there to have been “informed consent” of the patient is a complex question. Having recognized that this kind of negligent behavior on the doctor’s part is a possible cause of damage, the question is therefore whether or not the patient would have willingly accepted the treatment proposed had the patient been fully informed.

Usually in this kind of negligence action, the patient wants compensation for the direct damage caused by the treatment. The damage in the case of absence of “informed consent” is not caused as a result of negligent treatment. It is rather the result of the bare fact of medical intervention, even if it was not done negligently. Under these circumstances, the causal connection is assessed on the basis of the degree of damage to the autonomous will of the patient and the negation of the patient’s capacity and ability to prevent the treatment given to him or her. In other words, there must be an assessment of the possibility that the patient would have prevented the treatment had he or she been given the information.

9. States that recognized the grounds of “informed consent” as the breach of a duty that creates the tort of negligence have deliberated the manner of proving the causal connection regarding the damage due to the necessity of retroactively assessing a hypothetical occurrence. See Arndt v. Smith (1995) [68] (in Canada); Salis v. United States (1981) [45] (in the United States).

In Israel, in a similar case in which the patient did not receive complete details regarding alternative treatments, Justice Mazza wrote the following:

The causal connection for our purposes does not require a holding in accordance with the accepted causality tests … these tests, which are intended to enable decisions in accordance with the probability indices, are not appropriate for cases in which the court must make a hypothetical assessment of the particular patient’s response had the doctors given him or her details in advance regarding the risks and prospects of a particular medical treatment.

Vaturi [3] at 191.

In that case, the court concluded that when proving the existence of a causal connection requires resolution of the theoretical question of “what would the patient have decided had he or she been given the complete information,” it is not enough to find that an analysis of the probabilities [i.e. more likely than not – ed.] has failed to show that the patient would have chosen not to receive the treatment. According to that approach, while there is no justification for awarding the injured party full compensation for damages absent sufficient proof of the causal connection, it would be wrong to deny any compensation just because the negligent action of the tortfeasor prevented the patient from proving that the negligence caused his or her damages. Accordingly, the holding in that judgment was that in such a case, an assessment is made of the chance that proper disclosure of the information would have caused the patient to refuse the treatment. The degree of damage owed by the tortfeasor will be determined in accordance with the assessment of the likelihood of refusal.

The proof of the causal connection to the damage in circumstances of failure to disclose details regarding medical treatment is complex and raises a number of problems. Legal scholars have disputed the question of whether to adopt the path of an assessment of likelihood in a case of a hypothetical question concerning “informed consent.” See Shultz’s article, supra [94] at 286-87 and Giesen’s book, supra [86] at 354-55, both of which endorse the view of assessment of likelihood.

As opposed to the approach of these scholars, the Court has a practical concern regarding the possibility of substantiating a claim in tort with the possibility of compensation, when the causal connection has not been proven at the level of proof normally accepted in a civil trial. The concern is that such a possibility will open the floodgates in other areas too, and thereby lead to a glut of claims and the imposition of an untenable burden on the medical system and on the legal system too. See Kramer v. Lewisville Memorial Hosp. (1993) [46] at 406; Falcon v. Memorial Hosp. at 64-68.

Personally, my view is that there must be a distinction between proof of negligence in regular negligence cases and proof of negligence when negligence consists of the failure to give informed consent to the treatment. Due to its special character, negligence in the latter category should be determined as a function of the degree of chance, and not in accordance with the balance of probability, provided that this rule is qualified and does not confer entitlement to compensation except in those cases in which it can be determined that there is a significant chance that the patient would not have consented to the treatment.

10. In the case before us, I gave considerable thought to the question of whether a causal connection had been proven between the negligence of the doctors and the hospital in receiving the appellant’s consent to the conduct of the examination and the damage that was caused to her. I also examined the possibility of resolving the question of the causal connection in accordance with the method mentioned above, of assessing the likelihood of refusal and not in accordance with the probability balance. After much consideration, I arrived at the conclusion that in present circumstances, I need not decide the question of whether the assessment of likelihood should be established as the proper test for the causal connection in cases of the absence of informed consent. My reason is that the respondents’ responsibility for Appellant’s damages was proven even in accordance with regular evidentiary tests of balance of probability.

As stated above, the test regarding the existence of a causal connection in a negligence claim occasioned by failure to receive informed consent is, whether the patient would have consented to the treatment had he or she been informed of all the relevant facts. This test is conducted according to the criterion of the reasonable patient under similar circumstances.

We use an objective test of the reasonable patient in order to try to establish the truth regarding the particular patient. Clearly, there is a tremendous practical difficulty in ascertaining the position of the patient at the relevant time, because the question arises only retroactively, at a time when the patient is suffering from the results of the treatment. In numerous judgments, the courts have noted that it is inhuman to expect a person suffering from treatment received to give credible testimony about what he or she would have done at the time of adopting the decision, had he or she been aware of all its possible consequences.

In any event, this difficulty was one of the central considerations that led courts in the United States and Canada to prefer the objective test, adapted to the circumstances, as the criterion for establishing the causal connection. See Canterbury v. Spense [48] at 791; Arndt v. Smith (1997) [69].

Accordingly, the courts that adopted this criterion also ruled that the injured patient’s testimony should not be accorded conclusive weight, even though it is relevant evidence which helps clarify the truth. See Hartke v. McKelway [49] at 1551; Sard v. Hardy [50] at 1026; Bernard v. Char [51] at 670.

In order to determine the probability of whether the patient would have refused the treatment, the court must consider the type of treatment received by the patient and its degree of urgency as opposed to its risks. Within these parameters, it ascertains the patient’s probable response according to the criterion of the reasonable patient in similar circumstances. According to this criterion, a causal connection can be established between the failure to disclose information in violation of the duty of caution and the damage actually caused by the treatment. This objective test does not obviate the need for an assessment relating to the particular patient who has come before the court. The court assesses the degree of damage to the patient’s ability to exercise judgment against the background of the conditions and the manner in which the patient received the information and the entirety of data and circumstances relating to the patient’s physical and mental condition. Against that background, the court makes a judicial assessment, estimating how the patient might have acted were it not for defendants’ violation of their duty. The Canadian court gave the following explanation of the objective test as it relates to the subjective circumstances of the injured patient:

I think it is the safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. The failure of proper disclosure pro and con becomes therefore very material. And so too are any special considerations affecting the particular patient.

...

The adoption of an objective standard does not mean that the issue of causation is completely in the hands of the surgeon. Merely because medical evidence establishes the reasonableness of a recommended operation does not mean that a reasonable person in the patient’s position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced by those against it. The patient’s particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force, on an objective appraisal, of the surgeon’s recommendation.” Reibl [67] at 16 (Leskin, J.).

This test was cited approvingly by the Canadian Supreme Court in its a recent judgment. Arndt [69].

11. The lower court totally rejected the appellant’s account regarding her surprise upon discovering that it was her shoulder and not leg that was operated upon, because it assumed that her prior knowledge regarding the necessity of the operation sufficed to negate the defect in the manner of receiving her consent. Having said that, under the circumstances, the previous information was not sufficient to receive the required consent to the treatment given to her, and in the absence of any proof of prior consultation and transmission of information concerning the nature of the treatment and its attendant risks, it was for the court to ascertain how the appellant would have behaved had she received the necessary information under appropriate conditions.

I considered whether the appellant’s case should be returned to the lower court, in order for it to deal with the existence of the causal connection and to assess the probability of the appellant’s refusal to the operation, had she had all the information. However, I have reached the conclusion that on the basis of the evidence presented by the parties, and in consideration of all the facts before us, it can be determined that the causal connection between the non-disclosure and the damage has been proven.

Respondents did not adduce evidence to substantiate the alleged conclusion that the anticipated risk of the operation was negligible and did not necessitate prior notification to the appellant of its nature. Assuming that the appellant was treated professionally and not negligently, and that the treatment given after the operation was proper, the necessary conclusion is that the disability caused to the appellant was a risk that was endemic to the treatment given to her. In any event, having claimed that the risk of the treatment they gave was not negligent, the respondents bear the burden of proving that the operation was urgent, and that the anticipated danger to the appellant as a result of the operation itself was negligible to a degree that it would not have affected the appellant’s decision had she been informed of it.

As stated, such evidence was not submitted. In the special circumstances of this case, there is sufficient grounds for the assumption that a reasonable patient would have preferred to conduct an additional consultation with an expert regarding the need for the examination, in view of its endemic danger, given that the examination itself had previously been postponed, and in view of the fact that, as it became clear in retrospect, the operation was of doubtful necessity.

I am prepared to assume that in an ordinary case in which the examination was intended to ascertain whether a growth had developed, a reasonable patient would have adopted a different approach, especially if there was urgency in early discovery, and absent any alternative method of clarifying the matter.

However, the appellant’s case is a special one. She was hospitalized in order to rectify a deformity in her leg, which was the result of a birth defect. Under these circumstances, one may assume that as a woman who was disabled from birth, she would have been particularly wary of the endangering the functioning of her right arm, had she been aware of such a danger.

Furthermore, the concern leading to the operation was apparently, from the outset, not regarded as being of any particular urgency. The appellant waited for the operation for more than two months, and a date for the operation was not actually set until her hospitalization. In their affidavits for the District Court, which were found to be credible, Respondent 1’s doctors described the suspicion that led to the decision to perform a biopsy. Dr. Schweppy’s affidavit states that “we decided that the results of the rentogen and the bone scan indicated pathological problems, and that in order to obtain a totally clear picture, there was a need for a biopsy, because there was no definitive diagnosis.” The treating doctor, Sharvit, stated that “the findings provide concern of the existence of a growth … when I determined in the Lin clinic that there is a suspicion of growth of cartilage.”

These comments, viewed together with the other evidence, indicate that the decision to perform a biopsy was not based on an urgent need for an immediate diagnosis.

Considering the degree of negligence involved in the non-disclosure of the information, the way in which the appellant’s consent to the operation was obtained, and the particular circumstances of her case, it can be determined that if the appellant had been aware of all the relevant details regarding the nature of the examination and the risks involved, she would not have agreed to the examination at the date and in the manner that it was performed. For this reason, I conclude that there was proof of the causal connection between the non-disclosure of complete information and the damage caused to the appellant from the treatment she received.

12. After writing my judgment, I had the chance to review the comprehensive judgment of my colleague, Justice Or, and I will add my comments regarding its proposed method of compensation.

I wholeheartedly concur with the credo expressed by my colleague regarding the importance of the individual’s right to autonomy. I think that in principle there ought to be recognition of the possibility of compensation for the violation of that right, though not necessarily in the context of the doctrine of “informed consent.” It appears to be desirable to extend the right of separate compensation for violation of individual autonomy to cases in which a patient was denied the right to decide whether medical treatment would be administered. Still, in the context of non-disclosure of information regarding medical treatment, difficult questions arise when assessing the appropriateness of compensation for this kind of damage, independent of the treatment’s results.

13. The critique of the approach allowing compensation for violation of autonomy in the context of non-disclosure of information, irrespective of the consequences of the medical treatment, has two focuses. The first focus is analytic, concerning the essence of the doctrine of informed consent. The second focus concerns appropriate judicial policy.

Analytically, the doctrine of informed consent is based on the special status granted to the violation of individual autonomy, to the extent that under certain circumstances, such a violation is equivalent to medical negligence, in the sense that it entitles the victim to full compensation for all the consequences of the medical treatment.

When we chose the path of the tort of negligence, we ruled that in cases of failure to disclose information that is relevant and significant about the possible results of the treatment, the doctor’s breach of his or her duty to the patient consists of the fact of non-disclosure. The theory of negligence based on non-disclosure of sufficient information to the patient is based on a number of things, one of the most central being the violation of individual autonomy. Remedy for a violation of that kind will be protected even when it is not specified separately as an aspect of the damage. The various components of the “informed consent” doctrine were summed up as follows by the learned P.H. Shuck:

[I]nformed consent does not simply pursue the contract law goals of individual autonomy, efficiency, and anti-statism; it also advances two related ideas, fault and duty, that pervade and moralize tort law.

Rethinking Informed Consent [95] at 902.

According to supporters of the doctrine of “informed consent”, medical negligence in the disclosure of information justifies compensating the patient for the treatment’s consequences. The assumption is that in principle it is possible to prove the causal connection between the failure to give information and the treatment’s consequences. Legal literature indicates that as a rule, those favoring the compensatory approach for violation of individual autonomy in the context of non-disclosure of medical information are also of the view that in principle there is no recognition of the causal connection between negligence in the disclosure of information and the consequences of the treatment; from their perspective, compensation awarded for violation of autonomy is a substitute for the doctrine of informed consent. As such, it seems that the opinion stating that in the absence of informed consent, compensation can be granted for the violation of individual autonomy, regardless of the consequences of the medical treatment, is consistent with the view of those who dispute the doctrine of informed consent as a part of medical negligence. See Prof. Englard’s book [83] at 607; A.D. Twerski, N.B. Cohen, Informed Decision Making and The Law of Torts: The Myth of Justiciable Causation [96].

Needless to say, the most “blatant” cases of violation of autonomy in medical treatment (for example when the medical treatment is given without the patient having given any consent at all, or where there was absolutely no disclosure of the inevitable result of the treatment) are treated by tort law under the tort of battery. In these extreme cases of non-consent, compensation will be given for the damage in its entirety, even without proof of the causal connection.

The distinction between a blatant violation of autonomy, addressed via the tort of battery, and non-disclosure as a part of medical negligence was dealt with by the Australian Supreme Court in its judgment in Rogers v. Whitaker (1992) [43]. In that judgment, the court distinguished the right to autonomy which is protected by the tort of battery from negligence in giving information, which requires a balance between the duty of the treating doctor and the patient’s right to receive the relevant information:

The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure.

Id. at 52.

 The Canadian Supreme Court recently criticized the view that gives the patients’ right to decide an independent and separate status from the subject of medical negligence being discussed here:

The suggestion that loss of choice as such merits compensation is related to the suggestion that failure to advise of risk of medical intervention negates the patient’s consent, making the physician’s intervention - tortious battery. This Court unanimously rejected this approach in Reibl v. Hughes.

Arndt [69] at 62 (McLachlin, J.).

In this context, one can also mention the judgment in Vaturi, which emphasizes the complex connection between the duty of the doctor giving medical treatment and patient autonomy. Id. at 181-82.

14. In terms of appropriate judicial policy, I think that when dealing with the question of “informed consent,” though my colleague’s approach is intended to enhance the right to individual autonomy, paradoxically, his approach weakens it. The fear is that this approach will lead to a limitation of the compensation given to the victim of a treatment administered without giving him or her information, and it may even encourage the courts to avoid dealing with the complex question of the causal connection between failure to receive “informed consent” of the patient and the results of the treatment he received. This possibility was raised by Cohen and Twersky in their article in support of the separate claim of damage for the violation of autonomy. Twersky & Cohen [96] at 648.

In considering whether to adopt an approach that makes do with compensation for violation of autonomy, I think that the fear of the victim’s compensation being limited to nominal compensation outweighs the benefit of enhancing the autonomy of the individual. On the other hand, full acceptance of my colleague’s approach allows compensation even in cases in which the treatment was successful and the patient satisfied, if it becomes clear that the patient was not initially presented with full details regarding the treatment. It is doubtful whether this result is desirable.

It should be noted that other legal systems similar to our own have not accepted the rule that compensation can be granted by reason of violation of autonomy in the context of non-disclosure of information, regardless of the results of the medical treatment. I was unable to find a single judgment in which the courts awarded compensation exclusively for violation of autonomy, as distinct from compensation awarded for damage caused as a result of the treatment.

It should be emphasized here that a distinction must be made between compensation for violation of autonomy and compensation for shock or mental trauma upon becoming aware of the grave consequences of unexpected treatment, a distinction made in both of the judgments cited in my colleague’s opinion. See Goorkani v. Tayside Health Board (1991) [66]; Smith v. Barking Havering & Brentwood Health Authority (1989) [56].

These judgments are in accordance with the English approach to liability in the absence of “informed consent.” As indicated above, the position of English law on the subject of “informed consent” differs from that of other common law countries, and English law has yet to confer it with the same scope as it has in the United States and Canada. See I. Kennedy, A Grubb, Medical Law [87] at 172-202; R. Nelson-Jones, F. Burton, Medical Negligence Case Law [88] at 102.

15. Furthermore, recognition of the violation of individual autonomy as an individual claim of damage, while commendable, is still in its “infancy,” and its definition and the way it will be formulated still need to be developed. While tort law grants compensation for non-pecuniary damage, the proposed claim of damage still lacks precise and clear criteria for its application. Moreover, I find it difficult to accept the analogy proposed by my colleague, namely compensation for violation of constitutional rights. For it is unclear whether the damage for a constitutional tort is evaluated according to the criteria of the tort of negligence. This is a complex question which merits a separate discussion. See D. Barak-Erez, Avlot Chukatiot [Constitutional Torts] [73] at 243 and subsequent text. See also Memphis Community School Dist. v. Stachura [57] at 2544 – 45.

16. To conclude: It seems that these problems necessitate particular caution when assessing the cases in which compensation may be made for violation of autonomy as an independent tort and whether it should be done in cases of negligent non-disclosure of medical information. We must decide when and according to which criteria the damage will be assessed. In principle, I think that the introduction of this new claim of damage should initially be assessed in the framework of cases in which there was a blatant violation of human dignity and individual autonomy, where that kind of violation constitutes the main focus of the damage. On the other hand, matters that can be classified as medical negligence should generally be assessed within the context of results of the treatment.

 

In any event, compensation for violation of individual autonomy should not be allowed to undermine the doctrine of informed consent. Accordingly, in my view, compensation for violation of autonomy should only be awarded in rare cases, which I have not deemed it appropriate to define at this stage.

17. In light of my conclusion, were my opinion to win a majority, I would propose that the appeal be accepted and the case returned to the District Court for it to hear evidence regarding the damage caused to the appellant, so that the court can assess the level of compensation for that damage.

Justice T. Or

1. Unfortunately, I cannot concur with the conclusion of my colleague, Justice Beinisch. I will clarify my position below.

2. I accept that the discussion in the district court proceeded on the assumption that the respondents or doctors in their employ were found to be tortuously liable for the tort of negligence and not the tort of assault. Negligence is therefore the only ground we must decide in this appeal.

Within this framework, those responsible for providing medical treatment are obliged to compensate the patient for all bodily damage sustained as a result of the breach of their duty to receive his or her full consent to treatment. In my view, those responsible for giving medical treatment must also compensate the patient for all non-pecuniary damage sustained as a result of the violation of the patient’s right to autonomy, if the medical treatment is administered to the patient without his or her informed consent. The first part of my opinion discusses the respondents’ obligation to compensate the appellant for her bodily damage. My conclusion, which I will explain shortly, is that there was no proof of the required causal connection between the failure to receive the appellant’s informed consent and the bodily damage that she sustained. In the second part of my judgment, I will discuss the obligation to compensate a patient – in our case, the appellant – for non-physical damage sustained due to the violation of patient autonomy in giving medical treatment without the patient’s informed consent. I will first deal with the factual background and then discuss the above-mentioned questions.

The Principle Facts and the Dispute

3. I accept the conclusion reached both my colleague, Justice Beinisch, and the District Court that there was no proof of negligence in the actual decision to perform a biopsy on the appellant’s shoulder, the manner in which the biopsy was performed, or the appellant’s post-operation treatment to address its consequences. These conclusions are well grounded in the District Court’s findings, which were based on evidence that it found reliable. As my colleague explained, there are no grounds for our intervention in these findings.

The claim against the respondents’ doctors therefore focuses on their failure to inform the appellant of the risks and the prospects of the biopsy (hereinafter: the biopsy), creating a situation in which the appellant cannot be regarded as having given her “informed consent” to the biopsy. Here, too, I concur with my colleague that this constituted negligence in the way the doctors who treated her received her consent to the biopsy. However, before doing so, I must stress that, under the circumstances, the biopsy was a medical necessity which any reasonable doctor would have performed.

4. The principle facts regarding the biopsy are as detailed below:

(a)   As the trial court determined:

Around the middle of 1987, plaintiff began suffering from constant pain in the right shoulder, by day and by night. When systematic treatment was to no avail, rentogen photos were taken, followed by a bone-mapping. The latter test indicated ‘a diffuse absorption’ – which is a pathological finding. According to Dr. Eric Sharvit, the orthopedic specialist who treated the plaintiff in Defendant 2’s clinic: “I observed an irregularity in the diffuse absorption, cysts and unremitting pains; diffuse absorption is a pathological finding. No absorption can ever be normal. In mapping, the reason always shows up. It may be cancer, an undiagnosed fracture, or an infection. It may also be a growth…. There was something suspicious that required further clarification.

And further on:

According to Dr Eli Sharvit’s affidavit of April 22, 1991, he examined the plaintiff’s right shoulder on the dates September 8, 1987, October 20, 1987, and November 27, 1987. Sharvit stated that at the end of the examination of November 27, 1987, in the framework of the consultation group, and after everybody had seen her and examined her file, it was unanimously agreed that a biopsy was necessary (emphasis added – T.O.).

As Dr. Sharvit clarified in his testimony, “there was a concern about a destructive process which would be irreversible.” He went on to say that:

[T]here was no explanation for the absorption evidenced by the bone mapping, and a biopsy was therefore required in order to reach a clear diagnosis.

In addition to the above, the district court accepted Dr. Sharvit’s account of events in paragraph 8 of his affidavit:

In other words, I spoke with the plaintiff and, regarding her shoulder, I explained that she would have to have an operation in order to identify the problem, because the findings provided grounds for suspicion of a growth, and an operation was the only way of clarifying the matter. We had this conversation on October 20, 1997, when I determined that there was a suspected growth of cartilage.

The court also referred to the testimony of Dr. Schweppy, affirming it:

The head of the Orthopedic Department in Carmel Hospital at the time of plaintiff’s hospitalization of the plaintiff was Dr. Yitzhak Isadore Schweppy. Dr. Schweppy testified in court that the bone mapping indicated “an aggravated diffusive absorption near the humerus” and that the technician conducting the bone mapping had written (September 1, 1987) “Nature of absorption unclear. Recommend further examination.” According to Schweppy, “the photograph indicates a pathological finding and the mapping also shows these signs. The mapping states that there is no unequivocal finding. All of this, in my opinion, necessitates a biopsy.

In view of all this, and since appellant’s expert, Prof. Stein, did not explicitly contest the need for a biopsy, the court concluded that it was medically necessary to perform it, and there are no grounds for our intervention in this finding. 

(c) Appellant maintained that she had never had problems with her shoulder, that she had never made any complaints in that regard, and that the entire issue of the biopsy came as a total surprise to her. Her version was rejected by the district court in view of the trust it placed in Dr. Sharvit. Relying on examinations performed on the appellant – a photograph of shoulder and mapping of shoulder – the court rightfully concluded that appellant had suffered from shoulder pains and that she was well aware of the “problem” she had with her shoulder.

(d) The court further noted that the appellant almost admitted to having been spoken to regarding the shoulder, prior to the biopsy. It was apparently referring to the following paragraph in her testimony, in which she said:

Prior to the anesthetic I asked why the operation was on the arm and not on the leg. After they performed the operation I asked them.

Para.12.

In this paragraph she had a slip of tongue, indicating that already prior to the operation she asked “why the operation was on the arm.” In other words, she was aware that they were about to operate upon her shoulder. Even so, she immediately “corrected” herself.

At all events, as stated, the entirety of the evidence indicates that the performance of the biopsy was required, as customary in similar cases, to rule out the serious suspicion of it being a cancerous growth.

5. In her judgment, Justice Beinisch explains why the conduct of the operating doctor should be regarded as negligent. I accept that regardless of appellant’s general awareness of the need for such an operation, the doctor failed to discharge his duty to explain to the appellant the importance of the operation and its necessity as opposed to its risks, in order to ensure that the appellant’s consent would indeed be “informed consent.” Prior to the operation there may indeed have been a period of time during which appellant knew that she was about to undergo a biopsy. Nonetheless, the circumstances in which her consent was obtained indicate that she did not give her informed consent. The appellant was initially summoned to the operating room for an operation on her leg. While she was in the operating room, immediately prior to the operation, it was clarified to her that they intended to perform a biopsy on her shoulder, without making the associated risks clear to her, as required. I therefore accept my colleague’s conclusion that there was negligence on the part of the treating doctors in their performance of the biopsy without giving the required explanation of its risks.

The district court determined that appellant had given her “informed consent” to the biopsy. It reached this conclusion in reliance, inter alia, on the conversation between Dr. Sharvit and appellant in October 1987, about two and a half months before the biopsy. However, the contents of that conversation do not substantiate the court’s conclusion. Even if we accept the court’s reliance on Dr. Sharvit’s testimony, his comments to the appellant regarding the need to perform a biopsy did not constitute an explanation of the risks and prospects of the biopsy as required from a doctor about to perform an operation on a patient. Dr Sharvit’s general comments to the appellant were made when she was already on the operating table, awaiting a different operation for which she had been prepared. Clearly, this could not satisfy the requirement of receiving informed consent, as explained by my colleague in her judgment.

So far, I have traversed a long way along the path leading to my colleague’s conclusions. Nonetheless, in one matter I cannot concur with her conclusion. I refer to the proof of the causal connection between the doctors’ negligence and the bodily damage suffered by the appellant as a result of the biopsy. I do not believe that there was proof of a causal connection between the doctors’ negligence and the bodily damage suffered by the appellant as a result of the biopsy. Consequently, my conclusion is that appellant is not entitled to compensation for this damage. On the other hand, it is my view that those responsible for the appellant’s treatment must compensate her for the violation of her right to dignity and autonomy, which flows from the doctors’ negligence. I will first discuss the question of the causal connection between negligence and the bodily damage.

Appellant’s Right to Compensation for Bodily Damage Caused As a Result of the Biopsy – the Causal Connection

6. Where a plaintiff bases a claim on the grounds of medical negligence, he or she bears the burden of proving, inter alia, a causal connection between the doctors’ negligence and the alleged damage, namely that the negligence caused the damage – that but for the negligence, there would have been no damage. This is the rule for all claims grounded in negligence, including claims in which the tort is imputed to the doctor for negligence in failing to discharge his or her duty of disclosure to the patient prior to receiving consent for treatment. See CA 4384/90 [3]; CA 4341/94 Berman (Minor) v. Moore Institute for Medical Information Ltd [7]; see also Shapira [77] at 236. Consequently, it was incumbent upon the appellant to prove that had she received the requisite explanation regarding the biopsy – the importance of the biopsy, compared to its risks – she would not have given her consent to its performance. Should it transpire, however, that even after such an explanation, the appellant would still have agreed to perform the biopsy, it can no longer be said that it was the doctor’s failure to receive her “informed consent” that actually caused the damage that occurred as a result of the biopsy. In other words, in such a case, one cannot say that it was the absence of such consent that caused the damage.

The question is: what would have happened had the appellant actually received all the requisite and relevant explanations regarding the operation and then been asked to give her consent to the biopsy? Upon receiving the information, would she have refused to undergo the biopsy, which would have prevented the damage caused to her by its performance? The answer is not clear:

There are considerable difficulties in responding to the hypothetical causal question of what would have happened if they had conducted themselves in accordance with the law. The response is necessarily dependent on guesses and conjecture, especially with respect to the question relating to hypothetical human responses.

I. Englard, Yesodot Haachraut Benezikin, Dinei Nezikin – Torat Hanezikin Haclallit [74] at 230-39.

The kind of matter being dealt with here poses a particular difficulty: determining whether a patient would have agreed to the operation had he or she possessed all the relevant facts prior to giving consent. In his book, The Philosophy of Tort Law, Englard deals with the question in all its complexity, especially in view of the fact that these cases are not normally decided exclusively by logical considerations. See Id, Informed Consent: The Problem of Autonomy and Compensation in [74] at 166-67; see also CA 4384/90 [3].

Considering the difficulty in answering that question, the Court’s response must be based on the evidence submitted and considerations of common sense and life experience.

7. The case before us also raises the issue of whether the answer to the question presented above should be given according to a subjective criterion, namely, how would the appellant before us have reacted, or alternatively, according to an objective criterion. In other words, how would a reasonable patient have conducted himself or herself in a similar situation. Another possibility is the mixed criterion: how would a reasonable patient in the appellant’s position have behaved.

Even though my tendency is towards the subjective criterion, with the objective criterion serving as an auxiliary tool in its application, we need not resolve the issue in this case. The reason is that in my view, under the circumstances of this case, both the subjective and the objective criterion lead to the same unavoidable conclusion. It may be presumed, with an extremely high degree of certainty, that the patient would have actually consented to the biopsy even if all the facts that were relevant for receiving her consent had been presented to her. In my view, the possibility or the chances that she would not have agreed to it are particularly low, if not altogether negligible.

8. In her testimony, Appellant did not address the question of whether she would have agreed to a biopsy had she received an explanation of its urgency, its dangers and its prospects. In court, she categorically denied any conversations with her doctors regarding her shoulder. She even denied ever having complained about pains in her shoulder. The court rightly rejected this testimony, considering the proven facts: Appellant had been asked to undergo examinations which included an x-ray of her shoulder as well as a bone mapping, and these were in fact conducted.

However, even though she denied that the subject of her shoulder and the need for the biopsy were raised at any stage, nothing prevented her from addressing the hypothetical question of her consent to a biopsy. Appellant was given the opportunity to explain whether or not she would have agreed and her reasons for either decision. Had she utilized the opportunity and explained her stance, the court would have subsequently examined the credibility of her position and reasons, as well as their reasonability. The appellant was silent on this point, even though her particular considerations for not assenting to a biopsy, if she had them, were known only to her.

And so, on this point, the district court correctly said that: “We have no evidence that in these or other circumstances, the plaintiff would not have agreed to the biopsy.”

9. The court cannot speak in the place of the appellant, who was silent on this matter in her testimony. What the court can do is examine the entire complex of circumstances, even without her testimony, and ask whether it indicates that the appellant, as a reasonable person, would have refused the biopsy, had she received an explanation of its need as opposed to its inherent risks. One must assess the likelihood that disclosure of the requisite information would have led the patient to oppose the performance of a biopsy. In deciding this question, the court must consider the type of treatment that the patient received and the degree of its urgency compared with the risks involved and assess the probable response of the patient according to the criterion of how a reasonable patient would have responded in similar circumstances.

This assessment must relate to the time at which the appellant’s agreement was required, in other words, prior to the biopsy, after being presented with all the relevant data and being asked to decide whether or not she agreed to the operation. Clearly, the answer cannot be based on wisdom after the fact, when it was already clear that the concern regarding a cancerous growth had evaporated and that she had been injured as a result of the operation.

10. The circumstances preceding the biopsy were as follows:

(a) Appellant had complained of severe pains in her shoulder, which lead to the conduct of various examinations. The examinations included an x-ray of her shoulder and bone mapping. These two examinations justified further clarifications, due to the possibility of there being a cancerous growth.

As evidenced by experts’ testimony, which the court relied upon, additional clarification was to have been conducted by way of a biopsy. In their examinations, the experts were not presented with any proposition to the effect that there were other means for conducting that clarification, means that would have posed less risk than a biopsy, which entailed surgical intervention. Nor was the court presented with any evidence from which it could deduce that a biopsy was not the only reasonable measure to confirm or negate the existence of a cancerous growth on the appellant’s shoulder. The circumstances as they were presented to the court indicated the clear necessity of the operation, and any person who cared about his or her health would have given consent, in the absence of extreme unusual circumstances that would have dissuaded the patient from consenting. There was no evidence of such circumstances in this case.

(b) All surgical interventions involve certain dangers. Unfortunately, one of those became reality in the appellant’s case. Even so, it is commonplace that the mere existence of an element of danger does not prevent operations or the performance of examinations which are medically necessary. It must be stressed that in our case, no evidence was submitted of any particular risks, beyond the ordinary risks attendant to any surgical intervention, which are involved in the performance of a biopsy. By itself, the fact that the appellant was injured as a result of the operation provides no indication about the nature of the risks that are part of the biopsy performed on the appellant.

(c) My colleague, Justice Beinisch, suggested that had appellant been apprised of the need for the biopsy as opposed to the risks entitled therein, then presumably, like any other any reasonable patient, she would have preferred to receive a second opinion regarding the need for the examination. I do not accept this presumption. As early as October 1987, it had been explained to the appellant that an operation would be necessary in order to examine the problem. Sec. A of Dr. Sharvit’s affidavit. Appellant denied that the meeting with Dr. Sharvit ever took place, and we heard nothing from her to indicate that she would have consulted with an additional expert had the need for a biopsy arisen. In this context, I will mention that Appellant had long been in the treatment of doctors in respondents’ orthopedic department, and she would naturally trust them. The same doctors had both recommended and performed other operations on the appellant without her having consulted an additional expert. Furthermore, in view of the proven need to perform a biopsy, it is reasonable to assume that any additional expert would have recommended the same examination. These facts help us understand the testimony of the respondents’ experts, upon which the district court saw fit to rely.

11. On the basis of these data, in my opinion, not only was there no proof that Appellant would not have agreed to the biopsy had she been presented with all the information necessary in order to receive her consent, but the circumstances indicate that she would actually have agreed to it. The examination was required in order to ascertain the existence of a serious risk to her health as a result of a cancerous growth, and Appellant had previously put her trust in the respondents’ doctors; these factors and all the other circumstances, too, point very clearly in this direction. Like any reasonable person, the appellant would have agreed to it.

Admittedly, despite the fact that at the end of November 1987, the medical team of the Orthopedic Department of the hospital determined that there was a need for a biopsy, it was not actually performed until January 7, 1988. Arguably, in view of the clarification required regarding the shoulder, it would have been appropriate to recommend the performance of the biopsy at an earlier date. The question as to why this didn’t happen was not clarified in the district court, because the witnesses were not fully examined on this matter. Even so, when the appellant was brought to undergo the leg operation, the doctors considered the biopsy operation urgent to a degree that gave it priority over the leg operation that the appellant required. This fact indicates a dimension of urgency in the performance of the biopsy.

12. My conclusion that there was no proof of a causal connection between breach of the duty to receive the informed consent of the appellant and the performance of the biopsy is based on considerations similar to those adopted by other courts in the past in rejecting similar claims for compensation for bodily damage in tort actions. I will cite two examples.

In Smith [56], an operation was performed on plaintiff’s spine. The operation involved a risk factor of a 25% chance that three of the plaintiff’s limbs would be paralyzed. Plaintiff was not informed of this risk prior to the operation, and as a result of the operation, she was indeed inflicted with paralysis in three limbs. She subsequently filed suit, demanding compensation for the bodily damage.

Based upon the doctors’ testimonies, the court ruled that the doctors were negligent in their failure to inform the patient of this risk. Even so, the action under this head of damage was rejected because it was determined that a causal connection between the omission of failing to inform about the risk of that damage and the damage that was actually caused had not been proven. The court noted that the evidence presented did not indicate any particular factors that might have influenced the plaintiff’s subjective position regarding the question of whether to receive the treatment or not. As for specific factors regarding the treatment, the court pointed out, inter alia, that failure to treat the patient within a short period of time would have left the plaintiff paralyzed in all the limbs of her body. Furthermore, the danger to which she would have been exposed if the operation had not succeeded would not have been more severe than the danger that she could have expected had she not undergone the operation. On the other hand, had the operation succeeded, it would have postponed the plaintiff’s disability for a significant period of time. The court therefore concluded “unhesitatingly” that there was a strong likelihood that the plaintiff would have agreed to undergo the operation even had she received full information and that it was “in the highest degree unlikely” that the plaintiff would have refused to undergo the operation. Consequently, the court rejected the plaintiff’s claim for compensation based on the bodily damage caused to her.

The court acted similarly in Goorkani [66]. In that case, a man was treated with a particular medicine for an eye disease from which he suffered. Treatment with this medicine for a period exceeding a few months, at the dosages being given to the plaintiff, involved a high risk of infertility. In spite of the ongoing nature of the treatment, which extended for over a year and a half, plaintiff was not informed of the danger. The treatment solved his problem of vision, but the risk of infertility materialized, culminating in a suit for damages compensation.

The court ruled that in failing to give the information, the doctors breached their duty of care to the plaintiff. Nonetheless, his claim for compensation for bodily damage was rejected in the absence of the causal connection between the breach and the stated damage. In its ruling, the court considered the fact that the treatment was given to the plaintiff during his studies, while he was working towards an engineering degree. At that time, his motivation to complete his studies was particularly strong. As such, the problems regarding his vision caused him severe anxiety and even led to emergency hospitalization for treatment of this problem. Considering the fact that at that time of his life, the plaintiff was also experiencing marital problems, the court’s view was that even had he been informed of the danger of infertility, the plaintiff would have taken that risk in order to save his vision. In other words, the path of action chosen by the plaintiff would not have changed, even had the doctors discharged their duty to give him all the relevant information. Plaintiff’s claim was therefore rejected under this head of damage, in the absence of a causal connection between the violation and the damage.

I did not cite these two examples in order to prove that that the conclusion in the two aforementioned cases regarding the absence of a causal connection was the necessary conclusion in those cases. I cited them only in order to illustrate that when negligence is proven regarding the failure to receive informed consent for the operation, the court will not be afraid to determine, on the basis of the facts of the case, that there was no causal connection between the negligence in not receiving informed consent to the operation and the bodily damage caused by the operation.

13. My conclusion is therefore that the appellant is not entitled to compensation for bodily damage caused to her as a result of the biopsy. In view of this result, I need not express my opinion as to what the result would have been, had it been possible to prove that the balance of probability indicated that Appellant would have refused to receive the treatment had she been aware of all the relevant facts. For example, had it been possible to determine that there was a 30% chance that she would have refused to undergo a biopsy, the question might have arisen as to whether to give monetary expression to the loss of that chance, as a result of the breach of the duty to receive the appellant’s informed consent to the biopsy. It has been argued that in such a case, the appellant should be entitled to compensation calculated as a function of the degree of probability that she would have refused to perform the biopsy. My colleague, Justice Strasberg-Cohen, adopted this position in her opinion in this case, similar to her position in CA 6643/95 Cohen v Histadrut Klalit Health Fund [8] (see also Justice Mazza’s opinion in CA 4384/190 [3]). In the example that I gave, this would mean that appellant would be entitled to compensation equivalent to 30% of the damage caused as a result of the biopsy.

In view of my conclusion regarding the causal connection, under the facts of this case, I will not express my opinion on the question, and it will remain open, pending deliberation and decision in an appropriate case.

14. This completes our discussion of whether or not Appellant is entitled to compensation for bodily damages, but it does not complete my judgment. The additional question requiring resolution is whether compensation should be awarded to the appellant for the non-bodily damage sustained by her due to the violation of her autonomy, deriving from the fact that an operation was performed on her body without her having given her informed consent. I will now examine this question.

IntroductionThe Right to Autonomy

15. The point of departure for this discussion is the basic recognition that every person has a fundamental right to autonomy. Every individual has the right to decide his or her deeds and wishes in accordance with his or her choices, and to act in accordance with those choices. The right to autonomy is, in the language of that definition, “his or her independence, self-alliance and self contained ability to decide.” F. Carnelli, Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion [97], n.4 at 56. In a similar vein, Justice Cheshin stated that: “the law recognizes the autonomy of the individual to formulate his or her will as he or she considers appropriate, for his or her own ‘good’; it is the individual who decides his or her own ‘good’: his or her ‘good’ is his or her will, and his or her will is his or her ‘good.’ A person’s ‘will,’ whether explicit or implied, includes that person’s ‘good.’ A person’s ‘good’ is inseparable from his or her will.” FHC 7015/94 Attorney General v. Anonymous [9] at 95-96. A person’s right to shape his or her life and fate encompasses all the central aspects of his or her life: place of residence, occupation, the people with whom he or she lives, and the content of his or her beliefs. It is a central existential component of the life of every individual in society. It expresses recognition of the value of every individual as a world unto himself or herself. It is essential for the self-determination of every individual, in the sense that the entirety of an individual’s choices constitutes his or her personality and life. See D. Herman, The Basis for the Right of Committed Patients to Refused Psycho-tropic Medication [98].

16. The individual’s right to autonomy is not expressed only in the narrow sense of the ability to choose. It also includes another –physical – dimension of the right to autonomy, relating to a person’s right to be left alone. HCJ 2481/93 Dayan v. Commander of Jerusalem District [10] at 470-72. The import of the right is, inter alia, that every person has freedom from unsolicited non-consensual interference with his of her body. Dworkin made this point when addressing this aspect of individual autonomy:

It is a physical concept rather than an intellectual one. If you touch me or eavesdrop on me, you have injured my autonomy by invading my space. If you actually do something to change my body, you have injured my autonomy by changing the very constitution of what I am.

R.B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age [99] at 733.

17. The recognition of a person’s right to autonomy is a basic component of our legal system, as a legal system in a democratic state. R. Gavison, Esrim Shana Lehilchat Yardor – Hazechut Lehibacher Vilikachei Hahistoria [78]; HCJ 693/91 Efrat v. Commissioner of the Population Registry in the Ministry of Interior (Efrat) [11] at 770. It constitutes one of the central expressions of the constitutional right of every person in Israel to dignity, a right anchored in the Basic Law: Human Dignity and Liberty. Indeed, it has already been ruled that one of the expressions of right to dignity is “the freedom of choice of every person as an individual being” and that this reflects the conception that every person … is a world in himself or herself and an end unto himself or herself.” HCJ 7357/95 Baraki Petar and Humphries (Israel) Ltd. v. State of Israel, (hereinafter, Baraki Petar and Humphries [12] at 783-84) (Barak, P.). President Barak further noted that, “The autonomy of individual will is a basic value in our legal system. Today it is anchored in the constitutional protection of human dignity.” HCJ 4330/93 Ganem v. Tel Aviv District Committee of the Bar Association (Ganem) [13] at 233-34. In this context, President Shamgar gave the following explanation of human dignity:

Human dignity is reflected, inter alia, in the ability of a human being as such, to freely form his or her personality at his or her own free will, to express ambitions and to choose the means of realizing them, to make his or her own volitional choices, not to be subjected to arbitrary coercion, the right to fair treatment by any authority or any other individual, to benefit from the inherent equality of all human beings …

CA 59942/92 Anonymous v. Anonymous [14] at 42.

18. The right to autonomy is “a framework right.” 3 A. Barak, Parshanut Bimishpat [Interpretation in Law], Parshanut Chukatit [Constitutional Interpretation] [76] at 357-58. Accordingly, this right served as a basis for deriving numerous specific rights. For example, it was the basis of the right of every person to choose his or her family name (Efrat [11]); for the right of the criminally accused not to be present at trial against their will (Baraki Peta Humphries, supra [12]; it was accorded weight regarding the question of appointing a guardian for another person (CA 1233/94 Cohen v. Attorney General [15] paras. 4,5, (Strasberg-Cohen, J.)). It was the basis for the fundamental right of every person to freedom of movement in Israel. HC 5016/96 Horev v. Transportation Minister [16] at 59-60 {256-57} (Barak, P.). It was also the basis of a person’s right to choose his or her own attorney to represent the person in court. Ganem, supra [13]. It was also given significant weight regarding the question of whether and to what extent one can recognize the validity of the adoption of an adult person, based on the approach that “In our times, when ‘human dignity’ is a protected, constitutional right, we must give effect to the individual's desire to concretize his or her own personal being …” CA 7155/96 Anonymous v. Attorney General [17] at 175 (Beinisch, J).

19. A person’s right to dignity and autonomy are cardinally important in the context of medical treatment. Medical treatment is part of the inner core of a person’s right to control his or her life. The impact it may have on a person’s lifestyle and quality of life may be direct and often irreversible. Accordingly, the derivative of a person’s right to autonomy is the right to receive information regarding the medical treatment he or she receives in a hospital. LCA 1412/94 Hadassah Medical Association, Ein Kerem v. Gilad [18] at 525. In the same vein, it was held that a person may not be pressured, either directly or indirectly, into consenting to an operation on his or her body which he or she does not want by way of reducing the compensation to which he or she is entitled. CA 4837/92 “Eliyahu” Insurance Company v. Borba [19]. This expresses the conception that “a medical operation constitutes an assault on a person’s body, and a person must retain autonomy over his or her body to decide whether he or she desires such an assault or not.” Id. at 261. The patient is entitled to refuse treatment, even if its advantages exceed its disadvantages and its prospects outweigh its dangers. The central focus of the decision to perform medical treatment is primarily the patient’s rights as a person, especially his or her right to dignity and autonomy, and only to a lesser extent, the medical repercussions of his or her decision. See R. Macklin, Symposium: Law and Psychiatry, Part II: Some Problems in Gaining Informed Consent from Psychiatric Patients [100] at 349-50. See also Justice Mazza’s opinion in CA 4384/90 [3] at 181.

The right to autonomy is also the main foundation of the doctrine of informed consent under which, subject to certain exceptions which are not relevant here, no medical procedure can be performed on a person’s body unless his or her informed is given. CA 3108/91 [1] at 91. In this context, the rule is that “where the choice of a medical course or the receipt of medical treatment involves substantial risks, doctors are obliged (subject to exceptions) to provide the patient with the information that is reasonably necessary for him or her to reach a personal and informed decision as to whether or not to choose the particular medical treatment and to take the risks involved. CA 4384/90 [3] at 182 (Mazza, J.). The decision concerning medical treatment … “must be an individual decision which first and foremost takes into account the will and choices of the patient himself..” Id. Justice Dorner summarized this point well in CA 434/94 [7]:

The patient is not an object. The patient is a subject who bears the consequences of the risks and chances that the doctor takes when choosing the manner of treatment. As such, the patient has the basic right, flowing from the autonomy of the individual, to make an informed decision, i.e. with awareness of the relevant facts, whether to agree to medical treatment being proposed to him or her.

Id. at 212.

20. Parenthetically, it should be noted, in order to provide a complete picture, that in 1996, the Patient’s Rights Law was enacted. The purpose of the law is “to establish the rights of a person applying for, or receiving medical treatment and to protect his or her dignity and privacy.” Sec. 1. The law prescribes, inter alia, a detailed arrangement regulating the subject of the patient’s informed consent to medical treatment Sec 13-15. This law does not apply in our case, given that it was enacted after the biopsy was performed on the appellant.

Violation of Autonomy: A Remunerable Damage Under the Tort Ordinance [New Version]

21. Returning to the case before us. As I indicated above, under the circumstances of this case, the duty to receive appellant’s informed consent to the biopsy on her shoulder was not discharged. This was a violation of appellant’s basic right, as a human being, to dignity and autonomy. Does this fact confer the appellant with a right to compensation, even if the appellant suffered no bodily damage as a result of the failure to receive her informed consent?

The first question to be addressed in this matter is whether or not the damage involved in the harm to the patient’s dignity and autonomy is “damage” in the sense of the Tort Ordinance [New Version]. In my view, this question must be answered affirmatively. The term “damage” is defined in Section 2 of the Tort Ordinance [New Version]. The definition is broad, including “loss of life, loss of assets, comfort, bodily welfare or reputation, or detriment thereof, or any other similar loss or detriment.”

In the framework of this definition, protection is given to numerous intangible interests. As such, compensation is awarded for non-pecuniary damage, such as pain and suffering, which are part of the bodily damage caused to a victim. The breadth of the definition led to the ruling that any harm to bodily comfort, pain and suffering, even without physical expression, even if not accompanied by any bodily damage of any kind, may constitute remunerable damage in a tort action. CA 243/83 Jerusalem Municipality v. Gordon [20] at 139 (hereinafter - Gordon). In accordance with this approach, the Tort Ordinance [New Version] also protects “the victim’s interests in his or her life, comfort, and happiness.” Id. at 141. Accordingly, the Court ruled that a person harassed by reason of a criminal procedure that originated in the negligent adoption of a mistaken criminal procedure against him is entitled to compensation from the prosecuting authority for that damage. Id.

In a series of subsequent judgments, the Court trod a similar path, awarding damages for harming intangible interests of plaintiffs in tort actions. Hence, the Court ruled that the owner of a copyright is entitled to compensation for psychological damage and emotional distress caused by the violation of the right. CA 4500/90 Herschko v. Aurbach [21] at 432 (Levin, D.P.). This was also the ruling regarding damage to a person’s dignity and freedom occasioned by his coerced and illegal hospitalization in a mental health hospital. CA 558/84 Carmeli v. State of Israel (Carmeli) [22] at 772 (Netanyahu, J.). Similarly, the Court ruled that the suffering sustained by a woman whose husband divorced her under circumstances of duress constitutes compensable damage. CA 1730/92 Matzrava v. Matzrava [23], para. 9 (Goldberg, J.).

The same applies to the violation of a person’s dignity and sensibilities which constitute a fundamental head of damages in the tort of assault and in the tort of false imprisonment. See H. McGregor, On Damages at 1024, 1026.

Against this background, I think that the violation of human dignity and right to autonomy caused by the performance of a medical procedure on a person without his or her informed consent entitles him or her to compensatory damages under tort law. The illegal harm to a person’s sensibilities attendant to the failure to respect the basic right to shape his or her life according to his or her own will constitutes a detriment to that person’s welfare and falls within the aforementioned category of “damage.” It matters not whether we regard it as damage to “comfort” or “or any other similar loss or detriment” under the definition of the “damage” in section 2 of the Ordinance. We have dealt with the centrality of the right to autonomy in shaping the identity and fate of a person in the society in which we live. The right to autonomy is central to the formulation of a person’s identity and fate in our society. It is a crucial component of a person’s ability to live as an independent and thinking individual. The inevitable conclusion is that this right is an essential part of a person’s interest in “his or her life, comfort, and happiness” (Gordon [20] at 122), and its violation may entitle the individual to compensatory damages. As Crisp wrote:

One’s well-being is constituted partly by the very living of one’s life oneself, as opposed to having it led for one by others. The fear we have of paternalism does not arise merely from the thought that we know our own interests better than others, but from the high value we put on running our own lives.

R Crisp, Medical Negligence, Assault, Informed Consent and Autonomy, [101] at 82.

A person is not an object. Every legally competent person is entitled to have his or her wishes respected by society and its members, in all important matters relating to that individual, provided that he or she does not harm others. LCrim 6795/93 Agadi v. State of Israel [24] at 710. It derives from the recognition of a person’s intrinsic value and of the fact that all people are free. Violation of this fundamental right, other than by force of legal power or right, seriously vitiates individual welfare, constituting damages for which compensation can be awarded.

Violation of Autonomy, Violation of the Doctor’s Duty of Care to the Patient

22. Our affirmative answer to the question of whether the damage discussed entitles its victim to compensation under the Tort Ordinance [New Version] does not terminate the discussion. Where a claim is based on negligence, the victim’s right to compensation depends on whether the tortfeasor owes a duty of care to the victim to prevent that damage. Recognition of this obligation is a function of “considerations of legal policy.” Gordon [20] at 140. Gordon ruled that the tort of negligence also encompasses a duty of care for damage which is neither pecuniary nor bodily, caused to persons within the first circle of risk, in other words, the targets of the injurious activity. In this context, Justice Barak ruled that:

The tort of negligence should provide equal protection to both the victim’s interest in his or her body and money and his or her interest in life, comfort and happiness. Non-pecuniary damage should not be regarded as “parasitical,” only to be tolerated when ancillary to pecuniary damage. It should be recognized as independent damage, meriting compensation as such. Human dignity, a person’s reputation, comfort, and mental well-being are important to proper societal life and must receive the appropriate protection granted to all other pecuniary interests. A person’s body and property are no more important than his or her grief.

Gordon [20] at 142.

Application of these considerations in a case of the type at hand tips the scales in favor of recognizing a victim’s right to compensation for non-pecuniary damages. The tortfeasor – who was responsible for providing the treatment – is clearly capable of anticipating the damages that will ensue from the violation of the person’s basic right to autonomy should the person fail to receive the information necessary to decide whether or not to undergo the treatment. See CA 195/91 State of Israel v. Levy [25] at 65-66 (Shamgar, P).

The person responsible for providing treatment and his or her patient are connected by relations of “proximity” within the tort law meaning of the term. This term refers to the component of duty of care, and it relates to “a special connection of different kinds between the tortfeasor and the victim.” It serves as “a means of control and supervision over the borders of responsibility by delimiting the “circles of danger.” Y. Gilad, Al Hanachot Avoda, Intuitzia Shiputit Veratzionaliut beKeviat Gidrei Achrayut BeRashlanut [79] at 322. A particularly close and intimate connection exists between the patient and the person responsible for his treatment in view of the treatment’s potentially far-reaching implications for the patient’s life and welfare. Against this background it was ruled that the patient-doctor relationship is predicated on a relationship of trust which “is the basis of the patient’s readiness to place his or her life, health, and welfare in the doctor’s hands.” CA 50/91 Sabin v. Minister of Health [26] at 34 (Shamgar P.). The patient undergoing a medical procedure is in the primary circle of risk of suffering harm if, prior to that procedure, the patient does not receive all the relevant information. Recognition of the patient’s right to compensation will not create broad circles of obligations which we cannot anticipate in advance. Consequently, the proximity requirement derives from the consideration that “according to any consideration of legal policy, there is a (normative) duty to anticipate non-pecuniary damage to a person who happens to fall within the primary circle of danger. In other words the person who was the target of the injurious action.” Gordon [20] at 142.

Furthermore, the nature of the relationship between the patient and doctor is such that the doctor is in a better position to prevent these kinds of damages. It must be remembered: The doctor enjoys an absolute advantage in knowledge over the patient. As a rule, the patient lacks the tools that would enable him or her to make an independent assessment of the various matters relating to the treatment. The patient does not have the fundamental corpus of knowledge that would enables him or her to direct questions to the treating doctor about all aspects of the particular medical procedure being considered. In other words, the doctor responsible for the treatment is fully equipped to adopt all measures that are necessary to prevent the damage that may be incurred by the patient due to a failure to provide important information prior to the actual treatment. Recognition of the patient’s right to compensation for violation of his autonomy in a case where this duty was breached may also help contribute to the duty actually being fulfilled [in other cases – ed.]. It may be of assistance in preventing situations such as ours, in which the doctors ascribe minimal significance, if any, to the patient’s opinion regarding the medical procedure, which in their opinion should be performed on the patient’s body.

Rejection of Considerations Against Recognizing the Obligation to Compensate for the Violation of Autonomy

23. Are there any counter-considerations, tipping the scale against recognizing the obligation to compensate for violation of a patient’s autonomy?

a) One possible consideration concerns the fear of what is referred to as “defensive medicine.” By that I mean the practice of medicine focused on the doctor’s protection against potential liability as distinct from the focus on the patient’s welfare. See the detailed comment of my colleague, Justice Strasberg-Cohen, regarding this concern; CA 2989/95 Korantz v. Sapir Medical Center – “Meir” Hospital at 698-99; A. Porat, Dinei Nezikin: Avlat Harashlanut alpi Pesikato shel Beit Hamishpat Haelyon Minekudat Mabat Theoretit [Tort of Negligence], [80] at 37. In our case, this fear would be manifested by providing unnecessary, superfluous information to the patient with the intention of exempting the doctor from possible liability. But in fact, “flooding” the patient with unnecessary information can actually violate the patient’s autonomy to the extent that it prevents him or her from exercising effective and meaningful discretion before deciding whether to undergo the medical procedure.

In my opinion, however, this fear should not be accorded significant weight in our case. Irrespective of whether or not we recognize an obligation to compensate for violation of the patient’s right to autonomy, it is still the doctor’s duty to give the patient all essential information of importance for the patient’s decision whether or not to consent to a particular medical procedure. This is the derivate of the doctor’s general and concrete duty of care which he owes to the patient, and which today is anchored in the Patient’s Right Law.

Our case is not concerned with broadening the existing duty or creating an expanded duty to give the patient information. There are parameters that determine the scope of information that the doctor must give the patient, and we will not broaden them. The obligation to give the patient this information applies, and will continue to apply, only to information of which the patient must be aware in order to decide whether or not to agree to the treatment. The doctor’s failure to discharge his or her duty of disclosure to the patient violates the patient’s autonomy. The determination that such violation of autonomy creates an additional right to compensation in no way affects the nature or the scope of this duty. The scope and the nature of the information which the doctor must give to the patient continues to be a derivative of the patient’s right to decide, on the basis of all the relevant information, whether to agree to the treatment proposed. Even in the legal regime proposed, which recognizes the patient’s right to compensation for the mere fact of the violation of his or her autonomy, the patient would not be entitled to any compensation in a situation in which the doctor failed to give the patient information which was not important to the patient’s decision.

Furthermore, in the current legal regime, doctors are liable for compensation of patients when there is a causal connection between the violation of the duty to receive the patient’s informed consent and the bodily damage caused to the patient. Usually the victim’s compensation award for the mere violation of the patient’s right to autonomy will be relatively small in relation to compensation for bodily damage. We should remember that we are not dealing with punitive or extraordinary damages but rather with compensation for harm to an intangible value, usually of restricted scope. See para. 27, infra. As such, we are not dealing with the broadening of potential professional liability to a degree which could trigger a real fear of widespread adoption of the practice of giving superfluous information to patients. In this context, Englard cites the following statement in his book: “Authoritarianism is deeply embedded in professional practices.” Supra [83] at 165. These comments, which largely reflect reality, tell us that as a matter of fact, we are still a far cry from the situation in which a patient’s autonomy will be violated by being provided with superfluous information. As such, I would not accord significant weight to this consideration.

b) Another risk mentioned in this connection is the danger of high administrative costs due to the court being flooded with claims. Amongst the other factors, there are objective difficulties in adjudicating this kind of tort action, which by definition is vague and intangible. See Porat [80] at 389.

The “flooding” claim has been raised on a number of occasions in the past, when the question deliberated was the existence of a duty of care on the part of the different administrative authorities. See e.g. CA 429/82 State of Israel v. Sohan [28] at 741 (Barak, J); Gordon, supra [20] at 125. Usually the Court has not accorded significant weight to this claim, and in my opinion, rightly so. Experience indicates that none of the cases in which the claim was raised actually triggered the flooding of which we had been warned, including with regard to the subject of compensation for non-pecuniary damage only. Absent, a firm, factual foundation for this claim, I would therefore avoid according any significant weight to this consideration. Furthermore, we must remember that we are dealing here with substantive law, which concerns the rights of individuals to compensation for a violation of one of their basic rights. Courts exist in order to do justice, and in the words of Justice Netanyahu, discussing periodic compensation payments:

The principle of the finality of a judgment, whether it protects a party against being unnecessarily disturbed or protects the court against being flooded with applications for repeated adjudication, is indeed an important matter, but it should not prevail over the primary consideration, which is doing justice between two parties. CA 283/89 Haifa Municipality v. Moskovitz [29] at 727 (emphasis added, T.O).

(c) It was further claimed that that there is no need to recognize a damageable right in cases of the kind before us, because in reality there are numerous patients who do not desire autonomy when receiving medical treatment. For various reasons rooted in the nature of the situation of treatment situation and the nature of the doctor-patient relationship, patients prefer to transfer responsibility for deciding their fate to the doctors treating them. See Englard, supra [83], at 163-65. Consequently, one cannot say that any damage was incurred by these patients due to the failure to disclose the risks and damages occasioned by the treatment they received.

I lack the tools required for an empirical examination of this proposition. I have serious doubts whether most patients voluntarily waive any significant involvement in the decision making process regarding treatment they are about to receive and have no interest in such involvement. Furthermore, compensation for damage awarded for the violation of the right to autonomy is individually based, taking into consideration the particular circumstances of the case. See para. 27, infra. Accordingly, there may be cases in which the evidence indicates that the patient’s right to autonomy was not violated, despite the failure to comply with the legal duty to receive the patient’s informed consent to medical treatment. For example, the patient’s particular subjective preferences may lead the court to conclude that there is no justification for granting the patient compensation for violation of that right. Nonetheless, from a conceptual perspective, this does not preclude recognition of statutory remedy for cases in which the evidence indicates a violation of the patient’s right to autonomy.

As such, I conclude the reasons for rejecting recognition of a duty to compensate for damages caused by the violation of autonomy do not convince me to change my conclusion that such duty should be recognized.

24. This conclusion is buttressed by an additional consideration. Normally, there is a contractual connection binding the patient, the doctor treating him or her, and the institution in which treatment is given. This contract includes an implicit condition whereby the treatment given to the patient will comply with required standards of expertise and reasonability. Providing treatment without receiving the patient’s informed consent to the treatment constitutes a breach of this duty and is therefore a breach of the contractual obligation owed to the patient. See CA 3786 Levi v. Sherman [30] at 462. That violation may entitle the patient to a remedy, inter alia, under section 13 of the Contract Law (Remedies for Breach of Contract), 1970, which provides that “where the breach of contract has caused other than pecuniary damage, the Court may award compensation for that damage at the rate it deems appropriate under the circumstances of the case.” Among other things, the provision entitles the victim of such a violation to compensation for “hurt, suffering, disappointment and emotional pain, and perhaps even for loss of pleasure.” G. Shalev, Dinei Chozim [Contracts Law] [75] at 586. These damages are essentially similar to damages sustained by the patient due to the violation of his or her autonomy. Recognition of a contractually based compensatory right by reason of those damages provides additional support for the conclusion that there should be recognition of a similar duty in the tort context. There is no rational reason for distinguishing between the grounds for a contractual action and the grounds for an action in tort, where both actions flow from the same set of relations.

Case Law Supporting Recognition of Right to Compensation for the Violation of Autonomy

25. In addition to the aforementioned considerations, I will add that over the last few years, the tendency in case law has been to recognize the patient’s right to compensation for damages incurred by reason of the violation of his or her dignity caused by the treating doctor’s failure to provide relevant information, even in situations where there was no proof of a causal connection between the bodily damage caused to the patient and the doctor’s violation of the duty.

In this context, I refer to Goorkani [66], mentioned above in another context. A man received treatment aimed at preventing blindness that was developing due to a sickness from which he was suffering. He was not informed that the treatment was liable to render him infertile. The court determined that there was no proof that the patient’s decision would have been different had he been informed of that risk. Even so, the court awarded compensation for the sum of 2,500 pounds sterling by reason of “the loss of self-esteem, shock and anger at the discovery of his infertility, together with the frustration and disruption which ignorance and sudden shock of discovery brought to the marital relationship.” Id. at 24-25 (emphasis added – T.O).

Similarly, in Smith [56], also referred to above, the court ruled that there was no proof of a causal connection between the paralysis suffered by plaintiff following her operation and the omission of failing to inform her, prior to the operation, of the 25% risk factor of disability. As stated, the [physical damages – ed.] claim was rejected, but the court still awarded plaintiff the sum of 3,000 pounds sterling for the mental shock she sustained upon becoming aware that she had incurred a severe disability, with no prior warning of the possibility of its occurrence. The court arrived at a similar result in Lachambra v. Nair (1989) [57], cited by Edward ([83], n.19 at 172). There, the court ruled that it was not proven – objectively or subjectively - that plaintiff would have not agreed to the performance of the proposed medical procedure, even had he been given all the relevant information. But despite the absence of proof that the tort had caused pecuniary damage, plaintiff was awarded compensation for the sum of $5000, in view of the breach of the patient’s right to receive all the relevant information prior to the medical treatment.

Summing up this point, these judgments evidence a trend which is in conformity with my own conclusion: recognition of the duty to compensate for the mere violation of a person’s autonomy.

26. This concludes my discussion of the patient’s right to compensation for violation of autonomy occasioned by the breach of the duty to receive his informed consent to medical treatment. My conclusion is that there should be recognition of a duty to compensate the patient for this violation. Indeed, if we take a serious attitude to the patient’s right to choose whether and what kind of medical treatment he or she is to receive, then our ruling should be that there is “a price” for the very fact that his or her dignity was harmed because medical treatment was performed on the patient’s body without receiving the patient’s informed consent. See M.R. Fluck, The Due Process of Dying [102] at 141. In her book, Barak-Erez made this point too, arguing that “if tort law purports to protect interests which the legal system considers important, then in accordance with contemporary thinking, the time has come to extend the protection of these laws to individual rights.” [73] at 157.

Violation of Autonomy in Addition to Bodily Damage Caused by Negligence in Medical Treatment

27.  At this point. we must relate to the concern mentioned by my colleague, Justice Beinisch, that recognition of the patient’s right to compensation for the violation of his or her autonomy may paradoxically lead to “a limitation of the compensation given to the victim of a treatment, being content with nominal compensation…” in view of the danger that the courts will avoid “dealing with the complex question of the causal connection”.

These comments rest on the assumption, with which I concur, that as a matter of principle, violation of autonomy and bodily damage constitute two distinct torts, one being supplementary to another and not instead of the other. Compensation for violation of autonomy does not replace compensation for bodily damage. It is supplementary thereto, and attempts to place the injured party as near as possible to his or her original position by way of pecuniary compensation.

Indeed, there are numerous cases in which the claim for compensation occasioned by violation of autonomy will not be the main remedy requested, and the claim will focus on the patient’s right to compensation for bodily damage caused by reason of medical treatment performed without the his or her informed consent. In that framework, the examination required is not limited to ascertaining whether or not there was a breach of the duty to provide the patient with all information required to decide whether not to undergo the treatment. The parties and the court, too, must also decide upon the causal connection between the breach of the duty and the damage actually caused. Indeed, in numerous cases both the evidence and legal argumentation focus primarily on this last question. A question arises as to whether this situation provides cause for concern that the court will take the “easy” path. In other words, the court is liable to determine that there was no casual connection between the breach of the duty and damage caused, even in the absence of any substantive justification for its determination. It could choose this path of action in the knowledge that the patient also has a right to some compensation for violation of his autonomy.

I think that the question ought to be answered in the negative. In my opinion, trial judges deserve credit in the form of the assumption that they will not diminish the substantive rights of a patient to whom remunerable damage was caused as a result of receiving medical treatment without his informed consent. Nor should one forget that judgments in these matters are subject to appeal. Inadequate reasoning for the determination was that there no proof of casual connection between the violation of the duty and the damage that was caused will not stand up to judicial review. Neither is it amiss to mention that in the two English cases mentioned above, which determined that there was no casual connection between the violation of the duty and the actual damage, there was, inter alia, a ruling of compensation for the violation of autonomy and a detailed judicial discussion of the question of the casual connection. Neither of the judgments evidence any sign of an attempt to “avoid” dealing with this complicated question.

In sum, there does not appear to be any substantial foundation for my colleague’s concern. As such, my conclusion is that there ought to be recognition of the tort of violation of right to autonomy as an independent tort under which compensation is awarded to a patient, where there was a breach of the duty to provide him or her with necessary information.

The Extent of the Damage in the Violation to the Right to Autonomy – Generally and in Our Case

28. Having ruled that there is a duty to compensate for damages sustained as a result of violation of autonomy, I will now examine the question of proving the damage and its scope. Naturally, matters relating to the proof and the extent of damage are determined in accordance with the particular data in each individual case and the evidence submitted in court. The substantive criterion for generally determining the amount of compensation to which the victim is entitled is the criterion of restoring the situation to its original [ex ante – ed.] state. This criterion is an individual one. It requires an individual assessment of the gravity of the harm caused to the specific victim. See CA 2934/93 Soroka v. Hababu [31] at 692.

In cases of the kind under discussion, the damage is expressed primarily in the plaintiff’s psychological and emotional response to the fact that medical treatment was performed on the patient’s body without his or her informed consent and the fact that risks materialized of which the patient was not informed prior to agreeing to the treatment See Englard at 164. In assessing the amount of compensation for the damage, there is importance to the severity of the breach of the duty to receive the patient’s informed consent prior to performing the treatment. Failure to provide any manner of significant information concerning the procedure about to be performed is generally more serious than failure to provide part of the substantive information.

Similarly, the graver the danger of which the patient was not informed in terms of possible injury, and the greater the likelihood of it materializing, the more serious the violation of patient autonomy. In other words, there is a proportional relationship between the gravity of the decision from the patient’s perspective, the gravity attaching to a denial of his or her effective involvement in the decision-making process, and the gravity of the violation of the right to autonomy. Thus, to the extent that the potential damage is greater, so too, greater importance attaches to the duty of informing the patient of the potential danger, which in turn impacts on the severity of the violation of the duty and the actual damage caused to the patient by that omission.

Clearly, these guidelines are only general. By definition, the damage in this kind of case involves a predominantly subjective aspect, giving rise to inevitable difficulties in assessing it. Ultimately, the sum of compensation in each particular case, similar to compensation for other non-pecuniary damages, is a matter of judicial discretion, and it is thus determined by making an evaluation based on all the relevant circumstances and the impression of the court. The court must therefore adopt a balanced approach. It should give the appropriate weight to the fact that basic human rights were violated, which dictates an award of appropriate compensation as opposed to a symbolic compensation. On the other hand, considering the difficulties inherent in the procedure of accessing the damage, judicial restraint is required, and exaggerated compensation awards should be avoided/ See Alexander v Home Office [58] at 122, which adopted a similar approach.

Summing up this point, Barak-Erez’s comments are relevant, with the necessary changes, for assessing damage in the case of violation of an abstract constitutional right:

Compensation will be based on an assessment of the degree of offense to the individual’s sensibilities, against the background of the particular circumstances. In view of the essence of this kind of violation of rights, one cannot expect accurate proof of damage, as with the proof required for consequential damages, whether physical or economic. This kind of proof is not possible, given that there is no criterion for general, non-pathological feelings of insult and grief. Courts will have to make an assessment based on the circumstances and also based on the judges’ life experience. The compensation will not be symbolic. It will be based on the assumption the damage was caused….

On the other hand, one can not diverge from principles of tort by awarding compensation which is unrelated to the concrete violation and its circumstances. The sum of compensation cannot and should not reflect the universal value of the right … In the area of torts, compensation is determined according to the damage suffered by the plaintiff himself or herself, and not according to the value of his or her rights from the perspective of another person”.

[73] at 276-77.

Precision is required here. These comments were made in the context of a general thesis, advocating recognition of the citizen’s right to compensation when an authority illegally violates his constitutional right. The question is an important one, concerning judicial recognition of the existence of “constitutional torts,” but it does not arise in the case before us, and I need not express a position on the matter. Even so, the author dealt with the subject of compensation and assessment of the appropriate amount of compensation in the case of a violation of a constitutional right. Her comments are applicable mutatis mutandis to the case before us, in which we are required to determine the sum of compensation for negligence. Furthermore, they express the salient elements of my own views on the subject.

29. In the case before us no detailed evidence was submitted regarding the damage sustained by Appellant. The lack of evidence as such does not vitiate Appellant’s right to compensation for general damage of the violation of her autonomy. When dealing with general damage as opposed to pecuniary damage, the court may, in appropriate circumstances, award monetary compensation even absent specific and detailed proof of concrete damage.

This was the spirit of the Supreme Court ruling in Matzraba [23], mentioned above. That case concerned a woman’s action in tort against her ex-husband who had divorced her against her will, in contravention of section 181 of the Penal Law, 1977. Plaintiff adduced no evidence of the damage caused to her as a result of defendant’s act. Justice Goldberg ruled that nonetheless, there can be no doubt that the plaintiff suffered by reason of the coerced divorce. Justice Goldberg wrote that, in these circumstances:

Even absent proof of concrete damage sustained by plaintiff, the court should have ruled an estimated compensation for general damage that she no doubt suffered as a result of the respondent having severed the marital bond against her will. Para. 9 of the judgment.

Accordingly, Justice Goldberg accepted the plaintiff’s appeal to the extent that it related to the tort grounds on which her claim was based, and he assessed the general damage sustained by her due to her divorce at NIS 30,000.

Justice Netanyahu made a similar ruling in Carmeli [22], which dealt with a plaintiff’s forced hospitalization in an institution for the mentally disturbed. The plaintiff’s action was based on violation of a statutory duty. The judges disputed whether an action on that basis could be substantiated in circumstances in which there were specific defenses regarding the tort of unlawful confinement. The majority answered in the negative and did not even address the question of damage caused to the plaintiff. Justice Netanyahu, having answered in the affirmative, proceeded to address the question of damages. She ruled that even though pecuniary damage was not proven, “general damage was caused by the mere virtue of her [the plaintiff’s – T.O.] forced confinement in a hospital for the mentally disturbed, and such damage does not require proof.” Id. at 772. She therefore awarded an estimated sum of damages, fixing the amount at NIS 10,000 as of the judgment date (May 30, 1984).

The principle evidenced by these judgments is similarly applicable to our case. The judgments cited relate to the tort of breach of statutory duty. Like the tort of negligence that concerns us here, the element of damage is similarly a component of the tort of the breach of a statutory duty. Yet this did not preclude a compensatory award for the general damages caused by the tortuous act. This expresses the general principle whereby there is no need to prove general damage and its scope because the existence of damage and its scope derive from the very fact of the tortfeasor’s breach of his duty. In a similar vein, we can refer to the language of the Second Restatement of the Law of Torts [114], which states the following:

In many cases in which there can be recovery for general damages, there need be no proof of the extent of the harm, since the existence of the harm may be assumed and its extent is inferred as a matter of common knowledge from the existence of the injury as described.

Id. at note ‘a’ of sec. 912.

And in note (b) of section 912, similar comments are made regarding non-tangible damage, to the effect that:

In these cases the trier of fact can properly award substantial damages as compensation for harms that normally flow from the tortious injury even without specific proof of their existence, such as pain from a blow or humiliation from a scar. Evidence to prove that the harm is greater or less than that which ordinarily follows is admissible. The most that can be done is to note such factors as the intensity of the pain or humiliation, its actual or probable duration and the expectable consequences.

 

Considering these principles, I would award the appellant a certain compensation for the violation of her right to autonomy. I dealt above with the circumstances surrounding the appellant’s agreement, noting that they did not comply with the requirements of informed consent. Even if the appellant had general knowledge that they were going to perform a biopsy on her shoulder, the intention to perform the biopsy at the time and the place in which it was done was only made clear to the appellant immediately before the actual performance of the procedure, when she was in the operating room. This did not allow the appellant to exercise real discretion regarding the performance of that particular action on her body, and as such there was a violation of her basic right to control what would be done to her body. In view of the totality of circumstances in this matter and in the absence of any particular detailed evidence of the damage caused to the appellant as a result of that violation, I would award the compensation in the amount of NIS 15,000.

The Result

In view of all of the above, I would grant the appellant’s appeal, and in consideration of all that has been explained, I would rule that she receive compensation in the sum of NIS 15,000. Under the circumstances, I would order the respondents to pay appellant’s expenses in both courts in the sum of 10,000 NIS.

Justice T. Strasberg-Cohen

1. Should appellant be compensated for the respondents’ negligence in the receipt of informed consent for performing the operation on her shoulder? And if so – for which kind of damage? These are the questions to be decided.

My colleagues are divided on the matter. Justice Beinisch maintains that the appellant would not have agreed to the operation had her informed consent been requested, and that she should therefore be compensated for all the damage caused to her by the operation. On the other hand, Justice Or believes that the appellant would have agreed to the operation and is therefore not entitled to compensation for the injury. At the same time, he recognizes a new head of tort - violation of autonomy - and suggests that she be compensated only for that.

Unfortunately, on some of these issues I cannot concur with my colleagues, although our approaches do occasionally converge. In my discussion of the issues at hand, I will rely on the set of facts and its attendant conclusions as determined by my colleague, Justice Beinisch, and to which my colleague, Justice Or, agreed. The first assumption is that no medical negligence was involved in the decision to perform the operation, in the operation itself, or in the subsequent treatment. The second assumption is that the failure to receive the appellant’s informed consent provides grounds for a negligence-based action, and not an assault-based action. The third assumption is that the respondents were negligent by reason of their failure to receive appellant’s informed consent to the operation. What are the implications of this negligence? For the purpose of discussing this question, I briefly present the facts.

2. About one and a half months prior to the operation, the appellant was examined in the Health Fund and told of a suspicious finding on her shoulder requiring a biopsy. No appointment was made for this operation, which was supposed to be elective; the doctor did not indicate any urgency for it, and during the period that elapsed after the examination, nothing was done in preparation for the operation on the shoulder, and no date was set for it. On January 7, 1988, the appellant was hospitalized for an operation on her leg. During the two days following her arrival in hospital, all the arrangements required for her leg operation were made. Records show that no tests were conducted in relation to her shoulder, nor is there record of any consultation at the hospital regarding substituting the leg operation with an operation on the shoulder. While the appellant was in the operating room, prior to the operation on her leg, and after receiving tranquilizers and sedatives, she was asked to consent to an operation on her shoulder instead of on her leg, and such consent was forthcoming. Nothing in the evidence indicates that she received any explanation of why the operation on her leg was replaced by the operation on her shoulder; what was the urgency of the operation on the shoulder necessitating its performance then and there instead of the leg operation, and no less important - she was not informed of the risks involved in performing the shoulder operation. The shoulder was operated on, and the appellant was left with a “frozen” shoulder, suffering from disability.

 

The Case and its Problems

3. As my colleague, Justice Or, noted, the appellant was silent regarding whether or not she would have agreed to the operation had she been asked to give her informed consent since, according to her own testimony – which was rejected by the lower court – she had no idea that an operation was about to be performed on her shoulder. The lower court did not believe her, and there is no cause for intervention in that determination. Nonetheless, the question remains: what would she have done if her informed consent had been sought under the appropriate conditions, having received a full explanation of the risks and prospects of the medical action? Even had she testified on the matter, it is doubtful whether significant weight would have attached to her testimony, and even had she testified that she would not have consented, how much value could be ascribed to such testimony? (We will return to this below). At the same time, one can rely on the objective background facts connected to the case. It was recommended to the appellant that she undergo an operation on her shoulder about two months before it was performed. During this period, she did nothing to promote the performance of the operation. She was not told that the operation was urgent; she did not express her wish to perform an operation on her shoulder when she was told that she needed one; and she did not make an appointment for an operation on her shoulder. On the contrary, she set an appointment for an operation on her leg and preferred to have that operation performed rather than the shoulder operation. From a subjective perspective therefore, there is nothing to indicate that the appellant had prepared herself for a shoulder operation after it was recommended to her to do so, despite the passage of time.

An assessment of her behavior from the point of view of a reasonable patient also presents difficulties. How can one know what a reasonable patient would have decided absent any indication in the evidence as to the risks of the operation? Such risks were neither explained nor presented to her, and no medical evidence was presented to the court stating that there were absolutely no risks. One cannot learn anything from the subsequent consequences – the frozen shoulder –about the risk involved in performing the operation. Neither did the respondents enlighten the court as to whether it is rare or common for that risk to materialize or whether or not the patient should have been informed of its existence. Absent the elementary information that would have guided a reasonable patient in such circumstances, how does one determine what that reasonable patient would have decided? What do we have, apart from a disagreement between my colleagues over whether or not the appellant would have given her consent? Their dispute is not a legitimate difference of opinion between judges, which frequently leads to different conclusions. Rather, it is a different assessment of a hypothetical factual possibility, regarding the type of decision that might have been made by a patient in circumstances that never took place. Each of my colleagues laid out a series of grounds for their assessment. Each of them provided respectable explanations, but these do not enable a conclusion one way or the other. All they do is to indicate the existence of two feasible options.

How should we decide the law under these circumstances, and what are the questions requiring a response? If the need for the operation at that time and the risks involved had been explained to the appellant, would she have consented to it? Who should bear the burden of proof – the patient, that she would not have consented, or the doctors, that she would have consented? What degree of proof is required? Should the probability be over 50%? Should it be less? Do doctors bear the burden of proof because of their failure to obtain informed consent, irrespective of what the appellant would have done had her consent been duly sought? Should we impose the burden of proof on them because of the evidentiary damage caused to her in that they did not obtain her informed consent, such that she cannot prove what would have happened if … ? These questions and others hover over our case and have no single agreed-upon response, save that informed consent for treatment should be obtained from a patient and that from the patient in this case, no such informed consent was obtained.

“Informed Consent”

4. Today, it appears to be undisputed that a doctor must obtain informed consent from a patient for medical treatment in general, and for performing an operation on his or her body in particular. This rule is expressed in the literature. See e.g. Shultz, supra [94] at 220-23. See also Giesen [86] at 254-56; M. Jones, Medical Negligence [90] at 283; Shapira in his article [77]. In the case-law, see CA 560/84 [2]; CA 3108/91 [1]. In legislation, see e.g. Patient’s Rights Law, ch. Four, titled “Informed Consent to Medical Treatment”, secs.13-16; Mental Patients Treatment Law, 1991, sec. 4(a); Use of Hypnosis Law, 1984, sec. 5; Anatomy and Pathology Law, 1943, sec. 6A(b), and the various Public Health Regulations. In medical ethics, this rule is anchored in society’s basic concept of a person’s right to autonomy and sovereignty over his or her own body. The concept is also accepted in other legal systems. See Canadian Supreme Court judgments Hopp v. Lepp (1980) [70] at 70-71; Malette v. Shulman (1990) [71] at 336; Schloendorff v. Society of New York Hospital (1914) [53] at 93 (Cardozo, J.); in England: Chatterton v. Gerson (1981) [59]. I shall not expand on the issue, which my colleagues addressed at length in their opinions.

Causal Connection in a Hypothetical Occurrence

5. A distinction must be made between a causal connection in past factual-actual occurrences, on the one hand, and causal connections in past factual-hypothetical occurrences, on the other. In past hypothetical occurrences, we are not dealing with an actual occurrence but with something that never happened, the consequences of which – had the event occurred – would also be hypothetical. We encounter such an occurrence in the case of an omission, when the question is asked – what would have happened if the injuring party had not omitted performing his or her duty but rather fulfilled it. The law does not preclude dealing with questions involved in proving hypothetical facts. Proving a hypothetical fact is often required as one of the basics of liability, in order to determine the extent of the injury and to quantify compensation. Not all omissions are in the same class. See e.g. Bolitho v. City and Hackney Health Authority (1997) [60]. Sometimes there is no difficulty involved in determining what actually would have happened were it not for the negligent activity, and sometimes a negligent occurrence in the past teaches us nothing about another event that might have occurred or been prevented were it not for the omission. The possibility of drawing a conclusion regarding “what might have been,” based on a retrospective hypothetical test, is limited to certain cases which do not concern us. We will restrict our discussion to the omission of failing to obtain the patient’s informed consent.

6. Consider an action based on a breach of the duty of care intended to prevent injury of a particular kind: The injury actually occurs, and we do not know how the plaintiff would have behaved in a hypothetical eventuality in which the defendant actually discharged his or her duty. In certain cases, the courts would be ready to assume, in the plaintiff’s favor, that had the duty been discharged, the injury would have been prevented. This assumption is often based on experience, which serves as a yardstick for such assumptions. See R. Shapira, Hamechdal Hahistabruti shel Dinei Haraayot – Chelek 1 – Bikorot Mesortiot [81] at 234-37. On the other hand, when the action is based on negligence in obtaining informed consent, and proof is required of a causal connection between the doctor’s negligence and the injury to the patient, it has been argued that assumptions should not be made in the plaintiff’s favor, given our ignorance of what he or she would have decided; nor does experience teach us anything in this respect. See W.S. Malone, “Ruminations on Cause-in-Fact” [103] at 85-88.

7. Where there is negligence in obtaining informed consent, the doctor failed to act in conformity with his or her legal duty. The case therefore concerns a negligent omission, related to the hypothetical situation of having made a human decision which in fact was not made, due to the negligent omission that preceded it. We must therefore examine what would have happened were it not for that omission. For the purpose of this examination, we substitute actual negligent behavior with alternative hypothetical behavior, which is counterfactual. This question concerns the factual and legal causal connection between the negligent omission and the injury caused by performing the operation without obtaining informed consent. In other words, we assume a hypothetical situation in which it is assumed that the patient would have consented to treatment if his or her informed consent had been requested. If the assumption is that the patient would have given consent, then even if such consent were not sought, it may be stated that there is no causal connection between the doctor’s omission and the performance of the operation and consequent injury. On the other hand, if the counterfactual assumption is that the patient would not have consented to the operation, then applying that counterfactual assumption would mean that when the operation was performed without his or her consent, there is a causal connection between the doctor’s omission and the operation and consequent injury.

The question of what would have happened had the doctor fulfilled his or her duty has no clear answer, since the scenario is one in which the doctor did not provide the information, the patient did not receive it, and the patient did not make a decision based on the information. Examining the causal connection in this kind of case requires an assessment of expected conduct when the offense was committed and hindsight during the legal inquiry. This state of affairs is described in the book by Powers & Harris:

[The event – T.S.C.] was not a past fact – it lay in the future at the material time [i.e. when the tort was committed – T.S.C.].

[The event – T.S.C.] lay in the future at the date of commission of the tort, but cannot at the trial date be established as past or present facts because the circumstances make this impossible.

M.J. Powers, N.H. Harris, Medical Negligence [91] at 403-04.

8. The difficulties inherent in proving causal connection in cases involving vague, hypothetical and speculative aspects have been described by scholars and courts in Israel and other parts of the world. Hart & Honor wrote that:

The main structure of ... causal connection is plain enough, and there are many situations constantly recurring in ordinary life to which they have a clear application; yet it is also true that ... these have aspects which are vague or indeterminate; they involve the weighing of matters of degree, or the plausibility of hypothetical speculations, for which no exact criteria can be laid down. Hence their application, outside the safe area of simple examples, calls for judgment and is something over which judgments often differ ... Very often, in particular where an omission to take common precautions is asserted to be the cause of some disaster, a speculation as to what would have happened had the precaution been taken is involved. Though arguments one way or another over such hypothetical issues may certainly be rational and have more or less “weight”, there is a sense in which they cannot be conclusive.

H.L.A. Hart, T. Honor, Causation in the Law [92], at p. 62).

Reference to the difficulty raised by the proof of causal connection in a human hypothetical occurrence can be found, inter alia, in Englard’s article [74], pp. 229-30:

Significant difficulties are raised in replying to the hypothetical causal question: What would have happened had they acted in accordance with the law? The answer necessarily depends on estimates and guesses, especially when the question concerns hypothetical human responses.

The plaintiff generally bears the burden of proving his or her claim. As such, the plaintiff may find himself or herself in a problematic situation in which the evidentiary difficulties of presenting proof are liable to thwart the claim, even when it is substantial. Justice Mazza addressed this fundamental difficulty:

And if, indeed, [the plaintiffs, the deceased’s dependents – T.S.C.] are required to prove the existence of a causal connection … how can they do it? Who can testify, veritably from the mouth of the deceased, that had the doctors apprised her of the extent of the risk involved in continuing the pregnancy after her water had broken so early, she would have chosen to avoid taking the risk and demanded that the doctors immediately discontinue her pregnancy?

CA 4384/90 Vaturi [3] at 191.

Giesen also notes this:

It would make little sense if the plaintiff could “in theory” bring an action in damages for breach of the duty of disclosure but would, as a general rule, find his claim shipwrecked because he cannot prove how he would have reacted in the hypothetical event of having been informed about the risks.

Giesen [86] at 35.

9. These difficulties stem not only from the fact that the plaintiff must prove how he or she would have hypothetically responded to the omission of another person (the doctor) [– trans], but also from the inadequacy of the tools at his or her disposal for proving the same. Some say that the evidentiary weight of the plaintiff’s testimony in such cases is small, if not nil, since the plaintiff is on the witness stand testifying as to what he or she would have decided in a hypothetical situation that never took place. The plaintiff's reply does not establish a fact but itself consists of a hypothetical conjecture. The plaintiff testifies while suffering from an injury caused by the medical treatment. The plaintiff testifies in a proceeding in which he or she is claiming compensation for the injury suffered, knowing that success in the claim depends on his or her reply. Even if the plaintiff is naïve and believes retrospectively, while suffering from the consequences of the operation, that he or she would not have agreed to the operation, what weight should be attributed to this belief? The Canadian Supreme Court expressed this problem well:

[There is an – T.S.C.] inherent unreliability of the plaintiff’s self-serving assertion. It is not simply a question as to whether the plaintiff is believed. The plaintiff may be perfectly sincere in stating that in hindsight she believed that she would not have consented to the operation. This is not a statement of fact that, if accepted, concludes the matter. It is an opinion about what the plaintiff would have done in respect of a situation that did not occur. As such, the opinion may be honestly given without being accepted. In evaluating the opinion, the trier of fact must discount its probity not only by reason of its self-serving nature, but also by reason of the fact that it is likely to be colored by the trauma occasioned by the failed procedure.

Hollis v. Dow Corning Corp. (1995) [72] at 643 [emphasis added – T.S.C.].

Solutions Under the Rules of Evidence

10. In view of the above difficulties, the courts searched for various ways of coping with such situations. The solutions they adopted for the difficulties that arose – which were of various types – involved developing the rules of evidence. The laws of evidence in civil law are designed to serve the purpose of the substantive law, which is to find a just and fair solution – in the framework of the law – for providing relief to whomever is entitled thereto, and to withhold it from the non-entitled. The laws of evidence do not establish rigid, insurmountable rules; they establish flexible rules to serve the purpose they were designed to realize. These rules are established in legislation, and they are given effect in accordance with judicial interpretation, which is duty bound to find – within the framework of the law – an appropriate and just solution for every case.

The basic and widely used evidentiary rule in the civil law of our system, as in many others, is that the plaintiff bears the burden of proof, and the degree of proof is determined by the balance of probability, as in the ancient rule that “he who deigns to take must bring proof.” Accordingly, a plaintiff wins the suit if he or she proves more than a 50% probability, in which case the defendant bears complete liability or responsibility. Failure to bring that degree of proof means that the plaintiff loses the suit. Prima facie, the rule is effective, fair, rational, uniform, and applicable in all of civil law. However, there are many and varied situations in which it is either inappropriate or impossible to implement this rule. One of them, perhaps the most typical, is the situation in which the plaintiff bears the burden of proving, based on the balance of probability, how he or she would have behaved and what he or she would have decided, had he or she been given the information relevant for making a decision. Negligence in obtaining the patient’s informed consent illustrates this dilemma in full force.

What is the applicable evidentiary rule for proving the causal connection in a case like ours, and who bears the burden of proof? What degree of proof is required? To which legal test should we resort? The various possibilities include: requiring the plaintiff, who bears the burden of persuasion, to prove the causal connection by the balance of probability and subjecting the plaintiff to the full risk of failing to discharge the burden; transferring the burden of proof to the defendant, so that the defendant bears the burden according to the balance of probability rule and subjecting the defendant to the full risk of failing to discharge the burden; leaving the burden of proof on the plaintiff but reducing the degree of proof required; transferring the burden of proof to the defendant but reducing the degree of proof required; and assessing the chances that the hypothetical event would have occurred and awarding compensation proportionally, even if the degree of the proof provided by the plaintiff amounts to a probability of less than 50%.

The importance of adopting any particular test lies in the variant results obtained by each one. If a plaintiff is required to prove a causal connection, and the degree of proof is based on the balance of probability, if the plaintiff is unsuccessful, he or she loses the case. However, if the plaintiff discharges this burden by demonstrating a probability higher than 50%, the defendant bears full liability for the damage - a situation of “all or nothing.” On the other hand, if the doctor bears the burden of proof, according to the balance of probability test, the doctor must prove facts related to the spirit, mind and personality of the specific patient, or of a reasonable patient (see further below). If unsuccessful, the doctor bears liability for the entire injury. Both these results are harsh and unsatisfactory.

11. As in all cases, the case before us too requires us to start with an examination of whether one can apply the basic rule, under which the plaintiff bears the burden of proving the causal connection as one of the foundations of his or her action, requiring the degree of proof to be the balance of probability. For the rule is that “a judge’s primary function …. is to do his best to decide, based on the balance of probabilities (in civil law), between the conflicting versions ...” CA 414/66 Fishbein v. Douglas Victor Paul by Eastern Insurance Service [32] at 466. Only if it transpires that this rule does not resolve the particular problems of the case do we attempt to find a solution in alternative rules which will lead to a more appropriate and just result.

12. The road to formulating an appropriate and satisfactory solution for difficulties arising in the present issue is a hard one, requiring us to pay attention to various competing values and interests. See Justice Shamgar's comments in CA 3108/91 [1] at 507-08:

The laws governing this subject should be allowed to develop and to gradually crystallize within a normative, formulated system, by way of proceeding from case to case. To that end, we should take the following principal considerations into account: the changing nature of the science of medicine; the relevant competing values in the particular context, including the patient’s right to control over his or her own body, the shared desire of the doctor and the patient for the treatment to succeed (including the need to create an appropriate framework for the exercise of medical discretion) ...

The problems we mentioned and the evidentiary difficulties presented by this case are not unique. They occupied scholars and courts in other countries who also deliberated and searched for appropriate solutions. The various solutions they proposed included transferring the burden of proof, reducing the amount and degree of proof, dividing up the burden of proof, and using presumptions, the doctrine of evidentiary damage, and the test of evaluating chances.

13. The Federal Supreme Court in Germany considered the issue in a case in which full medical information was not provided to a patient. The court emphasized the evidentiary difficulties which thwart the claims of those who are unable to prove how they would have acted had they received the full relevant medical information. In searching for a solution for this difficulty, the court chose to diverge from the ordinary burdens of proof and to impose the burden of proving the absence of any causal connection on the defendant, who had breached his duty of care, such that the defendant would be subject to the risk of failing to discharge the evidentiary burden. The scholar Giesen gives the following description of the solution, as formulated by the Federal Supreme Court in Germany:

… in such cases the defendant in breach of his duty has to bear the risk that the causal link cannot be established with regard to the question of how the plaintiff would have reacted had the defendant properly discharged his legal duty of disclosure.

Cited in Giesen, supra [86] at 352.

The Swiss Federal court adopted a similar approach. Giesen [86] at 353.

The Canadian Supreme Court also adopted the solution of easing the plaintiff’s burden of proof and transferring it to the defendant. Hollis [72]. A woman filed an action for the emotional and physical injury she sustained due to the leakage of silicon implants in her body that had ruptured. The defendants were the manufacturer of the silicon implants and the doctors who operated on her. The court ruled that the woman was not required to prove that had the manufacturer included a warning in the pamphlet that came with the product that the implants might rupture while inside her body, then the doctor would have informed her accordingly. It was sufficient for her to prove that had she been aware of this risk, she would have chosen not to undergo the operation. Once the plaintiff proved this, the burden of proof was transferred to the manufacturer, who failed to discharge it. In another case, the Australian Supreme Court ruled that the plaintiff must prove that the doctor had breached his duty to provide relevant information about the risk involved in administering the medical treatment and that this risk actually materialized. Having proved this, a presumption was established of a factual causal connection between the negligence and the injury, which in turn transfers the burden of proof to the doctor who must prove that there was no causal connection. See the recent case of Chappel v. Hart (1998) [44].

Regarding relaxing the degree of proof needed to establish the factual causal connection that compels a response to a hypothetical question:

There is no doubt that, in establishing the factual causal connection requiring a response to a hypothetical question ... the courts might actually reduce the amount of proof required, contenting themselves with doubtful conjecture. They do this for considerations of legal policy.

Englard [74] at 230.

It should be noted that the author draws attention to the fact that the courts did not adopt this rule but continued to adhere to the principle of guilt, recoiling from ruling against a defendant whose liability had not been proven at greater than 50% probability.

14. Another solution for problems of evidentiary difficulties lies in the doctrine of evidentiary damage. A doctor’s negligence in receiving informed consent creates difficulties in proving the causal connection and denies the plaintiff the possibility of proving how and what he would have decided had he received the required information under the appropriate conditions. As such, his claim would seem to be doomed to failure. This negligence caused evidentiary damage to the plaintiff which, under the evidentiary damage doctrine, may lead to liability for the plaintiff’s injuries being placed on the doctor’s shoulders. In some cases, the defendant bears full liability for the plaintiff’s injuries, whereas in others, only relative liability is imposed. See A. Porat, A. Stein, “Liability for Uncertainty: Making Evidential Damage Actionable” and A. Porat, Doctrinat Hanezek Haraayati: Hahatzdakot LeImutza Veyisuma Bematzavim Tipussim shel Ivadaut Begrimat Nezakim [82].

15. Another solution referred to in case law and the literature is the risk evaluation test. This test involves an evaluation of the odds of a particular event occurring. The rate of compensation is then determined as a function of those odds. This test was applied by the House of Lords in England when it addressed the subject of causal connection for cases involving speculation and hypotheses. The court considered an appeal of ruling by the Court of Appeals (Davies v. Taylor (1972) [61]) concerning a widow claiming compensation after her husband’s death in an accident. The couple was separated, but she claimed that they had been planning to get back together and that his death prevented that.

The House of Lords applied the risk evaluation test, preferring it to the balance of probability test. I agree with the conceptual basis for this preference, and it seems applicable to a case such as ours. The House of Lords took the view that the requirement that facts be proven based on the balance of probability is intended to establish the truth of facts that occurred in the past, not hypothetical facts which never happened. It is not applicable with respect to a hypothetical fact that might have occurred at a future date after the tort was committed, but which did not actually occur. The balance of probability test is not suited for proof of this kind of fact, since there is no way of establishing any factual finding in that regard. We cannot decide the truth or falsity of hypothetical facts, because deciding whether there is truth in a factual claim means deciding whether or not the fact existed. That is not the case with respect to a hypothetical fact that did not occur, and that can never occur. When there is a reasonable expectation of an occurrence even though the chances of its occurrence are less than balanced [less likely than not – ed.], this chance must not be ignored – unless it is negligible; the chance must be evaluated, and compensation should be determined accordingly. In this context, Lord Reid (joined by Lord Simon, Viscount Dilhorne, Lord Morris, and Lord Cross) wrote the following:

No one can know what might have happened had [the husband] not been killed.

… But the value of the prospect, chance or probability of support can be estimated by taking all significant factors into account … The court … must do its best to evaluate all the chances, large or small, favorable or unfavorable.

… [W]e are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance...

Id. at 838 (emphasis added – T.S.C.).

And further on:

[Thus], all that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent, sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.

Id at 838 (per Lord Reid) (emphasis added – T.S.C.).

Referring to the Davies [61] judgment, scholars Powers & Harris wrote the following:

The House of Lords held that this approach [i.e., the balance of probability] was erroneous. Where the issue is whether a certain thing is or is not true, or whether a certain event did or did not happen, then the court must decide that issue one way or the other. If there is a balance of probability in favor of it having happened, then for legal purposes it is proved that it did happen. In the instant case, however, whether the widow would or would not have returned to her husband was not a past factit lay in the future at the material time (the time of the husband’s death). Therefore, the chance of reconciliation had to be evaluated ... It is clear ... that the principle of the evaluation of a chance applies ... where events ... lay in the future at the date of commission of the tort, but cannot at the trial date be established as past or present facts because the circumstances make this impossible ... [T]he death of the husband which gave rise to the cause of action itself prevented a reconciliation from ever occurring ...

Powers & Harris, supra [91] at 403-04.

The final ruling was that the plaintiff did not even discharge the burden under the easier test of evaluating the chances, having failed to show that there was a real chance - as distinct from a negligible chance - that she would have returned to her husband had he remained alive.

16. This Court made similar comments in CA 591/80, Chayu v. Ventura (hereinafter - Chayu [33]). Referring, by way of affirmation, to the House of Lords judgment, it adopted its test of evaluation of chances in an action for damages. It must be stressed, however, that the evaluation of chances rule was established by the House of Lords for proof of the causal connection as a component of liability in torts cases, while in the Chayu case, Justice Bach adopted it in order to prove the causal connection required for proof of damage - loss of income:

In this context a clear distinction must be made … In an ordinary civil case, when the court considers a factual claim regarding what happened in the past, the party bearing the onus of proof must prove his or her story to a degree of persuasion exceeding 50%. Otherwise the court will assume that the alleged fact never actually occurred, and will altogether ignore the argumentation relying on it….However, when the claim relates to the chances of a particular event occurring in the future, which in the nature of things cannot be proved with certainty, it is only reasonable that the court should evaluate this chance and give it expression in its ruling, even if it estimates its persuasive value at less than 50%.

Id. at 398-99.

17. Readiness to adopt the method of proof by evaluation of chances was also expressed in the Vaturi [3] ruling at 191:

Having proved damage, and assuming that they succeed in proving breach of duty, the court will be able to determine, by way of a judicial assessment, whether it was the breach of the duty which caused the damage, and to what extent; this means that it may also be possible to make a probability assessment which can serve as a basis for charging the defendants for only part of the liability…. (Mazza, J.) (my emphases – T.S.C.).

Justice Mazza explains his position as follows:

Causal connection for our purposes does not require a finding according to the accepted tests of causality. These tests are required for (full) attribution or (absolute) negation of the defendant’s liability for the plaintiff’s injury. In other words: according to these tests, there is no partial causal connection, and the question to be decided is whether or not a causal connection existed, a situation of “all or nothing” … These tests enable decisions based on the balance of probability test, but they are inappropriate for cases in which the court faces the need to make a hypothetical assessment about how a certain patient would have behaved if the doctors had advised him or her in advance of the risks and prospects inherent in a particular medical treatment.

Id. at 19 (my emphases – T.S.C.).

A similar approach was expressed in CA 437/73 Aik (minor) v. Dr. Rosmarine [34].

Justice Barak (as his title was then) left for further examination the question of applying the ordinary probability test to prove a hypothetical occurrence

I wish to leave the following question pending: whether the rule shouldn’t be that where proof of probability is not related to proving a fact but rather to proving a hypothetical occurrence, the regular balance of probability is not required.

CA 145/80 Vaknin v. Beit Shemesh Local Council [35] at 144.

Balance of Probability, Transferring Burden of Proof, Assessing Chances and the Differences Between Them.

18. The various solutions regarding the fundamental problem of proving causal connection in cases involving hypothetical assumptions illustrate the difficulty inherent in leaving such cases to the authority of the ordinary rules of proof based on the balance of probability.

In the nature of things, a human decision about whether or not to consent to medical treatment is a direct consequence of numerous influences and varied considerations: the type of operation which the patient must undergo; the degree of necessity of the operation or medical treatment; the attitude of the patient to the risk – fear and revulsion, indifference or sympathy; the gravity of the patient’s medical condition; the possibility of choosing another treatment, different in quality and in the risks involved; the degree of the patient’s trust in the doctor and in the information given to the patient by the doctor; the patient’s willingness to rely on the doctor, and other, similar considerations. It is impossible to determine which of the considerations is the principal focus in the decision-making process. The weight and importance of the considerations when making a decision are not constant; they may change according to the character and inclination of any person considering whether to consent to or to refuse the performance of an operation on his or her body. It is impossible to determine the weight and importance that may attach to the numerous considerations that inform a person’s decision to consent to or to refuse the operation (the question of whether the appropriate test for examining the considerations is objective, subjective or a combination thereof will be discussed later on).

19. When the plaintiff bears the burden of proof, the balance of probability test places the risk of failure of proof squarely on him or her. Failure to substantiate the plaintiff’s claim by proving that the balance of probability indicates the existence of a causal connection means that the action will be rejected outright. Success in proving the plaintiff’s claim based on the balance of probability means that the doctor will be fully liable for the injuries which are causally connected to the doctor’s failure to obtain the patient’s consent. “After all, there is no half-way causal connection.” Vaturi [3] at 191 (Mazza, J.). The same applies when the burden of proof is transferred to the defendant, who must discharge it based on the balance of probability test. The same disadvantages occasioned by placing the burden of proof on the plaintiff based on the balance of probability test await the defendant, when the burden of proof is transferred to him or her, according to the same test. This solution transfers the plaintiff’s difficulties to the doctor, who now confronts the same difficulties faced by the patient who attempted to prove his or her claim. Transferring the burden of proof to the defendant might therefore lead to accepting claims which would otherwise have been denied. In both cases, the situation is one of “all or nothing,” and the test of transferring the burden of proof in either direction is not appropriate for proving a hypothetical human occurrence which never occurred in reality.

20. It would appear that in a situation which precludes proof of the causal connection between hypothetical occurrence and injury, other than on the basis of conjecture regarding assumed human behavior which never actually occurred, neither the test of balance of probability on the one hand, nor transferring the burden of proof on the other, is satisfactory. These tests do not provide the judge with the best tools for adequately protecting and balancing all the relevant interests.

This is particularly true of the doctor-patient relationship. This relationship consists of a delicate, fragile web of special trust, requiring an assessment of which is the most appropriate rule for imposing liability on the doctor. The doctor should be neither under-deterred nor over-deterred. Under-deterrence might be a by-product of a test of proof based on balance of probability, in view of the inherent difficulties confronting the patient, rendering it almost impossible for him or her to prove the claim. The plaintiff’s failure to prove his or her claim due to evidentiary difficulties, even when the claim is justified and substantial, compromises appropriate protection of the patient’s right and the inculcation of the duty of care owed by the doctor to the patient. On the other hand, the doctor’s failure to prove his or her defense due to similar difficulties compromises the protection of the doctor’s right not to be held liable for damage that he or she did not cause. Furthermore, transferring the burden of proof to the doctor who is sued might cause over-deterrence which could jeopardize the doctor’s activities, leading the doctor to practice defensive medicine.

In my view, in cases where the determination concerning the causal connection is not a determination of facts but rather the choice between hypothetical possibilities of human behavior, the appropriate test is that of evaluating the chances, under which the chances of a hypothetical event occurring are evaluated; this is the appropriate test to be applied, as a matter of policy as well.

In view of its flexibility, the test of evaluating the chances enables the imposition of relative and partial liability, and it precludes a situation where the doctor either is released from all responsibility or bears full responsibility in a situation of uncertainty. It would appear, then, that the above complex of considerations leads to the conclusion that proving the causal connection according to the evaluation of chances is the most appropriate and balanced solution which can provide an appropriate response for special situations of uncertainty in cases of this sort.

The Evaluation of Chances Test in Various Fields of Law

21. The chances evaluation test and preferring it to the balance of probability test are not foreign to our legal system, having served us in a number of fields. Accordingly, where it is necessary to prove damage, proof according to the balance of probability is not required, and proof of a lesser degree is sufficient. See e.g. FH 24/81 Honovitz v. Cohen [36] at 420-21:

It is necessary to examine … the chances for the existence of reliance in the future, were it not for the accident. These chances cannot be established based on the balance of probability but on the extent of reasonability. Therefore, even a chance of less than fifty percent will be taken into account, provided it is not zero or speculative (see Davies v. Taylor (1974)).

See also CA 20/80 Fleisher v. Laktush [37] at 628-29 and CA 410/83 Petrolgas Israeli Gas Company (1969) Ltd .v. Kassero [38], where the Court stated:

The intention is not that the plaintiffs had to prove, at the level of persuasion required in a civil proceeding, that the deceased had already planned or prepared to return to his country of origin; it would have been sufficient for them to prove the existence of such a possibility, provided that there was a real chance and it was not just a hypothetical.

Id. at 514.

A similar approach was taken with respect to proving the loss of chances of a hypothetical [physical – ed.] recovery. Justice Levin (as his title was then) wrote:

It could be said that determining a risk is like determining a fact that occurred in the past, and in that respect, a finding can only be established on the basis of the balance of probability …. In my opinion, the process involved is not one of determining facts in the regular sense, where the tendency is to determine what did or did not actually happen; rather it is a process of assessing “what would have happened if….”

CA 231/84 Histadrut Health Fund v. Fatach [39] at 319.

The same rule applies to proving a causal connection between hypothetical occurrences in claims based on breach of contract, where the alleged damage is loss of an anticipated transaction. In this context, Justice Barak (as his title was then) wrote that “in principle, chances can be evaluated, and even a chance of less than fifty percent warrants compensation…” CA 679/82, Netanya Municipality v. Tzukim Hotel Ltd. [40], par.8. See also CA 355/80 Nathan Anisivmov Ltd v. Tirat Bat Sheva Hotel Ltd [41].

 

Evaluating Chances as the Basis for Liability and the Principle of Blame

22. Although the chances evaluation test serves as proof of damage, it has not made its mark with respect to proving liability. The primary reason for this apparently lies in the perception that proving causal connection as one of the foundations of liability, according to the balance of probability, involves the concept of blame, and settling for the lesser proof than the balance of probability opens the door to imposing liability where no blame exists: The problem was addressed by Englard in his book:

It appears that the local courts are not inclined to relax the demand for the regular degree of proof, even regarding hypothetical causality. This trend in the local rulings is commensurate with their general approach in the field of liability in torts, typified by full insistence on the concept of blame in torts.

[74] at 230.

It seems to me that an approach demanding that, in every case, the plaintiff must provide proof based on the balance of probability test is not sufficiently flexible, and it does not address the problematic aspects of these situations which justify such flexibility. The evidentiary difficulties of proof constitute obstacles for the plaintiff who created a situation in which we must deal with hypotheses concerning the patient’s possible response. As such they justify the adoption of rules that prevent the dismissal of a substantial claim just because of the balance of probability test. Addressing the issue of placing the burden of proof on the plaintiff:, the Canadian Supreme Court stated that:

To require [the plaintiff] to do so would be to ask her to prove a hypothetical situation relating to her doctor’s conduct, one, moreover, brought about by [the defendant’s] failure to perform its duty.

Hollis [72] at 638-39.

Even in our system, rules have been developed within the rules of evidence relaxing the causal principle of “all or nothing.” One of them is the transfer of the burden of proof. In this context, Justice Levin (as his title was then) wrote:

In a legal system that, for a case of partial injury, operates on the basis of the causal principle of “all or nothing,” there is occasionally no option other than to develop evidentiary rules which soften that principle by transferring the burden of proof in certain cases to the defendant, in order to prevent unjust results.

CA 231/84 [39] at 320.

Evaluating the Chances - in Practice

23. One cannot ignore the fact that the balance of probability test creates uniformity and relative certainty, and that it is not easy to evaluate chances. However, when evaluation is possible, or when we find ourselves in a “tie” situation in which the scales are balanced, the plaintiff will receive a proportional part of the compensation for the damage incurred by means of imposing partial and proportional liability on the defendant.

It will be claimed that recognition of a burden of proof that is less than the balance of probability entails the risk of flooding the courts with baseless claims. Our response would be that arguments of the “flooding risk” have often been brought to the court’s attention, meriting little, if any, weight, both because the reality was a far cry from the predictions and also because the courts have found ways of dealing with claims which should never have been submitted in the first place. Furthermore, in principle, the plaintiff should be required to prove that there is a real chance that if the doctor had not been negligent in obtaining informed consent, the plaintiff would not have consented to undergo the operation. An insubstantial and minimum chance is not sufficient (de minimis non curat lex) to entitle the plaintiff to proportional compensation. In adopting the evaluation of chances as a test for proof, we do not intend to abandon the principle of blame and to entitle the plaintiff to relief on the basis of any proven possibility, however remote. This extent of proof is intended to overcome the insurmountable difficulties in presenting proof but not to create a right to compensation out of thin air. The House of Lords said in this matter:

[O]n an application of the de minimis principle, speculative possibilities would be ignored... To my mind the issue, and the sole issue, is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than “substantial” on the one hand, or “speculative” on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective.

Davies [61] at 838 (Lord Reid).

In such cases, so long as the chance... was substantial or fairly capable of valuation the court ought, I think, to set a value on it even though it was lessand possibly much lessthan a 50 per cent chance.

Id. at 847 (Lord Cross of Chelsea).   

See also Justice Bach’s comments in the Ventura case [33] at 399:

When the court is convinced that the injured party had a chance … and this chance had been withheld from him or her due to the defendants’ actions, it would be only just for the court to give expression to the frustration of this chance in its judgment, provided that it has been convinced that the chance in question is not negligible, remote, or speculative.

Application of the Chances Evaluation Test: Subjective, Objective or Combined

24. In adopting the chances evaluation test in order to prove causal connection in our case, we must fill it with content. The problem is how to determine the degree of probability that the appellant would have made a particular decision, had her informed consent been obtained. Three possible tests present themselves: the subjective test, the objective test, or a combined test consisting of both. The subjective test is accepted on the European continent and in New Zealand and England. Giesen [86] at 347; Bolam v. Frien Hospital Management Committee (1957) [62]; D. Manderson, Following Doctors’ Orders: Informed Consent in Australia [105]. This test examines how the specific patient would have responded and what the patient’s decision would have been, had he or she received complete information. The objective test, accepted in Canada and various part of the U.S. (Riebl [67]; Canterbury, [48]), examines how a reasonable patient would have responded and what his or her position would have been, had he or she received complete, full information. The combined test is also used in Canada, and it examines how a reasonable patient would have responded, in that specific patient’s circumstances, and what the patient’s position would have been in relation to the proposed treatment if he or she had been given full information. See Giesen [86] at 343; M.A. Somerville, Structuring the Issues in Informed Consent [106]. My colleagues, Justice Beinisch and Justice Or, described these tests, one emphasizing the subjective test and the other stressing the objective test. Personally, I think that the combined test is the most appropriate.

25. Each of the aforesaid tests employs a different method for protecting the relevant values and interests. The subjective test provides maximum protection of the patient’s interest in ownership of his or her body and ensures broader protection of the autonomy of the patient’s will. This test is lenient with the patient. The objective test provides less protection of these interests, since it is less concerned with the wishes of the specific patient, focusing rather on the wishes and considerations of a reasonable patient. This test is lenient with the doctor. The combined test strikes a balance between the other two. Choosing either of the first two tests affects the manner of enforcing the doctor’s duty of care in receiving informed consent. Choosing the objective test may signal to doctors in general that failure to give information of importance to a specific patient does not impose any liability and that they therefore may refrain from giving it. Choosing the subjective test forces doctors into the difficult position of having to consider the patient’s subjective characteristics, even where they are characteristics which would not reasonably have been considered and which are not typical of a reasonable patient. The objective test minimizes the need to cope with the problematic testimony of the plaintiff, even when it is not tendentious and is given in good faith. At the same time, it cannot be said that the possible response of the reasonable patient accurately reflects the possible response of a specific patient who is not necessarily the reasonable patient. These difficulties, and considerations similar to those listed above, tip the scales in favor of adopting the combined test; its subjective aspect ensures that weight is attached to the special circumstances of the patient, the patient’s character, concerns, ability to weigh the considerations specific to himself and herself, and the like, while its objective aspect ensures that liability is not imposed on doctors in situations in which refusal to accept treatment could be considered an unreasonable deviation.

Application of the Law in Our Case

26. It appears to me that in applying the combined test, it is difficult to reach a conclusion as to whether or not Appellant would have agreed to perform the operation on her shoulder. This is similarly true of any other test (objective or subjective), since we have no real information, and we have nothing to rely on apart from conjecture. To illustrate the dilemma, it is sufficient to review the arguments presented in the judgments of my colleagues, Justice Or and Justice Beinisch. Both of them examined the question of causal connection using the combined test and in practice applying the balance of probability rule, but they reached opposite conclusions. Personally, concerning our case, I think it neither possible nor appropriate to decide on the basis of the balance of probability, be it on the factual level, the legal level, or on the level of proper policy for the examination of such cases.

Regarding our case, I do not believe that the events of the past provide any indication as to what the appellant would have decided, if her informed consent had been sought, and if the relevant information had been given to her for the purpose of choosing whether to perform the operation, in circumstances appropriate for making a decision. The question of what the appellant’s decision would have been if the doctor had fulfilled his duty is a hypothetical assumption about human behavior that never occurred, and it requires formulating a decision based on various and varied considerations. The most that can be said is that appellant might have agreed to the operation, and by the same token that she might have refused. This being the case, it is appropriate to award the appellant compensation for half the damage caused to her as a result of the operation, in accordance with the chances evaluations test.

Compensation for Damage Due to Violation of the Right to Autonomy

27. Having concluded that appellant should be compensated for the bodily injury caused to her, a further question arises. Given that Appellant’s informed consent to perform the biopsy was not received, is she entitled to compensation under the tort of violation of the right of autonomy? And, assuming she is, should such compensation supplement the compensation for her bodily injury, replace it, or be awarded independently, and what is the appropriate rate of compensation for such damage?

In his opinion, my colleague, Justice Or, conducted an extensive analysis of the general elements of a person’s basic right to autonomy and specifically regarding a person’s sovereignty over his or her body in the context of consent to medical treatment. He concluded that violation of autonomy should be viewed as a separate head of damage and awarded compensation to appellant under that head. My colleague, Justice Beinisch, also considered the importance of this basic right but stated that the appellant is entitled to compensation for the full damage caused to her, and that she should not be awarded additional compensation under the head of violation of autonomy. Both of them provided extensive reasoning for their positions, and indeed the issue and its adjudication are far from simple. Having given the matter extensive consideration in all its relevant aspects, I concur with the position of my colleague, Justice Or, and I shall add a few comments of my own.

The Right to Autonomy and Informed Consent to Medical Treatment

28. The value of a person’s autonomy is among the primary and fundamental values in our legal system, as in other legal systems. The right to autonomy means that one is free to shape one’s will as one deems fit, to voluntarily and independently determine one’s lifestyle, to make decisions regarding actions and to have a certain degree of control over one’s fate. On the conceptual expressions of the term autonomy, see J. Raz, Autonomy, Toleration and the Harm Principle [107] at 314 and J. Katz, Informed Consent - Must it Remain a Fairy Tale? [108] at 83.

29. The right to autonomy is anchored in the recognition of a person’s value and dignity – values that are entrenched in the Basic Law: Human Dignity and Liberty. This is a “framework right” – in the language of President Barak – constituting, as a matter of fact, a flowing spring for the complex of various rights. Barak [76] at 357-361. The right to autonomy is also based on the right to privacy. Basic Law: Human Dignity and Liberty; Protection of Privacy Law, 1981. A patient’s right to freedom of decision with respect to his or her body, health, and receipt of medical treatment derives from the patient’s right to autonomy. See the Patient’s Rights Law, secs. 1 and 13. Some believe that by virtue of a person’s sovereignty over his or her body, that person has the right to object to an operation designed to save his or her life and to refuse treatment, even if doing so endangers the patient’s life. Airedale NHS Trust v. Bland (1993) [63] at 860, 889, in the judgment of the House of Lords.

This approach was recently affirmed in the Court of Appeals ruling in St. George’s Healthcare NHS Trust v. S (1998) [64] at 685-86. The case concerned a pregnant woman who refused to undergo a Caesarean operation, deciding to give birth naturally, despite her medical condition which created a risk to her fetus, all of which she was aware. At the hospital’s request, an order was given ex parte permitting the performance of the Caesarean operation without obtaining the woman’s consent. The operation was performed, and the woman filed a complaint in court against the decision permitting the performance of the operation on her body. The court ruled that performing the operation without her consent constituted assault, and that the declarative order issued previously could not serve as protection against a claim for damages.

The Rise of Autonomy and the Gradual Decline of the Traditional Approach

30. Consent to perform medical treatment is one of the outstanding situations which test the degree of protection provided by law for a patient’s autonomy. A person’s right to autonomy in receiving medical treatment has not always been taken for granted. The centrality of a person’s right to autonomy in making decisions concerning medical treatment, and the rejection of the traditional approach which gave preference to the doctor’s control of the patient’s body over the patient’s control of his or her own body, are concepts that have been emphasized anew over the past few decades. Informed consent to medical treatment has been recognized as a tort doctrine in the judgments of the Appeals Court of the State of California since 1957. C.J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy [109] at 388-89 and citations therein.

The historical perception, still adhered to by some today, is based on the principle that a person in need of medical treatment waives his or her will and autonomous status from the moment of requesting assistance from the doctor, placing his or her body and health in the doctor’s hands along with the authority to decide on the treatment to be given. According to this perception, the doctor has dominance over the patient’s body, and the doctor makes all the decisions. This approach derived, inter alia, from the gap in knowledge that separated the doctor from the patient, given that the doctor possesses the professional and scientific tools and skills to make the appropriate decision about the medical treatment required by the patient. On this point, Shultz says:

…the patient was seen as making only one key decision, to place herself in a given doctor’s care, thereby delegating all subsequent authority to the doctor. Such a model assumed that the patient lacked the technical ability to make medical decisions, and that expertise justified the doctor’s making decisions on the patient’s behalf.

Shultz [94] at 221.

31. The perception giving primacy to the doctors’ opinion received expression in the English judgment Bolam [62], which established that the criterion for violating the duty of care applicable to the doctor to give the patient information on his medical treatment was based on “medical judgment.” This principle was applied by a majority opinion of the House of Lords in Sidaway v. Governors of Bethlem Royal Hospital (1985) [65], with Lord Scarman dissenting. The majority ruled that the question of whether failure to inform a patient of the risks entailed in performing a treatment may be considered negligence by the treating doctor is governed by the principle established in Bolam [62], under which giving a patient medical information and determining the extent thereof is a matter within the scope of the doctors’ medical expertise. The principle established in the judgment and its progeny was the subject of extensive criticism. See J. Keown, Burying Bolam: Informed Consent Down Under [110] at 17. Lord Scarman’s dissenting opinion was adopted as the binding rule in the ruling of the Australian Supreme Court in Rogers [43] which rejected the Bolam principle [62]. According to this opinion, the criterion for examining the duty of care and the extent of the duty to disclose information will be established by the court according to the law’s perception of the doctor’s duties in this matter, paying attention to the patient’s right to sovereignty over his or her body, and not only according to a medical opinion concerning the custom and accepted practice in medicine at a given time. The Australian Supreme Court said:

…it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.

Rogers [43] at 52.

This principle was also adopted in the judgment of the Federal Appeals Court in the District of Columbia in the case of Canterbury [48], which stated:

… we [cannot - T.S.C.] ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.

Id. at 784.

This statement shows that in recent decades there has been a decline in the popularity of the traditional approach - based on a paternalistic attitude - in favor of the trend that focuses less on the treating doctor and more on the patient, who has been recognized as the central actor in formulating the decision on performing medical treatment on his or her body. However, changing the center of gravity and placing the patient at the focus of the decision making process is a slow procedure, to be done step-by-step.

32. The trend toward regarding the patient as the focus of medical activity originated in growing awareness of basic human rights and the need to protect them in all areas of life. This trend also stems from the transition to modern and developing practices of medicine. Medical information is available to all, and therapeutic alternatives are at the disposal of all patients. These products of modern medicine have also contributed to displacing the treating doctor from the position of exclusive advisor in the choice of appropriate medical treatment. This perception is apparently the assumption underlying the provisions of Section 7 of the Patient’s Rights Law, which establishes the patient’s right to a second medical opinion before deciding to undergo any medical treatment.

Preferring one method of treatment over another may involve various complex considerations which the patient weighs in accordance with his or her desires, stances, concerns or hopes. See Shultz [94] at 221-22. The prevalent contemporary view is that giving a patient medical information prior to performing a medical procedure on his or her body is no longer considered an activity within the exclusive expertise of the doctor, like the determination of diagnoses and prognoses, and accordingly, there is no justification for preferring the professional-medical viewpoint rather than the patient’s individual approach. The Australian Supreme expressed this view in Rogers [43]:

[N]o special medical skill is involved in disclosing the information, including the risk attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for the purpose, having regard to the patient’s apprehended capacity to understand that information.

Id. at 52.

This was also Shultz’s view:

[T]he more intense and personal the consequences of a choice and the less direct or significant the impact of that choice upon others, the more compelling the claim to autonomy in the making of a given decision. Under this criterion, the case for respecting patient autonomy in decisions about health and bodily fate is very strong.

[94] at 220.

33. The duty of those treating to receive the informed consent of the patient for the medical treatment is primarily intended to protect the basic right of a person in need of medical treatment to autonomy over his or her body and will. See Justice Cardozo’s opinion in Schloendorff [53]; CA 3108/91 [1] at 507; LCA 1412/94 [18] at 525. The decision whether to receive a particular medical treatment, if at all, should be a balanced, voluntary, and independent decision of the person receiving the medical treatment.

[I]t is established that the principle of self-determination requires that respect must be given to the wishes of the patient ... the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests...

Airedale [63] at 866 (Lord Goff of Chieveley).

 

Information is Critical in Order to Reach an Autonomous Decision

34. The patient’s wishes to perform or refuse the treatment cannot be informed and intelligent unless they are based on the information necessary for making the decision in question. See Powers and Harris [91] at 322. Where the patient is not aware of the risks, prospects and implications of the treatment about to be undergone, the existence of alternative treatments, and the implications thereof, the patient’s wishes cannot be regarded as his or her own, nor can the choice to accept or refuse treatment be regarded as a real choice. See Canterbury [48] at 780. Accordingly, failure to give the patient information or giving the patient partial and incomplete information is tantamount to violating a person’s right to autonomy over his or her body, since it detracts from the patient’s ability to formulate an informed and intelligent decision about whether to accept the medical treatment.

The Doctor – Patient Relationship

35. The patient’s dependence on the doctor and their respective interests creates a great deal of dualism in the relationship. On the one hand, the doctor, whose goal is the patient’s health, frequently believes that he or she best knows which treatment should be given to the patient and how the patient’s illness can be cured. On the other hand, the patient might examine the same facts weighed by the doctor through a slightly different prism, in the framework of which he or she may consider a variety of subjective factors, including the quality of life he or she may expect following the success or failure of the treatment and similar considerations – which are not always taken into account by the doctor. In that situation, the patient’s right to autonomy in making the decision concerning medical treatment, as an expression of a person’s right to dignity, is a value worthy of protection. This means recognition of the patient’s independence and status as a participant in the decision making process. The following comments of D. Feldman give expression to this view:

The notion of autonomy is tied to that of dignity. In order to develop and exercise a capacity for self-determination, one needs to take oneself and others seriously as moral agents. One aspect of dignity is self-respect, which … includes respect for one’s own and other people’s moral rights…

D. Feldman, Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty [111] at 54.

The scholars Twerski & Cohen made similarly appropriate comments:

The right to participate in, and indeed, make important decisions concerning one’s health is a critical element of personal autonomy … The legal system should protect these rights and provide significant recompense for their invasion.

Twerski & Cohen, supra [96] at 609.

Recognition of the Right to Compensation Due to Violation of Autonomy: Framework of Doubts and Critical Arguments

36. The critical nature of the information and its centrality in the patient’s autonomous decision-making process requires us to consider whether the law protects the patient’s right to receive the information that is essential to his or her case, and to decide his or her fate with respect to the medical treatment, what that protection is, and whether the extent of the existing protection adequately satisfies the patient’s right to autonomy, including the right to receive information.

A review of the judgments rendered in various countries worldwide indicates that there is a real gap between judicial rhetoric which speaks in favor of the right to autonomy and its operative expression, which lacks effect:

…. judges have made impassioned pleas for patient self-determination, and then have undercut them by giving physicians considerable latitude to practice according to their own lights.

J. Katz, The Silent World of Doctor and Patient [93] at 49.

One of the obstacles to the recognition of the right to compensation due to violation of autonomy is that most courts in the various legal system consistently demand proof of a causal connection between breach of the duty to provide information regarding the risks of performing a medical procedure and the real damage caused by the medical treatment. The courts have consistently ruled that in order for the plaintiff-patient to succeed in a claim filed against a doctor for breach of the duty to give information and negligence in obtaining informed consent, the patient must prove that the risks involved in the treatment –about which the patient was not given information – actually materialized and caused him or her injury. See Canterbury [48] at 790.

U.S. courts have not recognized the duty to give medical information to the patient as independent grounds for compensation, based exclusively on the breach of the duty to give information, independent of the existence of real damage caused by the breach of the duty. In fact, the courts did not even recognize the breach of the duty as constituting a separate head of damage within the framework of negligence. Jones [109] at 394-95, 426.

In Israel as well, the violation of autonomy has not been recognized as constituting grounds for an action or a separate head of tort for which compensation is due. Should it be recognized as such? My colleague, Justice Or, answered the question in the affirmative, and I concur with his opinion.

37. The requirement of the existence of a causal connection between the breach of the duty to give medical information and to obtain informed consent and the real damage caused by the medical treatment has restricted the award of compensation to real, physical or mental, injury caused to the patient due to the medical treatment. This demand has been the subject of scathing criticism, to the effect that the demand for causal connection undermines the theoretical and conceptual justification of the requirement of informed consent to performing a medical procedure. This position found expression, inter alia, in the following statement:

… courts have tended to impose causation requirements that appear to conflict with the underlying theoretical justifications of the informed consent doctrine itself.

M.A. Bobinski, Autonomy and Privacy: Protecting Patients from their Physicians [112] at 343.

Violation of the right to obtain information occurs as soon as the doctor breaches his or her duty. It inheres in the tortious behavior as such. It therefore seems that the causal connection – constituting the basis for liability for negligence – is an integral element of the doctor’s breach of duty. To that effect, it is immaterial whether the negligence relates to the breach of duty or the violation of the autonomy. Consequently, on a practical level there is no justification for making the protection of the patient’s right to autonomy contingent upon proof of the causal connection between the breach of the duty and the actual damage caused by the medical treatment.

38. As mentioned above, there is no unanimity concerning recognition of entitlement to compensation due to violation of the right to autonomy where there is no causal connection with the actual injury caused by the failed medical treatment. According to those who believe that the right to compensation due to violation of autonomy should not be recognized, the information given to the patient concerning the risks involved in performing medical treatment contains technical details that are within the doctor’s field of expertise, and the patient does not have the appropriate tools, the required skills, or the knowledge to properly understand and appreciate such information. As proof, they point to many cases in which patients prefer that the doctor advising them on what medical treatment is best decide for them which procedure should be performed. Some even argue that a treating doctor convinced of the wisdom of the proposed method of treatment might present the information in a manner that leads the patient to adopt the proposed treatment which the doctor considers to be the most effective in the circumstances. This might make the consent superfluous since, in any case, it is not informed consent. See Jones [109] at 406.

These arguments represent a paternalistic approach, predicated on a perception of the patient’s inability to process and weigh information with which the patient is not conversant, patients’ fears about taking responsibility for their medical fate, and the doctor’s ability to maneuver the patient into following the doctor’s lead. These arguments contribute considerably to preserving the doctor’s superior status vis-à-vis the patient in the decision-making process. Indeed, there are certainly cases in which patients may be about to make a decision regarding medical treatment, without having properly understood the medical information, or they prefer that the doctor decide for them, or they make ostensibly autonomous decision based on latent persuasion made in good faith by the doctor. Nonetheless, I do not think that negating the recognition of the right to compensation due to violation of autonomy is the correct response to these arguments. The response should be to increase patients’ awareness of their right to decide autonomously and to emphasize the doctors’ ethical duties, such as their duty to explain the medical information in simple language that is clear to every particular patient in accordance with his or her circumstances. In this context, one may adopt a range of methods that will enable the patient to absorb and process the medical information given. See Natanson v. Kline (1960) [54] at 1106; Cobbs v. Grant (1972) [55] at 11; Jones [109] at 412-14.

39. Another difficulty, which should also be noted, is the one raised in her opinion by my colleague, Justice Beinisch. My colleague referred to the concern that the attempt to strengthen the right to autonomy will paradoxically lead to its weakening, since the courts might avoid confronting the need for the complex determination of the causal connection so essential for awarding compensation for bodily injury, instead remaining content with nominal compensation based on violation of autonomy. Personally, I do not think that this concern is sufficient to negate proper compensation under this head of damage, especially since compensation for violating autonomy – as explained below – should not replace compensation for bodily injury, but should be in addition thereto.

40. Summing up, recognition of the right to compensation due to violation of autonomy protects the interest of patient participation in the decision-making process in his or her case, as well as the patient’s independence as an entity possessing a will and not just as an object for the performance of a medical procedure. Protecting a person’s right to receive the relevant information about his or her case is vital to assuring the right to autonomy in making decisions about medical treatment. This is the basis for the doctor’s duty to obtain the patient’s informed consent concerning the patient’s treatment, and when this duty is breached, the patient deserves compensation for the violation of his or her personal autonomy.

Despite the existence of various grounds and considerations indicating the difficulties inherent in recognizing the right to compensation due to violation of autonomy, it appears that they can be appropriately dealt with and adequately resolved as indicated above, so that these arguments do not inveigh against the conclusion that the right to compensation for violation of autonomy should be recognized.

Compensation for Violation of the Right to Autonomy: Independent Grounds or Head of Damage?

41. What is the appropriate legal domain for the protection of a patient’s right to autonomy over his or her body?

A number of scholars have expressed the opinion that anchoring the protection of the right to autonomy under the damage head of violation of autonomy as part of the offense of negligence does injustice to the protection of the right to autonomy, maintaining that it is preferable to anchor the protection – if at all – as an independent cause for action which does not require the existence of a causal connection between the violation of autonomy and the actual injury as a condition for imposing liability. See N.P. Terry, Apologetic Tort Think: Autonomy and Information Torts [113] at 193-94; Bobinski [112]. These scholars maintain that with respect to negligence, the patient may succeed in his or her claim only if he or she proves that the doctor was negligent in obtaining the informed consent, according to tests prevailing in the context of the tort of negligence, which require the application of objective criteria that do not give a full answer to the patient’s right to autonomy. Despite that argument, I think that protection of the right to autonomy as part of the offense of negligence could constitute appropriate protection, since it takes into account the heavy burden imposed on the doctors to ensure the patient’s participation in all respects, on the one hand, and the patient’s interest in receiving full information concerning his or her case, on the other. Accordingly, it would appear that the legal domain of negligence – as a means for protecting the patient’s right to autonomy – could constitute an appropriate balance between the conflicting interests.

42. Indeed, it is possible to protect a person’s right to autonomy in general, and to receive medical information in particular, even within the framework of an action based on violation of a basic right of supreme importance, which is akin to a constitutional offense. The development of grounds for a claim based on violation and infringement of basic rights is a complex issue, just now emerging in the Israeli legal system. Recognition of the existence of constitutional grounds for a claim raises a spate of difficulties and questions which have not yet been clarified and discussed in court precedents and scholarly writings, such as which rights should be protected on constitutional grounds; what are the tests for protecting these rights; what are the appropriate remedies for violation of a constitutional right, and so on. At this stage, when these issues have yet to be discussed in depth, it seems appropriate to take another track suited to the solution of the problem confronting us. We can content ourselves with the determination that a person’s right to autonomy should be afforded protection in the legal domain of an independent head of tort separate from those known to constitute negligence. The decision on the weighty question of whether the right of autonomy should even be protected as an independent cause of action ought to be left for an appropriate occasion. See Barak [76] at 681.

Compensation for Physical Injury and for Violation of Autonomy: the Appropriate Relationship Between Them

43. What is the appropriate relationship between compensation granted under the various heads of tort recognized as part of the offense of negligence and compensation under the damages head of violation of the right to autonomy, where the imposition of the liability and the compensation are based on the doctor’s failure to obtain informed consent?

When the doctor’s negligence, constituting the basis for compensating the patient, is expressed by failure to obtain informed consent to perform the treatment, the question arises whether the compensation award for bodily injury is also compensation for violation of autonomy, meaning that by paying separate and cumulative compensation for violation of autonomy, one is, in practice, paying double compensation.

The fact is that there is only instance of negligent behavior constituting the basis for imposing liability on the doctor, consisting primarily of the doctor’s failure to receive informed consent prior to performing the medical procedure. This negligent behavior generates various types of damage, on different levels. The violation of the right to autonomy may find its expression on different levels, both in inherent and direct but intangible damage, which is a direct consequence of the actual violation of the right, and in indirect but tangible damage. Bodily injury may be caused because of the failure of the treatment, which would never have been performed on the patient if his or her consent had been sought and refused. Intangible damage may be the result of the failure to obtain informed consent, and denial of the patient’s right and ability to decide autonomously about what should be done with his or her body.

44. In my opinion, the head of tort concerning violation of autonomy should be viewed as an independent head of damage in all respects, to be added to the compensation due for bodily injury or other damage, and should not be considered a substitute. These are separate heads of damage, providing protection for different interests. Recognition of the right to compensation due to violation of the right to autonomy provides protection for the patent’s autonomous status in the decision-making process and his or her right to receive information for the purpose of formulating a position about the performance of a medical procedure. Twerski & Cohen [96] at 649. As a matter of principle, protecting these rights and interests should not be conditional upon providing compensation for the real harm caused by the medical treatment, which protects the interest of preservation of a person’s bodily integrity. Compensation for the bodily harm caused by failure of the treatment does not give expression to the intangible damage caused to the patient due to the violation of his or her right to autonomy. For that reason, the fact that two heads of tort are located under one roof does not mean that compensation therefore constitutes double compensation, since the interests protected by each head of tort are separate and different. The argument that bodily harm precludes compensation for damage caused by violation of autonomy does injustice to the appropriate protection for the specific interest inherent in each of the said heads of damage. Accordingly, from a principled-legal perspective, it appears to me that there is neither reason nor justification to cancel the one because of the other.

At the same time, there might certainly be reciprocity between the two heads of tort. In other words, the intensity of a person’s feelings due to violation of his or her right to autonomy might change, inter alia, in accordance with the result of the treatment performed on the patient’s body without obtaining informed consent, the extent of bodily harm caused, the importance of the information which was not given to the patient due to the doctor’s negligence, etc. For example, where the failure of the treatment caused bodily harm to the patient, the intangible injuries due to the violation of the right of autonomy might be regarded as grave. And vice versa: the success of the medical treatment – despite the fact that it was performed without obtaining informed consent – might appease the patient and calm him or her to such an extent that the damage caused is minimal (de minimis non curat lex).

Evaluating the Damage Due to Violation of Autonomy

45. What, then, is the extent of the damage and how should it be evaluated? What test should we use to evaluate the damage to a person’s autonomy? Should we adopt the perspective of the specific patient, and accordingly examine how he or she feels as a result of not having received the information (subjective test)? Or should we examine the damage caused by the violation of autonomy, as seen through the eyes of the reasonable patient (the objective test)? Or perhaps we should adopt another point of view, incorporating the objective elements while placing emphasis on the special and unique circumstances of the patient before us (the combined test)?

I will preface my remarks by saying that the combined test is the one I proposed as the most suitable for assessing the chances that the patient would have made a particular choice, had his or her informed consent been sought (supra paras. 24-25). The reasons I presented there are also appropriate in the current context. An expression of the combined test can be found in the following:

That [doctor-patient - T.S.C.] relationship also gives rise to a duty to provide information and advice. That duty takes its precise content, in terms of the nature and detail of information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or concerns which, if known to the doctor, will indicate that special or additional information is required…. In other cases, where, for example, no specific inquiry is made, the duty is to provide the information that would reasonably be required by a person in the position of the patient.

Rogers [43] at 54.

46. Evaluating an intangible injury raises numerous difficulties, and the effort to quantify it is particularly difficult. In applying the combined test in order to evaluate the harm caused by violation of autonomy, we must examine the injury caused while adopting the viewpoint of a reasonable patient, and we must also express the individual and autonomous aspects of the particular patient:

The measure of the non-pecuniary harm to be compensated depends, from the strictly tortious point of view, upon the extent to which an individual values his or her autonomy, taking into account his or her mental and emotional reaction to the violation.

Englard [83] at 164.

For the purpose of evaluating the injury, the court must assess the degree of the violation of the patient’s autonomy caused by the failure to give the patient the information that he or she should have been given. And note: the information which the doctor is obligated to give the patient is not all the information which the patient would like to receive, but only such information which, if omitted, would constitute negligence in obtaining informed consent. Accordingly, when the court evaluates the harm caused to the patient due to the violation of autonomy, it must examine the damage caused due to failure to provide the specific information which the doctor was duty bound to give to the patient.

47. The doctors’ duty to give the information is not uniform, and it does not cover all particulars of the information down to the remotest of risks. Vaturi [3] at 182. Failure to give information on particular and real risks which are not “far-fetched or fanciful” might also constitute negligence on the doctor’s part. Rogers [43] at 54. Accordingly, both the doctors and the courts must consider the extent and nature of the information that must be provided by the doctor, and they should address the special value of the information not provided, compared with the information provided (see the Patient’s Rights Law, sec. 13). The extent of the violation might be more severe if the patient believes that the information not provided could have altered his or her position regarding performance of the medical treatment. In this context, it is appropriate to take into account the patient’s position and attitude to the provision of the medical information concerning himself or herself. In many cases, the patient freely forfeits his or her own free will, leaving the decision-making solely to the doctor, and even asking not to be apprised of his or her medical condition.

… in the context of doctor-patient relationship, the latter’s genuine desire for full autonomy in the decision-making process is rather rudimentary. It is a well-known and widespread phenomenon that people are reluctant to assume full responsibility for their personal fate, especially in cases of difficult medical decisions… At present, the wish for autonomy in medical decision-making is far from being fully developed in the patient.

Englard [83] at 164-65.

Under this state of affairs – so the argument goes – protecting autonomy under the head of tort awarding compensation, where no harm was caused to the patient, is not appropriate.

If patients lack the consciousness of self-determination, why compensate them for its assumed loss? In the absence of harm, there is no place for compensatory rectification.

[83] at 165.

Indeed, there will be cases in which the patient will prefer not to receive the medical information and to leave the medical decision-making to the doctor, because of the patient’s fear of receiving information about his or her real medical condition and of making his or her own weighty decisions. Ostensibly, this approach is not commensurate with the perception of a person as an autonomous entity, although a person’s refusal to take responsibility for making an autonomous decision may also derive from the autonomy of his or her will. In any event, in order to evaluate the extent of the damage caused by violation of autonomy, it is necessary to take into account the position and wishes of the specific patient regarding receipt of the medical information, because if the patient is not interested in receiving the information and making an autonomous decision, there is no basis to the claim that this autonomy was violated.

48. Another consideration that might arise when evaluating the damage caused concerns the consequences of the treatment performed. I do not think it appropriate to make exhaustive observations on this issue, and each case should be considered on its merits, in accordance with its circumstances. Nonetheless, it would appear that the results of the treatment performed could be of significance when evaluating the damage caused by the violation of autonomy. For example, the fact that the medical treatment succeeded, despite the fact that it was provided without obtaining informed consent, might render the damage caused by the violation of autonomy theoretical or negligible (de minimis). On the other hand, where no informed consent was given, and the treatment failed and even caused bodily harm, the failure of the treatment may exacerbate the injury to the patient and to his sensibilities. In any event, the compensation is not intended exclusively as punitive or theoretical compensation.

 

The Burden on the Doctors – Is It Excessive?

49. Recognition of the right to compensation for damage caused due to violation of autonomy is not free of doubts and difficulties. It is clear that that recognizing the head of tort entitling a person to compensation due to violation of autonomy per se imposes a heavy burden on the treating doctors. Recognition of this head of damage might expose them to legal liability not only when they are negligent in obtaining informed consent and where there was bodily and other injury, but also in the case of successful medical treatment where they are nevertheless liable for intangible injury caused by the violation of the right. Indeed, the burden imposed on the doctors is a heavy one. At the same time, the power held in the doctors’ hands may have a significant –if not irreversible – impact on the patient’s life-style and health. Consequently, despite the doctors’ well-intended desire to benefit the patient, they should always keep the patient's wishes in mind.

50. At the same time, it is appropriate to state that fear of “defensive medicine” is not unfounded (CA. 2989/95 [27] at 698), and it is occasionally raised when doctors are exposed to a broadening of their legal liability. Indeed, the burden borne by the doctors is a heavy one, but the courts will presumably be able to distinguish between information whose delivery is vital, the non-delivery of which would have violated the patient’s autonomy, and information whose delivery is not vital, the non-delivery of which would not have violated the patient’s ability to make an informed, considered, and autonomous decision. Similarly, courts will presumably be able to distinguish between cases in which informed consent was obtained and cases in which it was not. Adopting this path, while paying attention to the conflicting interests and making a considered and cautious evaluation of the compensation awarded for the violation of autonomy in accordance with the merits of each case, guarantees the patient’s right to autonomy on the one hand, and provides protection for the doctors’ important work, on the other.

51. Furthermore, it must be remembered that recognizing this head of damage is only one stone in the mosaic, by which I mean placing the patient’s autonomy at the center of the medical treatment and anchoring the patient's status in the process of making medical decisions that concern him or her.

It is not enough for the law to say to doctors, Disclose, or … to say to patients, Decide”. Rather, physicians must relinquish some of their power and patents must relinquish some of their vulnerability…. Patients and physicians must develop different attitudes toward each other … Patients clearly need to trust more in themselves – to trust their abilities to understand information, to ask the appropriate questions, and to make the “right” decisions. Patient self-trust does not come from trusting doctors less, but instead from doctors’ and others’ (including the law’s) trusting patients more.

Jones [109] at 425 (emphasis added – T.S.C.).

And Now to the Matter at Hand:

52. How does all of the aforesaid affect our case?

 

In the circumstances of this case, the doctor did not obtain the appellant’s informed consent for the treatment, nor was it proven that he gave her the medical information that was essential in this particular case; the operation was an elective one and was not the operation for which she had come to the hospital. Failure to give her the information under these circumstances, as stated above, amounted to negligence in obtaining informed consent. This negligence prevented the appellant from deciding, on an informed and considered basis, whether she was willing or unwilling to perform the biopsy on her shoulder. The voluntary and informed decision concerning the performance of the biopsy is one that ought to have been made autonomously by appellant. Accordingly, we can rule that this negligence violated the appellant’s right to autonomy over her own body. However it is insufficient to rule merely that there was a violation of the appellant’s autonomy, since that ruling is on the level of liability only, and we must further examine its concrete expressions in the circumstances of this case. This requires us to determine, through evaluation, the extent of damage caused to appellant due to this violation of her autonomy.

It was after the performance of the biopsy on her shoulder that the appellant became aware that it had been performed without her having received the relevant information and that the doctor had been negligent in obtaining her consent to the operation. The evidence presented does not indicate how she responded upon becoming aware of these facts. We do not know how important it was from her perspective – if at all – to make an autonomous decision about the performance of the procedure and what she would have decided had her informed consent been requested. She did not testify on these matters and categorically denied having even been aware that she was about to undergo such an operation. The trial judge rejected her testimony as unreliable, and there was nothing to do apart from awarding her an estimated compensation under this head of damage. In conclusion, I concur with the opinion of my colleague, Justice Or, concerning the right to compensation under the head of the tort of violation of autonomy and the amount stipulated by him as compensation. In my view, the compensation under this head of damage should be added to the compensation for half the sum of compensation for bodily injury to be awarded to the appellant due to performance of the operation without obtaining her informed consent, all as set forth in my opinion.

President A. Barak

I concur with the judgment of my colleague, Justice Or. As such, I am not required to decide the case before us on the basis of path proposed in the judgment of my colleague, Justice Strasberg-Cohen. Indeed, cases in which the casual connection cannot be resolved on the basis of the balance of probability present difficult problems in terms of deciding the applicable law. This was also the position of my colleague, Justice Beinisch, reflected in her comments on the subject. Personally, I do not need to decide the issue in the current case, and I leave it for further review when the time comes. The reason for this is that in view of the contents of the judgment of my colleague, Justice Or, it was proved in the present case that appellant would have agreed to the performance of the biopsy on her shoulder, if she had been duly advised and had given her “informed” consent.

Deputy President S. Levin

 

I concur with the ruling of my learned colleague, Justice Or.

Justice M. Cheshin

I concur with the ruling of my colleague, Justice Or. However, I must confess that in circumstances such as ours, I was attracted by the doctrine of evaluating the chances of the existence of a causal connection (as opposed to the doctrine of balance of probability), on which my colleague, Justice Strasberg-Cohen, based her opinion. “In circumstances such as ours” means in circumstances in which the injured person – the plaintiff – due (also) to the defendant’s actions and omissions, finds it difficult to prove a causal connection between the defendant’s actions and omissions and the injury incurred (by the plaintiff). Thus, for instance, one could argue that in circumstances such as ours – to which I confine my remarks – the justice of the principle of distributing and spreading the damage is preferable to the justice of the principle of “all or nothing.” This was also the case in the past when, in cases of contributory negligence, the principle of division of liability between the tortfeasor and victim replaced the principle of full exemption or full liability. It could therefore be argued that the same rule should apply in our case. The same rule is also applied regarding the division of liability between joint tortfeasors. Concededly, with respect to a causal connection between action or omission and damage caused, these two [aforementioned – ed.] cases are not identical to the case before us. Even so, it would seem that the underlying principle of distributing and spreading the damage should also find expression in circumstances such as ours. Since I concur with the opinion of my colleague, Justice Or, I have the good fortune of not having to decide the question. Its time will come.

Justice I. Englard

I concur with the judgment of my honorable colleague, Justice Or.

It was therefore decided by majority opinion in accordance with the opinion of Justice Or.

August 29, 1999.

 

 

Subscribe to RSS - Causation