Negligence

Atia v. Rosenbaum

Case/docket number: 
C.A. 176/53
Date Decided: 
Friday, September 24, 1954
Decision Type: 
Appellate
Abstract: 

The plaintiff was employed by the defendant to work an electrically-driven wool-teasing machine. On January 17, 1951 the plaintiff was cleaning the machine when his hand got caught and, before it could be released, was seriously injured. The plaintiff sued the defendant for damages for negligence and breach of the statutory duty to fence securely every dangerous part of any machinery or to provide the other safety measures set out in s. 18(1) of the Factories Ordinance, 1946.1)

           

The Court of first instance, in dismissing the claim, held that there had been no breach of statutory duty because the employer had put the necessary fence on the machine and although there might be greater protection for the worker by use of a morticed lock, in fact no such lock was in use or available in Israel nor was it used to a great extent outside Israel.

           

Held, allowing the appeal, that the duty to secure the safety of the employee was absolute, and that this duty was not discharged by employing a method by which the safety of the employee was in fact not secured although such method was the one generally employed.

           

The appellant was awarded IL.15,000.- as damages for the injuries received.

 

1) The text of this section is set out infra p. 441.

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

C.A. 176/53

 

           

MORDECHAI ATIA

v.

MOSHE ROSENBAUM

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[September 24, 1954]

Before Goitein J., Landau J., and Berinson J.

 

 

Tort - Factories Ordinance, 1946, s. 18(1) - Breach of statutory duty - Dangerous machinery - Failure to fence - Injury to employee - Liability of employer - Assessment of damages - Expectation of life - Loss of future earnings - Pain and suffering.

 

            The plaintiff was employed by the defendant to work an electrically-driven wool-teasing machine. On January 17, 1951 the plaintiff was cleaning the machine when his hand got caught and, before it could be released, was seriously injured. The plaintiff sued the defendant for damages for negligence and breach of the statutory duty to fence securely every dangerous part of any machinery or to provide the other safety measures set out in s. 18(1) of the Factories Ordinance, 1946.1)

           

            The Court of first instance, in dismissing the claim, held that there had been no breach of statutory duty because the employer had put the necessary fence on the machine and although there might be greater protection for the worker by use of a morticed lock, in fact no such lock was in use or available in Israel nor was it used to a great extent outside Israel.

           

            Held, allowing the appeal, that the duty to secure the safety of the employee was absolute, and that this duty was not discharged by employing a method by which the safety of the employee was in fact not secured although such method was the one generally employed.

           

                The appellant was awarded IL.15,000.- as damages for the injuries received.

           

Israel cases referred to:

 

(1) C.A. 70/52 Yehoshua Grossman and Egged Ltd. v. Henry Roth (1952), 6 P.D. 1242.

(2)   C.A. 62/53 Yehoshua Daum and Egged Ltd. v. Nissim Aharonof and Others (1954), 8 P.D. 128.

 

English cases referred to:

 

(3) Dennistoun v. Charles E. Greenhill Ltd.; [1944] 2 All E.R. 434.

(4) Davies v Thomas Owen and Company, Ltd.; [1919] 2 K.B. 39.

(5) Pugh v. Manchester Dry Docks Company, Ltd.; [1954] 1 All E.R. 600.

(6) Carroll v. Andrew Barclay and Sons, Ltd.; [1948] 2 All E.R. 386.

(7) Sutherland v. Executors of James Mills, Ltd.; [1938] 1 All E.R. 283.

(8) Harris v. Bright's Asphalt Contractors, Ltd.; [1953] 1 All E.R. 395.

(9) Roach v. Yates; [1937] 3 All E.R. 442.

(10) Rowley v. The London and North Western Railway Company; (1873), 29 L.T. 180.

(11) The "Swynfleet"; (1947), 81 Lloyd's List Law Reports 116.

 

Katz for the appellant.

Rotenstreich for the respondent.

 

BERINSON J. giving the judgment of the court. The appellant was employed as a labourer by the respondent, the owner of a wool factory for a period of about two months. During this time he was engaged in various tasks, including the operation of a wool-teasing machine.

 

            On January 7, 1951, the appellant was temporarily engaged in operating the machine in question. He started this work at 4 p.m. and at 8 p.m. he put his left hand into the machine while cleaning it. His hand was caught in one of the wheels of the machine and was severely injured.

           

            The appellant sued his employer under the Civil Wrongs Ordinance for damages in respect of the physical injury suffered by him, basing his claim upon two causes of action:

           

            (a) breach of the statutory duty imposed upon the employer by sections 10(1)1) and 18(1) of the Factories Ordinance, 1946 relating to the illumination and fencing of dangerous machines in places of work:

           

            (b) negligence.

           

            The learned judge held that not only had the plaintiff failed to establish even one of the causes of action upon which he relied, but that it was his own negligence that had caused the accident. He therefore dismissed the claim. The appellant appealed to this court. Before us his counsel confined his submissions to one point alone, namely, the breach by the respondent of his statutory duty to fence the machine operated by the appellant - a duty imposed upon him by section 18(1) of the Factories Ordinance, 1946 (hereinafter called "the Ordinance"). That section provides as follows:

           

            "Every dangerous part of any machinery, other than prime movers and transmission machinery, shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced:

 

            Provided that, in so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this subsection shall be deemed to have been complied with if a device is provided which automatically prevents the operator from coming into contact with that part."

 

            Before dealing with the accident itself, it is desirable that we have a clear picture of the machine involved in the accident and the way in which it works. We adopt the description of the learned judge in the court below who said:

           

            "I held an inspection in loco on two occasions. I examined the machine and found it to be composed of the following parts: 1) a table which oscillates while the machine is being operated; 2) a wooden cylinder at the end of the table; 3) a metal rod; (Note: there are in fact two metal rods, one above the other). 4) a cog wheel; 5) a guard above the cog-wheel.

 

            The method of operating the machine is as follows: the workman stands in front of the table and places the wool upon it. The wool is then conveyed towards him (by the oscillating table) from under the wooden cylinder, it enters the metal rod and is conveyed to the cog-wheel. The metal pivot is protected by a metal guard. The cog-wheel remains clean, but the wool accumulates under the metal rod and must be extracted from time to time with the help of a device called by the workmen a "hook".

           

            The machine is operated by electric power, the starter switch being situated close to it. To stop the machine completely, however, one operates another switch. situated about three meters from the machine. Even when the electric current is cut off, the machine continues to work - that is to say, the table still oscillates and the wheel, the rod and the cylinder continue to revolve for some seconds."

           

            This is the description given by the judge, to which must be added two important details which also emerge from the evidence:

           

            a) the table moves at a relatively slower speed than the cogwheel, which oscillates at a great speed. When the electric current is cut off, the various parts of the machine continue to move under their own power, but the table - which is a slow-moving object - comes to a stop before the cog-wheel which moves at a higher speed. A person unaware of these facts may therefore fall into error and think that when the table stops moving the wheel also stops. In fact however, the cog-wheel continues to revolve at a high speed for some time after the table has ceased to oscillate.

 

            b) The workman operating the machine stands facing it in front of the moving table. and in that position his hands - even when stretched straight out - do not reach the metal rods and also, therefore, do not reach the cog-wheel, which is even further away from them.

           

            How did the accident occur? The appellant was the only workman at the machine which stood in a room by itself. There was no eye-witness to the accident nor to what preceded it. The appellant stated in his evidence that on the day of the accident, at about 8 o'clock in the evening, the wool accumulated in the machine, and new material could not be served to it but kept flying back towards him. He therefore cut off the electric current by operating the two switches. and when the machine had stopped altogether he put in his left hand in order to clean away the wool. He did not see then that the cog-wheel was still turning since it was full of wool. and this wheel drew his hand inwards. The appellant added that the metal guard over the rods was not in position and that "had the guard been in position then, the wool would not have blown towards me and I would have been able to see the wheel". Under cross examination, however, he said that he could not remember if the guard was there at that time.

           

            The learned judge repeats the story of the appellant in his judgment, his only comment relating to the question of the metal guard. He says that he prefers the version of the respondent that the guard was in its place on the day of the accident, such version being supported by the clear evidence of the respondent and the works manager whose evidence on this point was unshaken.

           

            The remaining details in the appellant's story of the occurrence are not only uncontradicted by the other witnesses, but are in fact supported in the main by the witnesses Pessah Cohen and Simha Sverdlik. These witnesses, who are also workmen in the factory, were attracted to the scene by the cries of the appellant immediately after the accident, and it is they who dismantled the machine and removed the injured hand of the appellant. Moreover during one of the visits of the learned judge to the factory Sverdlik demonstrated the position in which he found the appellant after the accident and this demonstration coincided with the appellant's story. From all this it must be assumed that the learned judge accepted this portion of the appellant's evidence.

           

            The findings of the learned judge that the machine operated by the appellant is dangerous and that the metal rods were guarded on the day of the occurrence were not disputed before us. The real dispute, however, related to the question whether the guard conformed with the requirements of the law. The learned judge reached the conclusion that the respondent had discharged his duty by providing "reasonable means to make that portion of the machine safe". Counsel for the respondent, of course, supports this view of the matter while counsel for the appellant, in arguing against this finding, submits that reasonable means are not sufficient. Section 18(1) of the Ordinance requires, that the dangerous part of the machinery be securely fenced" or, in certain circumstances, that alternative means be taken to provide the same measure of safety. If, by reason of the nature of the operation, the safety of a dangerous part of the machinery cannot be secured by means of a fixed guard, it is necessary to provide what is called an interlocking guard. This device automatically prevents the operator of the machine from coming into contact with the dangerous part while it is in motion since the lifting of the guard in itself brings the machine to a standstill.

           

            The English courts1), on the basis of a similar provision in the English statutes requiring safety in the operation of dangerous machinery, have held repeatedly over a period of decades that the duty of fencing machines securely is an absolute duty in the sense that the safety to be provided by the fencing must be absolute. In other words, the fencing must provide the workers who come into contact with the machine with an absolute guarantee that they will not be injured by it. The factory owner, therefore, does not discharge this duty even if he fences the dangerous machine in accordance with the best and most modern system known at the time if, in fact, the machine is not guarded thereby as the law requires (see Dennistoun v. Charles E. Greenhill Ltd. (3)). In the same way the factory owner does not discharge his duty if he does not provide the safety required for his workmen because to do so is technically impossible or commercially unfeasible. It has accordingly been held by the English courts that in cases such as these there is no alternative but to withdraw the machine from use. (Davies v. Thomas Owen and Company Ltd. (4), and Pugh v. Manchester Dry Docks Company, Ltd. (5).)

           

            In the case before us evidence was given by two labour inspectors who are responsible for ensuring compliance with the provisions of the Ordinance. They both stated that the guard over the metal rod is inadequate because it is possible to raise it while the machine is working without thereby stopping the machine. Both these experts stated, therefore, that there can be no absolute protection for the operator of this machine unless by means of an interlocking guard (by the raising of which the operation of the machine is stopped automatically, while it is impossible to set the machine in motion unless the guard is in position) although they had not demanded up to that time that such a guard be provided. The learned judge, however, did not accept these opinions but upon the evidence of the defendant and an expert engineer called Avni, who gave evidence on the defendant's behalf, he reached the conclusion that in providing the guard as it was, the defendant had taken reasonable steps to discharge his statutory duty. The defendant, who is very experienced in his profession, stated in evidence that he had visited many factories of the same kind in the country and that in not a single one had he seen an interlocking guard. He also said that "the guard must be free and flexible so that it can be raised with ease" - in other words, that in view of the nature of the work it is impossible to use a guard that is absolutely rigid. The engineer Avni also confirmed that the guard in the present case must be flexible, so that it can be raised in order to enable the wool to pass in accordance with the thickness of the material and that it is therefore impracticable to operate this machine with a morticed fence. He also stated that he had not seen such a fence on machines of this kind either in this country or elsewhere, and that only recently he had seen a modern machine of this type made in Belgium, and that even on that machine there had been no interlocking guard. On the basis of this evidence the judge concluded that the metal guard constituted reasonable protection, sufficient to satisfy the requirements of section 18(1) of the Ordinance, and that there is no necessity in this case for an interlocking guard in terms of the proviso to that section.

 

            It seems to us for more than one reason that the learned judge erred in his conclusion.

           

            In the first place it is clear that the metal guard does not allow for the machine to be "securely fenced". It moves up and down according to the amount of material which enters the machine, and sometimes it rises to such an extent as to enable the operator of the machine to put in his hand and reach the point between the two metal rods which revolve at a high speed (see the evidence of the labour inspector Stein and of the defendant). In other words, the guard does not constitute a reliable and fixed partition which would prevent a workman from coming into contact with the dangerous parts of the machine, and as long as this is so the requirement that the machine should be securely fenced has not been fulfilled (see, for example, the remarks of Lord Porter in Carroll v. Andrew Barclay & Sons Ltd. (6) at pp. 390-1). Moreover, when the metal guard is lowered it covers the metal rod and protects the workman from the cog wheel, but when it is raised - and there is no difficulty or impediment in raising it at any time - it exposes both of them, and there is then nothing to prevent the workman from coming in contact with them. This arrangement does not fulfil the requirements of section 20 of the Ordinance which provides, inter alia, that all fencing or other safeguards provided in pursuance of that Part, namely Part IV of the Ordinance, shall be constantly maintained and kept in position while the parts required to be fenced or safeguarded are in motion or in use, save in certain exceptional circumstances which are not relevant to the present case. In the case before us, as we have seen, it is possible to raise the guard with ease and expose the dangerous parts even when they are in motion, and we know from the story of the appellant that his hand was drawn towards the cog wheel while it was still in motion.

 

            In the second place, it is clear from the evidence of the respondent and the engineer Avni - which was accepted and relied upon by the learned judge - that because of the nature of the machine it is impossible to secure the safety of the workman from the metal rods. Their evidence was that the guard must be flexible and free, so as to be raised and lowered in accordance with the thickness of the layer of wool entering the machine. In this case, therefore, the proviso to section 18(1) of the Ordinance applies, in terms of which a device is to be provided which automatically prevents the operator from coming into contact with the dangerous part of the machine, viz., a device called an interlocking guard. There is no doubt that it is a matter of great, if not insuperable, difficulty to fix an interlocking guard to this type of machine. As we have already seen, however, there is no solution other than to fulfil the statutory obligation or to cease to use the machine. The fact that this machine has been used as it is in the respondent's factory and in other factories for a considerable time without any accident having occurred, and that the labour inspector did not demand an interlocking guard on this type of machine, is immaterial. See Sutherland v. Executors of James Mills, Ltd. (7).

           

            This brings us to the second question, namely, whether the appellant was negligent, and if it was his negligence which caused the accident. The learned judge found that the appellant well knew from the directions and instructions which he had received from the respondent and the Works Manager that the machine was to be cleaned by means of a hook, and not by hand, and that the appellant's negligence consisted in acting against this directive. The learned judge found additional negligence on the part of the appellant in his standing at the side of the machine instead of facing it - as he was obliged to do - and in his introducing his hand under the metal rod, although this part of the machine is always free of wool. Had there been some foundation in the evidence for the findings of fact upon which the judge based his conclusion of negligence we could not have interfered with that conclusion. However, after having examined and re-examined the evidence in its entirety, we have been unable to discover any basis for the findings of the learned judge. We shall deal with them separately.

           

            (a) The appellant acted against the directions and instructions which he received. In connection with this the respondent stated in evidence: "When the appellant started to work, I showed him how to clean the machine and I explained to him that the electric current must be stopped before the cleaning and that he must not touch any part of the machine as long as it is in motion... I told him that when the machine is already working he must only use the hook in order to clean it and must not use his hands...... The worker who operates this machine is the one who must clean it and he is not to rely on any one else to do it". And the Works Manager stated in evidence: "When it is desired to clean the machine it must be turned off. It is possible to remove the wool both with the hook and also by hand where there are no cogs... I told the plaintiff that it was forbidden to introduce the hand while the machine was in motion.. ."

           

            And what did the appellant do? He first turned off the electric current with both switches, and when it seemed to him that the machine was no longer in motion he started to clean it by hand. This was in accordance with the instructions given to him and not contrary to them. The appellant did not know that the cog wheel continues to move for some little time after the current is turned off, and there was no evidence that instructions were given to him not to approach the machine for some time after the current had been turned off.

 

            (b) The appellant stood at the side of the machine at a time when he should have stood facing it. It is true that the appellant stood at the side of the machine while he was cleaning it, and not facing it, but according to all the evidence he was not obliged to stand facing the machine at that time. It is only while the machine is in motion and the workman is operating it or cleaning it with a hook, that he is obliged to stand facing it. When, however, he has to clean it by hand after it has ceased to operate, he is obliged to stand to one side, otherwise his hand cannot reach the machine at all.

           

            (c) The appellant introduced his hand underneath the metal rod, although that part of the machine is always clear of wool. In point of fact the appellant did not introduce his hand into that portion of the machine. The eye-witnesses, Pessah Cohen and Simha Sverdlik, who helped to extract the appellant's hand from the machine immediately after the accident, stated clearly that "the hand was caught between the big cylinder and the cogs" and that "he held his hand above the cylinders between the drum (that is to say, the cog wheel) and the upper cylinder (that is to say, the rod)..."

           

            It is clear, therefore, that there is no proof of negligence on the part of the appellant which caused the accident. The accident was caused in fact by the breach of the statutory duty imposed upon the appellant relating to the fencing of the machine.

           

            The plaintiff, in his Statement of Claim, claimed damages in an inclusive sum of I.L. 17,000.- Of this amount I.L. 500.- were claimed as special damages for loss of past wages, that is to say, from the date of the accident, January 7, 1951, until the date of the institution of action, July 1, 1952, less the amount received by him until then, and general damages in an amount of I.L. 16,500.-.

           

            In the course of argument before the District Court counsel for the plaintiff amended this account and argued that on the basis of the evidence led by him his client was entitled to damages for loss of wages until that date (April 1, 1953) in an amount of I.L. 1,534.-. In this court counsel for the appellant again amended the account for damages and in his written argument filed in this court on June 10, 1954, claimed an amount of approximately I.L. 4,000.-. He based his claim for this sum on his client's total inability to work during the whole period, and he argued that this amount should be awarded to his client in full as the actual loss which he had sustained for the period which had already passed, as special damages.

 

            It is clear that this contention is erroneous. Special damages must be proved in a trial as the actual loss or expense sustained by the plaintiff until the date of his claim or, at the latest, until the date upon which the case is heard. All other loss, expense, or damages which are anticipated in the future form a portion of the general damages.

           

            The learned judge dealt with the question of damages only to meet the eventuality of an appeal, and he expressed the opinion that the loss of past wages should be assessed in the amount of I.L. 500.-and that the claim for general damages in the amount of I.L. 16,500.-should be dismissed for lack of proof.

           

            We do not think it would be right in this case to vary the amount awarded by the learned judge in respect of damages for loss of past wages - down to the date of the institution of the action - in the sum of IL. 500.-, since this is the sum which was claimed by the plaintiff in his Statement of Claim, and he did not claim that damages under this head should be calculated until the date of the hearing of the case.

           

            We turn now to the question of general damages. The plaintiff in his Statement of Claim did not claim the general damages claimed in the amount of I.L. 16,500.- under the two heads of damage of which they are composed, namely, loss of wages or profits in the future, and pain and suffering. Only in the course of argument in the District Court was it stated by counsel for the plaintiff that, in accordance with the accepted standard in the courts of this country in such matters, it was in his opinion proper to fix the amount of damages for pain and suffering caused to the plaintiff at I.L. 5.000.-and damages for loss of wages from the date of the institution of action until the end of the plaintiff's life in the amount of I.L. 11,500.-as was done in the case of Grossman & Egged Ltd. v. Henry Roth (1) and the case of Daum & Egged Ltd. v. Aharonof (2).

 

            As far as damages for pain and suffering are concerned it seems to us that the damage in this case is less serious than in that of Grossman, in which the damages awarded were fixed at I.L. 5,000.-and in that of Daum, in which the greater part of the sum of nine thousand two hundred and thirty pounds was awarded. In Gross man's case the left hand of the injured man was amputated completely leaving only a stub the length of which was 16 cm. In the case of Daum the victim suffered severe injuries to his head and remained with a deep hollow in his forehead. After an operation and lying in hospital for twenty-six days, a further period of five months elapsed before he started any work at all. He lost his sense of taste and his sense of smell, and at times even his sight was affected. The doctors were also of opinion that it was possible he would become epileptic as a result of the accident. It is true that in the case before us the appellant lay in hospital on more than one occasion and underwent four operations in the course of nine months, and that after all this he remained with a permanent disability in his hand. The hand itself, however, was not amputated, although it has remained patently deformed. Having regard to all the circumstances of the case it seems to us that an amount of I.L. 4,000.-is a reasonable sum of damages under this head.

 

            It remains to consider the measure of damages to be awarded for loss of ability to work in the future. There is no rigid rule to be applied to this matter and the court will assess these damages to the best of its judgment having regard to all the circumstances and the factors affecting the case before it. As a general rule the court must assess "how much the injured man would have earned but for his disability and how much he is likely to earn with his disability" during the rest of his life, and must determine the damages upon the basis of the difference between these two amounts. See Grossman's case (1).

           

            It follows that the learned judge was correct in saying that it was for the plaintiff to prove his age and his prospects of living in order to estimate thereby his expectation of life. We are not however, in agreement with the conclusion of the learned judge that the plaintiff's prospects of life were not proved.

           

            It is true that these two elements, namely, the age of the plaintiff and the length of life which he could be expected to live were not mentioned in his Statement of Claim. The plaintiff stated in evidence, however, that he is twenty one years of age and that he completed his army service with medical category "A" about three months before the accident. Counsel for the defendant did not object to this evidence at the time nor did he bring any evidence to contradict it. In these circumstances there was nothing to prevent the learned judge from accepting the age of the appellant and his state of health in general, as facts which had been proved.

 

            What, however, is the appellant's expectation of life for the purpose of assessing general damages? No positive evidence on this point was adduced, but in his argument before the lower court, counsel for the plaintiff relied upon the statistical tables published in Bingham's book on Claims in Vehicle Cases, second edition, p. 372, and on the Israel Statistical Monthly, from which it appears that the average expectation of life of a normal man of twenty one years of age in England and in Israel is about 45 years. The learned judge, however, apparently following an obiter dictum of Cheshin J. in Grossman's case (1), paid no attention to all this and did not even mention it in his judgment. In our opinion once the judge had seen the plaintiff in the witness box and his age and state of health were known to him, there was no reason not to estimate the expectation of life of the plaintiff - upon the basis of his general knowledge of the average and usual length of life of the inhabitants of this country. It has been an accepted practice in the courts of England in recent times to estimate the expectation of life of a plaintiff upon the basis of their general knowledge and experience without any additional positive evidence. (See Harris v. Bright's Asphalt Contractors Ltd. (8), and Roach v. Yates (9).)

           

            That is also the law in the United States, as appears from Sherman and Redfield on Negligence, Revised Edition (1941), vol. 4, p. 1972, in which the following two cases are cited:

           

            "Where the plaintiff was personally present held that the jury might judge her life expectancy without any other evidence on the subject."

           

            "Where the evidence discloses the age and health of the deceased, it is competent for the jury to estimate his probable duration of life without the assistance of mortality tables".

           

            After all, every case of the possible expectation of life of a particular person is in the realm of conjecture, even after consideration of tables of life and mortality, and evidence of experts regarding them. In the absence of special circumstances pointing to the necessity of departing from the general rule in respect of any particular person, the expectation of life of an ordinary man must be assessed according to the average that is proved in the case or which is determined by the court upon the basis of its own knowledge and personal experience.

 

            "If there are special considerations such as these, the party who relies upon them to reduce the period of life must prove that they exist." See Rowley v. The London & North Western Railway Company (10), at p. 184.

 

            In the present case the respondent has not established the necessity of departing from the general rule in the case of the appellant. It seems to us, therefore, that it would be right to fix his future expectation of life at 40 years.

           

            As far as the wages of the appellant at the time of the accident - and thereafter - are concerned, it has been proved that his daily wage at the time of the accident was I.L. 1.659.- and that the daily wage of a healthy workman of the type of the appellant at the time of the institution of action in July, 1952, had risen to I.L. 4.333. When this evidence was heard in January 1953, the daily wage was I.L. 4.854. As is known, wages in general have continued to rise, regularly and continuously, but since we must take into account a length of life of 40 years which the appellant may expect from July, 1952, and that there may be in the course of that time both rises and falls in the wages which can by no means be anticipated, it seems to us that we are entitled to assume, on the basis of the position of today, that were it not for the appellant's disability he would in the course of the whole period mentioned earn an average of I.L. 5.- per day, together with the rises and increments which he would receive as a result of expert knowledge and progress in his work which would increase with time.

 

            In view of the judgment in the case of The "Swynfleet" (11), it is clear that in fixing the estimated wage which would be earned by an injured man for the rest of his life were it not for the accident, we are not entitled to disregard the general changes which operate in the meantime on the wages of workmen of the same type as the injured man. We must take them into account as the basis of our assessment in place of the actual wage earned by the injured man at the time of the accident. In that case the damages payable to the family of two workmen in a French ship who lost their lives when the ship sank as a result of a collision with the British ship "Swynfleet" in December 1939, fell to be considered. By reason of the second World War the matter came to trial only in 1947, and a number of major changes in the wage of shipworkers of the type of the two deceased persons (and also in the rate of exchange between the French franc and the pound sterling) had taken place in the meanwhile.

 

            The court held that in assessing the damages payable to the families of the victims the wage which the victims would have earned had they remained alive until the hearing of the case was to be taken into account. In so holding the court based itself upon the principle that damages must replace what the deceased would have given his family had he remained alive and continued to support them. The same principle applies in the case of bodily injury in which case, too, the damages must compensate the injured man as far as possible for the anticipated loss which was caused to him by his injury. Since we know today, more than three and a half years after the occurrence, what has happened in the meantime in regard to wages generally, we must make use of this knowledge and not be content with considering the state of affairs that existed at the time of the accident as if nothing had happened since.

           

            It is more difficult to assess what the appellant is likely to earn, with his disability, for the remaining portion of his life. More particularly is this so since up to the date upon which he gave evidence he had not yet succeeded in obtaining any kind of work, despite continuous efforts to do so, nor has it been proved what his prospects of work are in the future. In the absence of any other criterion, we may derive assistance from the evidence of the doctors who stated that the appellant - as a result of the accident - suffered at least a thirty-five per cent disability in his capacity to engage in physical labour, and take this finding as a measure of his loss of wages. On the basis of I.L. 5.- per diem and an average of 300 working days per annum for a period of forty years, the loss - at the rate of 35 per cent of this sum - amounts to I.L. 21,000.-. Taking into account that the appellant will receive his damages in one lump sum instead of in weekly payments, and also having regard to the other factors and occurrences which may operate to reduce his income (sickness, unemployment, and other expected and unexpected eventualities), we fix the sum of damages under this head at half the estimated loss, namely, the sum of I.L. 10,500.-.

 

            In conclusion there remains the argument of the respondent that in view of the provisions of section 62 of the Civil Wrongs Ordinance, 1944, the appellant is precluded from bringing his present claim for damages since he has received damages for a year and a half under the Workmen's Compensation Ordinance. We see no substance in this submission.

           

            Section 62 of the Civil Wrongs Ordinance provides as follows:

           

            "Notwithstanding anything contained in the Workmen's Compensation Ordinance or any enactment as to workmen's compensation in force in Palestine for the time being, no workman (which term, for the purpose of this section, shall be deemed to include his dependants) shall, by reason of the happening of any event, recover from his employer both compensation under the provisions of this Ordinance and compensation under the provisions of the Workmen's Compensation Ordinance or such other enactment for any injury or damage caused by such event.

 

            For the purposes of this section, the expression 'dependents' has the same meaning as it has in section 2(1) of the Workmen's Compensation Ordinance."

 

            It is not disputed that the appellant received from the respondent and his insurance company various sums amounting to I.L. 647.- which were paid to him regularly from February, 1951, until June, 1952. These sums however were not payments of damages under the Workmen's Compensation Ordinance, and in the receipts signed by the appellant (which were submitted to the court) it is merely said that the amounts in question were paid "in respect of damages" without stating whether they were paid under the Workmen's Compensation Ordinance or The Civil Wrongs Ordinance. It was also not proved in evidence that the injured man knew and agreed to receive this money as damages under the Workmen's Compensation Ordinance.

           

            The result is that we allow the appeal, set aside the judgment of the District Court, and award to the appellant an amount of damages of fifteen thousand pounds as follows:

           

For loss of past wages                                     I.L.    500.-

For pain and suffering                                                I.L.   4000.-

For loss of wages in the future                       I.L. 10500.-

Total                                                                            I.L. 15000.-

 

            We also award costs against the respondent both in this court and in the District Court together with an inclusive amount of I.L. 200-. as counsel's fees in both courts.

           

Appeal allowed, and damages awarded to the appellant in the sum of I.L. 15,000.-.

Judgment given on September 24, 1954.

 

1) The text of this section is set out infra p. 441.

1) Factories Ordinance 1946, s. 10(1):

Lighting                        10(1) Effective provision shall be made for securing and maintaining sufficient and suitable lighting, whether natural or artificial, in every part of a factory in which persons are working or passing.

1) The law in England has since been changed.

Full opinion: 

Hammer v. Amit

Case/docket number: 
CA 1326/07
Date Decided: 
Monday, May 28, 2012
Decision Type: 
Appellate
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

This opinion is a result of cases joined together in order for the Court to resolve the general questions regarding the cause of action known as “wrongful birth”. This issue arises when a person born with a congenital disability claims that careful conduct by petitions – usually medical professionals who treated the pregnant mother – would have entirely prevented that person’s birth. Two distinct causes of action might be triggered by the negligent conduct: a claim by the parents and the claim by the child. These claims were recognized 25 years ago in the Supreme Court’s decision in CA 518/82 Zeitzov v. Katz (“Zeitzov decision”). The child’s claim is termed “wrongful life”, and thus is distinguished from the parent’s claim, termed “wrongful birth”. All five justices who sat on the Zeitzov panel found that there is no bar to recognizing the parents’ claim – the “wrongful birth” claim – as a subset of the tort of negligence and according to the general principles of tort law. The dispute, even back then, revolved around the issue of recognizing a claim by the child. In a majority ruling, the Court recognized the child’s claim of “wrongful life”. Still, the four justices of the majority were split on the reasons for recognizing the “wrongful life” cause of action and therefore were also split on the question of quantifying damages. This fundamental question was left unresolved there. As a result, in the years since the decision, real difficulties have arisen in applying the principle rule about recognizing a child’s claim of “wrongful life”. In the absence of binding precedent, the Zeitzov decision was implemented inconsistently. In light of these difficulties and in light of the need to resolve additional related issues, we joined the discussion.

 

The Supreme Court, in an expanded panel of seven justices (authored by Deputy President E. Rivlin) ruled that:

 

The child’s claim of “wrongful birth” can no longer be recognized. Each of the two different modes of reasoning that support the “wrongful life” as presented by the Court in Zeitzov hold significant legal challenges that go both to the element of damage and the element of causation, making it difficult to recognize this cause of action under the tort of negligence. Deputy President Ben-Porat’s approach inevitably leads to finding that there are situations where it would have been preferable for one not to have been born at all. This finding cannot be based on any legal foundation and should not be based on any morals or values. In the absence of such findings, the element of damage in a wrongful life claim cannot be proven. President Barak’s position in Zeitzov is also problematic as there is no causal link between the breach and the damage of life with a disability. But beyond these legal difficulties, there is a moral difficulty in the view that the life of one born with a disability can be considered – in the eyes of the child itself – as “damage”. The finding that it is better for a certain person not to have been born at all carries the impermissible implication that life has no intrinsic value, that is not reduced – and certainly not eliminated – due to a disability. This view is a necessary and important part of our recognition and belief in the sanctity of life, human value and dignity, and the rights of people with disability to dignity and equality. This position is reflected in the jurisprudence of courts in common law countries as well.

 

That said, there is neither law nor principle preventing the recognition of the parents’ cause of action for “wrongful birth” – a cause of action whose recognition is not in dispute. On this issue there is no place to do away with the ruling in Zeitzov.

 

Alongside the general recognition of the parents’ claim of wrongful birth, the Court found it appropriate to address three issues arising from this claim. These were not discussed in Zeitzov in depth and it is time for this Court to establish clear precedent about them. These issues concern the matter of proving causation, quantifying damages, and damage, specifically for infringement of autonomy.

 

Ruling on these issues ultimately led to a significant expansion of the “wrongful birth” cause of action of parents, who may be compensated for expenses incurred in raising the child and providing for its needs throughout the child’s life. In this manner, the Court (here) realizes the worthy objective at the basis of the Zeitzov decision – to compensate as fully as possible for the medical and rehabilitative needs and the care of a child born with a disability, but to do so through the parents’ wrongful birth claim.

 

Proving causation: insofar as parents wish to bring a cause of action for “wrongful birth”, they must prove the existence of a causal connection. To prove this causal link between the breach of duty of care and the different damages caused by the disability, they must show, as the first stage, that had the committee for pregnancy terminations possessed all relevant medical information (information that was not provided to the parents because of the negligent conduct) it would have permitted the parents to terminate the pregnancy. At the second stage, and only if the answer to the first question is in the affirmative (otherwise the causal link is broken anyway), the parents must show that but for the breach of duty of care, they would in fact have approached the committee for pregnancy terminations for permission.

 

Because of the difficulties the second stage causes, significant weight should be given to the first question in terms of causal link – the question whether the committee for pregnancy terminations would have permitted termination in a particular case. In addition it is appropriate that the decision by the committee for pregnancy terminations would serve as a rebuttable presumption regarding the parents’ position on termination. Further, general factors, such as allegiance to a particular religion group,do not suffice to rebutt the presumption that if the committee had permitted the termination then the parents would have approached it with a request. These factors may be relevant, but since they might reflect a single aspect among the entirety of the woman’s individual circumstances, much caution must be taken when drawing any conclusions based on that aspect. Therefore, for instance, it is insufficient that the parents’ religion may forbid them from terminating a pregnancy; the court must be persuaded that the mother would have actually obeyed the religious prohibition. Finally, it must be emphasized that, when it is proven that the committee for pregnany terminations would have permitted a termination, the parents' failure to prove that they  would have chosen to terminate the pregnancy does not negate their possible claim for damages due to the violation of their autonomy, that is, their right to make such an important decision about their lives in an informed manner. For this damage, they are entitled to separate compensation.

 

The issue of damage and quantifying compensation: the parents are entitled to compensation from the defendant for the additional expenses required to fulfill their child’s medical needs and provide the child with care, and when, because of the disability, the child continues to depend on them beyond childhood, they are entitled to compensation for expenses they incure for the rest of the child’s life. This includes ordinary maintenance expenses, at least to the extent that there the child has limited income potential and there are no special circumstances that deny this right. When a child is expected to have an income despite the disability, the expected income is to be deducted, that is, the appropriate rate of the average wages must be deducted from the compensation to the parents.

 

General damages: in cases of wrongful birth the mental and psychological harm continues throughout the parents’ (plaintiffs) lives. This damage is different and separate from the harm to autonomy, which is a one-time harm that occurs at the moment where choice is denied them. The ongoing and excruciating mental harm therefore warrants a significant level of compensation.

 

Violation of autonomy: the question of the link in the parents' suit between the causes of actions for wrongful birth and violation of autonomy is that in some cases where the harm to the parents for denying their right to autonomy – to decide whether to continue a pregnancy or to terminate it – can be distinguished from other harms and where violation of autonomy is an additional, substantial harm that goes to the core of the right, the violation of autonomy must be separately compensated (in addition to their right to claim compensation for any other direct damage caused to the parents). As for the extent of the compensation – the compensation must be individual, considering the concrete violation and its circumstances. That said, it has already been found that since this is an estimate of general damage, courts would make this estimate based on the circumstances and judges’ life experiences. As a general rule, the extent of the compensation for violation of autonomy must be directly proportional to how material the missing information was and how the violated interest was to the core of the right and how much it implicated that right. Where the court was persuaded that the plaintiff’s autonomy had been violated in a way that reaches the core of that right and on a material aspect, it must grant appropriate compensation that reflects the full severity of the violation.

 

The Matza Commission recommended that the legislature  “authorize the courts to include in their decisions instructions regarding the use of the financial compensation, as much as the court may see fit to do so in order to ensure the child’s needs are met. Additionally, we recommend legislation stating that the compensation designed to guarantee the needs of the child would not be considered property of the parents in case of bankruptcy, nor would it become part of their estate or be available for any garnishment or enclosure of any kind.” These recommendations are wise and reasonable, not just for this cause of action, but more broadly as well. We hope that the legislature will answer this call, and that until then courts develop the appropriate mechanisms with the tools at their disposal.

 

The outcome: in terms of abolishing the child’s cause of action, it will not apply to pending cases where the parents’ suit was not brought. Justice Rubinstein, in concurrence, believes that the outcome of this decision should be stayed for a year, and Justice Naor points out that there is no place to determine, through a transitional provision in the matter at hand, the fate of a child’s claim that has not yet been brought.

 

Justice Rubinstein believes that we are replacing a theoretically and practically difficult system with one that has no theoretical challenges but gives rise to practical difficulties. However, at the end of the day, he joins in principle the opinion of the Deputy President, while pointing out the difficulties and calling upon the legislature to pronounce upon the issue.

 

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

CA 1326/07

and counter appeal CA 572/08

CA 8776/08 CA 2600/09 CA 2896/09 CA 3856/09 CA 3828/10

 

 

 

Appellant in CA 1326/07 (Respondent in the counter appeal):

 

Lior Hammer

 

 

Appellant in CA 572/08:                                    The State of Israel

 

 

Appellant in CA 8776/08:                                  A (a minor)

 

 

Appellant in CA 2600/09 and Respondent in CA 2896/09:

 

Maccabi Healthcare Services

 

 

Appellants in CA 3856/09:

1.  Eran Sidi

2.  Tsipora Sidi

3.  Yigal Sidi

 

Appellant in CA 3828/10                                   Clalit Health Services v.

Respondents in CA 1326/07 (Appellants in the counter appeal):

1.  Professor Ami Amit

2.      Mor      Institute     for       Medical

Information Ltd.

3.  Clalit Health Services

 

Respondent in CA 572/08:                                A (a minor)

 

Respondents in CA 8776/08:

1.  Victoria Sharai

2.  Alex Walpert

3.  Maccabi Healthcare Services

4.  Dr. Yivgenia Mazor

5.  Kolmedic Ltd.

6. Dr. Yosef Bracha

 

Respondents     in      CA      2600/09                         and Appellants in CA 2896/09

1. Noam Sabagian

2.  Tsiona Sabagian

3. Hayim Sabagian

 

Respondents in CA 3856/09:                             1.     The  Sick  Fund  of  the  Histadrut haClalit

2.  Dr. David Kampf

 

Respondents in CA 3828/10:

1.  Chen Na'ava

2. Chen Eli

3.  The estate of Chen Ziv Or z"l

 

 

 

 

The Supreme Court sitting as a Civil Appeals Court

 

CA 1326/07 and counter appeal from the judgment of the Haifa District Court of 25 December 2006 in CC 745/02, given by the Honorable Judge

B. Gillor

 

CA 572/08 from the judgment of the Haifa District Court of 2 December 2007 in CC 259/02, given by the Honorable Judge B. Gillor

 

CA 8776/08 from the judgment of the Be'er Sheva District Court of 31 August 2008 in CC 3344/04, given by the Honorable Judge S. Dovrat

 

CA 2600/09 and CA 2896/09 from the judgment of the Jerusalem District Court of 29 January 2009 in CC 8208/06, given by the Honorable Judge

Y. Adiel

 

CA 3856/09 from the judgment of the Jerusalem District Court of 2 April 2009 in CC 1338/97, given by the Honorable Judge A. Habash

 

CA 3828/10 from the judgment of the Jerusalem District Court of 11 April 2010 in CC 8459/06, given by the Honorable Judge I. Inbar.

 

 

 

Before President D. Beinisch (emeritus), President A. Grunis, Deputy President E. Rivlin, Justice M. Naor, Justice E. Arbel, Justice E. Rubinstein & Justice S. Joubran

 

For Petitioner in CA 1326/07:            Carmi Bustanai, adv.;

Shimrit Cohen-Daum, adv.

 

For Respondent 1 in

CA 1326/07 and counter appellant:    Chaim Zelichov, adv.; Ofir Ben Moshe, adv.

 

For Respondents 2-3 in CA 1326/07

And counter appellants:                      Ilan Uziel, adv.

 

For Appellant in CA 572/08:              Orit Sohn, adv.; Michal Sharvit, adv.

 

For Respondent in CA 572/08:           Meiron Cain, adv.; Akram Mehajne, adv. For Appellant in CA 8776/08:                                              Eli Lotan, adv.; Dalia Lotan, adv.

For Respondents 3-6 in CA 8776/08, Appellant in CA 2600/09 and Respondent in CA 2896/09, Respondents in CA 3856/09 and

Appellant in CA 3828/10:                   Yaakov Avimor, adv.

 

For Respondents in CA 2600/09 and Appellants in CA 2896/09

and Appellants in CA 3856/09:          Amos Givon, adv.; Itai Givon, adv. For Respondents in CA 3828/10:                                              Anna Rife-Liganza, adv.

For Amicus Curiae:                             Eli Zohar, adv; Inbal Zohar, adv.; Meirav Sagi, adv.

 

For the Israel Bar Association:           Asaf Posner, adv; Eti Libman, adv.;

Avishai Feldman, adv.

 

 

JUDGMENT

 

 

Deputy President E. Rivlin: Background

1.ThehearingofthebeforeuswasconsolidatedfordecisionthequestionstheissueknownasacauseofforTheariseswhereaiswithsomeitisthatbydefendants–usuallypersonnelwhohadtheasapatient–wouldhisTwoseparatecausesofactionarisethenegligentconduct: parents' causeof action,andthecauseof action thechild The

 

child's cause of action is customarily called "wrongful life", in order to differentiate it from the parents' cause of action, which is called "wrongful birth".

 

2.Thetheoffor"wrongfuland"wrongfulwastwentyfiveagointheoftheCourtinCA518/82Zeitsov v. Katz,40(2)IsrSC85(1986)ZeitsovInthatwhichwashandeddownbyapaneloffiveitwasheld,thatisnothingpreventingrecognitionoftheparents'causeofaction–"wrongfulofaction –inofthetortandinaccordancewithregularTheeventhen, around the question the of the cause of action.

 

The Court, per the majority of Justices on the panel, recognized the cause of action of the child – the "wrongful life" cause of action. However, the four majority Justices disagreed regarding the theoretical reasoning for recognizing the "wrongful life" cause of action, and as a result, also regarding the question how the extent of the damage should be measured.  That decisive question remained answerless in that case.

 

3.DeputyM.D.Levinconcurring,heldthatthecauseofactionshouldbeonlyintherare"initcanbeheldthatitwouldhavebeenbetterforacertainpersontohaveborn. Atitwillbeasocietalthatitisaofconsensusitwouldhavebeenbetterforacertainnottohavebeenbornthantohavebeenbornwithsevereatp.97).Inthosetoherthebirthof thechildisthatwas causedtoofthatinmonetary itwas is"he isliableforbeingshouldprovidehimthroughwhichtheofthecanbelessenedtotheboundaryofthepossible"(Zeitsov,p.100).Ben- Porat, DP clarifiedthatherisnotforatobebetweenachildwithandaborn"buttoexhausttheinorderthathefunctionandininferiorThissolution,sheleadsto"thetakingintoofthefactthathavingbeenborn(evenifagainsthisbestisachildbeforeuswho isentitledto athatis worth evenif onlywithinthe of his at p. 100).

 

4.(thenJustice)A.Barak,inwhoseopinionJustice)S.Levin,alsodeterminedthatcauseactionfor"wrongfullife"shouldberecognized.However,theuponwhichhispositionisisandcaninfluencescopeofcasesintheofaction"wrongfulandthewayisAtofthisviewaccordingto"thedutycareofthedoctorhimtotakereasonablecautionarysothatthewillnothaveadefect.Itisthusalsotherightthatnotbeturnhislifealifeofdefect.Theminordoeshaveanyrighttoalackofalife.Thewhichthelawisnottheinhavingalife,butrathertheinterestinlifewithoutdefect.Thus,thewhichtheisliableforisthecausingoflife,orlackofalife.Thedamagewhichthedoctorisliableforisthecausingofdefectedlife… the doctor is liable for causing defected life, and that is

 

formulated by comparing the defected life to life with no defect" (Zeitsov, at p. 117). According to that approach, the child's cause of action will be recognized also in cases in which the disability is not exceptionally severe, and does not necessarily lead to the conclusion that it would have been better for the child not to have been born. Estimation of the damage, according to this approach, is not calculated according to the difference between the disabled life and a lack of life (as per the approach of Ben- Porat, DP), but rather according to the difference between the disabled life and life without disability. Although had the tort not been committed the damaged party would not be alive, and certainly would not live a life with no disability, according to the position of President Barak, the uniqueness of the issue allows estimating the compensation in comparison to life without disability, in the framework of flexible interpretation that is adapted to the principle of restitutio in integrum.

 

  1. Justice E. Goldberg, dissenting, determined that the existence of a cause of action for the child against the doctor, due to whose negligence the child was born disabled, cannot be recognized at all in circumstances where without the negligence the child would not have been born at all. Preferring the pre-creation nihil over life, even in rare cases – thus determined Justice Goldberg – is impossible.

 

6.Althoughin theZeitsov casethecase of aninfantdueto"wrongfullife",fromitundecided.Asainthethatpassedsincethewashandedaroseintheruleofthecauseofactionforofthesefromtheexistenceof twotheofthecauseofandthewayiscalculated,andfromtheveryofcauseof Thus,thecourtstointer aliawhatapersonwithhowextentofthatshouldbewhetherslight(oronlyseverecanacauseofactionforaninfant.However,withoutstare decisistheZeitsov rulingwasnotinafashion.Duetoandtothetoalsorelatedwedecidedtotheofthecasesbeforeus,andtoorderbeforeanexpandedpanelofsevenjustices.IntheofD.of292011,wediscussedquestions ofthat decision:

 

  1. Does a cause of action exist and what is its legal basis? In light of the time that has passed since the Zeitsov ruling was handed down and/or the continual difficulty in implementing it, should it be altered, or should one of the approaches expressed in the Zeitsov ruling be preferred over the other?

 

  1. Assuming that a cause of action exists: should the parents' action (wrongful birth) or the child's action (wrongful life) be recognized, and in which cases will each of the causes of action arise?

 

  1. The principles of calculation of compensation in both actions: in the parents' action: comparison between a healthy child and a child with defects, or another standard? In the child's action: comparison between no life and a life with defects? A comparison between a life with defects and a healthy life?

 

  1. Proving a causational link in the parents' action (proof that they would have terminated the pregnancy had they known of the expected defect). In the child's action – is his death better than his life?

 

  1. Is violation of autonomy – as a cause of action in the parents' action – an additional cause of action, or an alternative to the cause of action for wrongful birth?

 

It was further held in that decision that the questions of principle shall be decided first in the framework of a partial judgment, after which the  individual hearing in each of the cases would continue, to the extent that would still be necessary. Thus, we shall relate in this decision to the questions of principle only and to the arguments regarding those issues. The decisions in the various cases shall be heard separately and not before this panel, and we are not determining anything regarding the liability of any of the defendants in the cases before us.

 

The Parties' Arguments

 

7.Thecounseloftheinthecasesbeforeussupportedrecognitionofthecauseoffor"wrongfullife",totheofPresidentBarakinZeitsov Itwasthatofthisisitunnecessarythebetweenlifeandnolife,andoflifeInaddition,arguethatapproachadvancescertaintyandintheasitnotawhichisinherentlyvague,adefectandadefect;andevenisincomparisontoaiscalculatedbyathatisintortforbodilywhichisacceptedbytheItisthecomparisonsuchthatofthementitleatoandothersdoentitleapersontoisnotappropriateeither,asitbetweenofconsiderationsandsupportorderingfortheinvolvedindisability,evenifitisaThecounselevennotethattotheiritispossibletoprovideafullfortheofthechildintheoftheaction,theoftheparentsistotheperiodwhichthechildisuponhisItisthatfromthestandpoint,itisappropriate to the of action of thechild when thedoctorevenifisinthelinkbetweentheandthefromtheThethatnon-recognitionoftheactionwouldquasi-immunitythetodoctorswhoactedandthatthereisimproperinthatwithdefectispreferable tono life, when itisraisedbyadoctorwho performstests the purpose ofwhich isto allow in case ofa defect.

 

  1. The counsel of the defendants in the various cases, on the other hand, support annulment of the child's action for "wrongful life". According to their position, President Barak's approach in the Zeitsov case is at odds with fundamental principles of tort law, whereas the approach of Deputy President Ben-Porat is impractical, because the court has no real tools with which to compare between a situation of life

 

with disability and a situation of no life. In addition, the very decision that there are situations in which it would have been better for a person not to have been born since he has a defect contains a problematic societal-moral statement which contradicts fundamental values of society regarding human dignity and the sanctity of life. In any case, the defendants are of the opinion that if the cause of action for "wrongful life" is recognized, the approach of the Deputy President should be preferred, and differentiation should be made, between "severe" defects regarding which it can be said prima facie that it would be better for a person had he not been born and more "minor" defects which do not establish a cause of action, according to the extent of the person's independence of functioning and his ability to be of benefit to himself and others, to be integrated into society and to live a life that entails satisfaction, meaning, and enjoyment. It is argued that an additional possibility is to make such a differentiation on the basis of criteria used by the pregnancy termination committees when deciding upon authorization to perform an abortion at the viability stage. Moreover, it is argued that the parents' cause of action should not be recognized either, as the expenses they bear in caring for their child constitute mitigation of damage, and where the party who suffered the direct damage – the child – has no cause of action, nor do the parties who mitigate the damage have a cause of action. The conclusion, according to the defendants' approach, is that only the parents' action for violation of autonomy should be recognized.

 

  1. The Israeli Medical Association and the Israel Bar Association also appeared in the proceedings, with the status of amicus curiae.

 

The medical association extensively discussed the existence of a trend which it calls the aspiration to give birth to "the perfect child." According to its stance, the statement that it would be better for a person not to have been born leads to an intolerant attitude toward disabled persons, and as such considers them as having an inferiority due to which their birth should be prevented in advance. Thus, the medical association is of the opinion that the approach of Deputy President Ben-Porat in the Zeitsov case should be adopted, whilst determining clear criteria which would limit the use of the cause of action for "wrongful birth" (or "wrongful life") to the most difficult and severe cases, as per its definition. These criteria, proposed the medical association, can be based upon Health Ministry instructions to the multi-district pregnancy termination committees. The medical association further points out the sentiment of doctors in the field of obstetrics and gynecology, as well as that of those serving in the pregnancy termination committees, according to which the concern regarding a law suit is likely to lead to an increase in medical tests and to "superfluous" medical procedures or abortions.

 

  1. The Israel Bar Association is of the opinion that the causes of action for "wrongful birth" and "wrongful life" should be recognized. It is further of the opinion that the practical difference between the various stances that recognize actions for "wrongful life" in principle is smaller than it first appears. Thus, because even according to the position of President Barak the child-claimant must prove, in the framework of the element of causal link, that the defect is so severe that the pregnancy termination committee would have authorized an abortion due to it; and because, on the practical plane, there is no essential difference between the two approaches regarding compensation. The Israel Bar adds that to its understanding, the caselaw on the question of wrongful birth does not have an influence on the number

 

of abortions that will be performed or upon the scope of tests during pregnancy, as it is the parents' desire for a healthy child that leads to these results, not the question of provision of retrospective compensation. Furthermore, the Israel Bar Association argues that public policy regarding the question of performing abortion should be determined in the framework of the law applying to it, and not in the framework of tort law. On the merits, the Israel Bar Association supports the position expressed by President Barak in the Zeitsov case. Decision of the question whether it would be preferable for a person not to have been born, it is argued, is a difficult one, which should be avoided and which is likely to lead to caselaw that is not uniform. The Israel Bar Association further argues that refraining from recognition of the child's cause of action is likely to leave him with no compensation if his parents make unenlightened use of the compensation granted them, or if he is put up for adoption after birth.

 

  1. Last, note that the Attorney General notified us that the Minister of Justice ordered the establishment of a public commission, at his request, headed by the Honorable Deputy President (emeritus) E. Mazza (hereinafter: the Mazza Commission), in order to formulate his stance regarding the existence of a cause of action due to wrongful birth and the question of the appropriate boundaries of such a cause of action. The findings of the Mazza Commission were submitted to the Court on 19 March 2012, in the framework of "the Report of the Public Commission on the Subject of 'Wrongful Birth'" (hereinafter: the Commission Report). However, the Attorney General did not express his stance regarding the questions put up for decision before us. Thus, we refrained from viewing the findings of the report themselves as part of the parties' arguments, as they lack the status in law of the stance of the Attorney General.

 

The operative findings of the commission did not serve as part of the pleadings before us; nonetheless, it is worth noting that the Commission Report is the fruit of circumspective, serious and thorough work; sitting in the commission were the best of experts, many witnesses were heard, position papers from various sources were submitted, a survey of all the relevant issues was presented, and all was examined thoroughly and meticulously. We read the report and found that in certain respects, the commission went in the direction of the findings we reached. In light of that, we shall refer below to the Commission Report to the extent that it is relevant to the cases at hand.

 

12.consideringtheoftheaspectsofissue,wehavereachedtheinthelegalrealityofourtwentyfiveyearstheZeitsov rulingwashandeddown,thecauseofaction–thecauseofactionfor"wrongful – can no longer berecognized.

 

There are substantial legal difficulties, regarding both the element of damage and the element of causal link, which make difficult the recognition of this cause of action in the framework of the tort of negligence. But above and beyond these legal difficulties, there is moral, substantive difficulty in the view that the life of a person who was born with disability can be considered – in the eyes of the infant himself – as "damage". Recognizing this difficulty, we in effect continue according to the moral view outlined by President Barak in the Zeitsov ruling. Furthermore, as detailed below, we wish to realize the proper purpose at the foundations of the Zeitsov ruling –

 

granting compensation, as fully as possible, to fulfill the needs of the disabled child; however, to do so via the cause of action of the parents, which does not raise those difficulties.

 

The Difficulties in Recognizing the Cause of Action for "Wrongful Life"

 

13.Asnotedabove,attheoftheZeitsov ruling,whichthecauseofactionforlife",aretwoandseparateAccordingtobothapproaches,aofactionfor"wrongfullife"isbaseduponthetortofnegligence.Theelementofnegligenceisinby notin of theonthepriortoorduringthe(orconcernofadefectinthefetuswhichisgoingtobeborn,orbynottheoftheinfantinwhetherregardingexistenceofconcernofadefectorregardingtheneedfor,oradditionaltestscanorruleexistenceofconcern"(theCommission Report, at

p. 38). Both approaches assume that this element has been established. However, each of the approaches raises logical or legal difficulties regarding the existence of one or more or the other elements of the tort of negligence: damage or causal link.

 

The Difficulties regarding the Element of Damage

 

14.TheintheofDeputyBen-Poratraisessubstantivethe element of damage. Accordingtotheofisdefinedinthecauseofaction,astheornolife(theofthechildnotandwith(theofthetoofthechildisthedamagetodefinitionrequiresjudicialofthequestionthereareinwhichithaveforanottobeenandthusrequiresquestionsfoundinofphilosophy,morals and religion, regarding the of existence, asopposedto withtheseisanissueforfromthestandpointthe(theCommission Report,at39).Andindeed,President(thenJustice)A.Barakout inhis theZeitsov ruling,as follows:

 

 

This approach [of Deputy President Ben-Porat – E.R.]… once again raises the question whether the Court is able to determine that in certain conditions the lack of a life is preferable to a life of suffering. Do our worldview, our approach regarding life and our lack of understanding of non-existence, allow us, as judges, to determine that there are indeed situations, even if they be rare, in which it is preferable not to live than to live a life of suffering? What is the meaning of such "preference"? When the life expectancy of a person is shortened, we assess this suffering of his. This assessment is difficult, but it is possible, as we are able to assess the meaning of life; but how can we assess the meaning of the lack of life? … When we compensate for death or for shortening of life expectancy, we do not compare the state of life to the state of death, and we do not determine

 

the preference of one over the other, as we do not have the tools to do so. All we do is recognize the right to continue living – even if in suffering, and even if with defect… thus, how can we assess lack of life? According to which rational standards can a reasonable person determine that even in the most extreme case, lack of life is preferable to life with defect? (Zeitsov, at p. 116; emphasis added).

 

15.Indeed,fromthenormativeitappearsthatitisnotfortheCourttoawhosuffersfromacertainofdisabilitywouldbeifhehadnotborn.theCourtinno wayhasthetoolstoreachaasthelacksnatureofandsuchcourse,isnottobe("nohasyetfromthere"–saidtheCourt–"noonehasyetfromthereinordertotellwhatthelackofalsothebyRonenPerryolohaImZoTviotNezikinbeginb'Avla'33(3)M507,545-546andreferencesinnote177PerryFromtheaswell,itisbetterthatthediscussionnotbebycourts.Asaccordingtothe of Deputy Ben-Porat, to onlyinrarecases,andinfantmostapproachrequiresdecisionthequestionwhatthoseseveredefectshowever,lackingaforsuchtheisthatcourtisnotsocialthat canrulingsonquestions" Commission Report,at p. 39).

 

16.Itshouldthatinsuchacasetheisnotquantifyingthebutratherifanydamageoccurredall.Indeed,generallycaselawisflexibleregardingprovingofofthereinherentprobativewhichdonotdependupontheparty.Soitisprovingfuturelossese.g.:CA10064/02"Migdal" Chevra l'Bituach Ltd. V. Abu Hana,60(3)IsrSC13,par.7-9Abu Hana)).flexibilityshouldbewithpurespeculation.Intheus,theisnotonlyintheofthedamage,buta–whetherthereis, oris not, Thus notes Perryin this context:

 

I agree that difficulties of calculation and assessment… need not deter the courts from determining liability; however, a differentiation should be made between cases in which the existence of damage is obvious but it is difficult to assess its scope, and cases in which the question of the existence of damage cannot even be decided. Non-monetary damages are damages that most of us have experienced, directly or indirectly. Our acquaintance with various situations of non-monetary interests allows us to know when a change for the worse in the situation of such an interest takes place. The question of the existence of damage is not unsolvable. The only question, of course, is the question of quantification – but in light of the fact that from the conceptual standpoint this problem arises only after the question of liability has already been decided, it cannot justify (a priori) negation of that liability. The situation under present discussion is different.  Non-existence is a situation with which nobody is familiar, and

 

thus comparing it to a situation of existence is always impossible. Without a relational plane to which the present situation of the plaintiff can be compared, we cannot determine if damage has been caused or not. The problem is not merely a problem of quantification" (Perry, at p. 547).

 

17.ThestateintheUnitedtheofdefining thenature of a of life":

 

The argument that the child was in some meaningful sense harmed by being born and would have been better off not being born suggests that there is a perspective, apart from our life and world, from which one can stand and say that he finds nonexistence preferable to existence (Goldberg v. Ruskin (1986), 113  Ill.  2d 482).

 

It was further written that:

 

Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the  law  can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence ( Becker v. Schwartz (1978), 46 N.Y.2d 401, 386 N.E.2d 807).

 

18.Lackingthecapabilitytothequestionifandistoadisabledlife,theisthetheofapproachesontheNota bene: itisnotaofapproaches;ifitwere,itbetobetweenthembyaCourtruling.Astheare itis to anycriteriondecidinganditistoaextentuponfeelingandworldview.Thus,foronecanwhatthelifeclearlytotheofenjoymentandapersonoutofhistofillhiswithvalue;topersonalqualityhisofhisandthesurroundinghissubjectivetoalive;histoandbeawareofthewondersofandability.Aquestionisthosebemeasured–fromtheofthechild,whodoesnotknowanyrealityfromtheonewhichhewasborn,ortheviewpointahealthyperson.aretoacannotbeT.Orrwellinin 5587/97 The Attorney General v. A, 51(4) 830, 858 (1997):

 

… we must refrain from adjudicating regarding the quality of life of [the child] in comparison to a regular child his age. We must focus upon examination of the well being of [the child] from his own viewpoint. When dealing with a child who suffers from defects from birth – even severe defects, like in the case before us – his life, with its disability – is the "whole" which that child enjoys. From the standpoint of [the child], another way of life was never a matter of consideration.  The quality of

 

life is that quality which is possible in light of the severe defects he suffered. That, from his standpoint, is everything. Such a life is not worthy of less protection than the life of a child who was born and developed normally.

 

Even if it were possible to point out situations in which it is clearly preferable for a person not to have been born – and, as aforementioned, we lack that ability – there is real difficulty in defining and demarcating those situations in a way that would allow prediction.

 

  1. Deputy President Ben-Porat proposed in Zeitsov to solve this difficulty through examination of the question if it would have been better for a person not to have been born through the lens of "the reasonable person"; in other words: whether the reasonable person would be of the opinion that the life of the damaged party isn't worth living. However, without any knowledge regarding the quality of the alternative to life with disability, nor is it possible to find assistance in a standard of reasonableness in order to find a proper answer. Furthermore, the ability to get enjoyment and value out of life despite disability is also subjective, and one can assume that it varies from person to person. Indeed, at times use is made of the term "not worth living" regarding life with severe disability; however, that is merely a phrase intended to indicate the existence of great difficulty, and in no way whatsoever can it be derived from it that the situation of nonexistence is truly preferable.

 

  1. Nor does the proposal to rely upon criteria of the pregnancy termination committees in order to demarcate the type of cases in which the "wrongful life" cause of action would be recognized provide a real solution to the question whether and when nonexistence is preferable to existence. The considerations which guide the pregnancy termination committees are not limited to the question if being born or not being born serves the welfare of the fetus; the committees also consider, in the framework of the entire balance, the welfare of the parents and their desire to terminate the pregnancy. Authorizing an abortion in a given situation does not necessarily inform of a widespread societal view according to which in such a case it is better not to be born. The authorization is based, at least partially, upon the societal view regarding the pregnant woman's right to autonomy, her dignity and privacy, and the scope of the right to have an abortion. The scope of the right to terminate the pregnancy is not, therefore, comprised of the interests of the fetus alone. For that reason, and as I shall yet clarify, non-recognition of the child's action does not create legal disharmony in relation to the recognition of the right to have an abortion in certain situations.

 

21.AninDeputyapproachexistenceofthenotional duty of care thechild,whichisprovideandcorrecttohisastoanabortion.Indeed,thereisnoadutyofcareapersonwhohasnotbeenborn(asisdoneinofmedicalrecognitionofadutyofcareina"wrongfullife"requiresofaprotectednottobebornincertainThisbeonthetoanabortion,as(andtheanddoesadutytowardthefetus. Andindeed,theopinionof

 

Justice Goldberg in Zeitsov was based upon the view that a right not to be born does not exist.

 

In conclusion, the approach of Deputy President Ben-Porat requires determining, in certain cases, that there are situations in which it would have been preferable for a person not to have been born. That determination cannot be established from the legal standpoint, and it is not proper to establish it from the substantive-moral standpoint. Lacking such a determination, it is not possible to prove the element of damage in the wrongful life cause of action (and see also: Bilha Kahane "Pitsui begin Kitsur Tochelet Chayim 've'haShanim ha'Avudot' baTviot b'Ila shel Holada b'Avla" Mishpatim al Atar D 1, 4 (5772)).

 

The Difficulties Regarding the Element of Causal Link

 

22.TheofPresidentA.BarakinZeitsov theintoabetweenlifewithdisabilityandnon-existence.Barakabasisforof"wrongfullife"ofaction.Accordingtohistheelementshoulddefinedas"defectedlife",inwithwithoutdefect.inthisasolutionisprovidedfortheinthedamageinthetortandavoidstheneedtotheinit(thatis:whetherandwhenitcanbesaiditwouldbebetterforaninfantnottohavebeenbroughttheotherareno regardingthe of causallink.

 

  1. The difficulty in determining a causal link between the negligence and the damage of a life with disability stems from the uncontroversial fact that it is not the negligence of the doctor which caused the damage of "defected life" (as per the definition of President Barak). Indeed, it is not the doctor who caused the disability of the infant, as even without the negligence, the infant could not have entered the world any other way than with his disability. In other words: proper medical care could not have led to prevention of the disability, and the possibility of that particular child being born without disability does not even exist. Deputy President Ben-Porat discussed this in Zeitsov, stating that:

 

There was no possibility that the minor would enter the world whole and healthy. Determination of damage, by the vary nature of damage, requires comparison between the situation of the claimant without the tort, and the situation after it. The only interpretation of this rule in our case is, to my best understanding, the comparison between nonexistence (without the negligence) and defected existence (as a result of the negligence). Charging the harmer on the basis of a comparison with a healthy child means punishment on foundations of an imaginary reality… The solution which my colleague supports seems to me to be impossible from the legal standpoint, and with all due respect – also unjust (Zeitsov, at p. 105; emphasis added).

 

The approach of President Barak thus deviates from the fundamental principle of the law of compensation regarding restitutio in integrum (and see the criticism by Perry in his aforementioned article, at pp. 559-560).  Note that President Barak was

 

aware of these difficulties, but wished to find a solution which would allow appropriate compensation for the children and their parents.

 

24.Thelegalarenottobe"overcome".Fromofjustice,ofthelackofcausallinkbetweenthenegligenceandtheonlydamagewhichcanbebetweenwithdisabilityandwithnoisthatdidnottotheparty;inacasewouldbeanFromthatthereisalsonoplaceforthethat"oneoftheweightyreasonsfordoctorsotherinthecaseathand,isthereasonisatortfeasor,acrossfromhimthereisaninfantwithadefect–asevereone–andinthatiscalledforthetwo,theofjusticetendstowardthetheinfant,wholivewithhisdisability…itbesaidthatthesituationistoawhoincarwithandandaninnocentwhoatlastescapedawithaCanitbesaidthatthe'mens rea'ofahastydriverwho,onlybychance,didconcludedrivingafatal is fromthedriverwhomthe drivingconcludedinaresult?"T57-58(1997)).Thistypeofalthoughitbevalidfroman(andinfactistheofisnotvalidthetortlawlawdoesnotduetonegligent conduct,butratherduetocausing damage negligentlySoitisofjustice,andsoitisfromtheofdeterrence.itbesaidthattheresultsofdefendant'sconductwithversusnonexistence)aredamage;andwheretheonlydamagethatcanbeshown(lifewithdisabilitylifewithnowasnotby –it is not or just to upon the defendant.

 

Note also, that the path from recognition of the child's action for wrongful life directed against the doctor, to recognition of the child's action against the parents who begat him, is a short one; and no approach is interested in advancing that.

 

Annulling the "Wrongful Life" Cause of Action – The Moral Aspect

 

  1. Recognition of the cause of action for "wrongful life" is faulty not only due to legal difficulties, but also due to difficulties regarding principles and values.

 

Definition of life itself – even if it is life with disability – as damage, and the determination that it would have been better for a certain person not to even have been born, contain an unacceptable violation of the view that life has inherent value, that does not diminish, and certainly does not disappear, due to the existence of a defect or the existence of a disability (see, e.g.: Roee Gilber "haTsorech baHachra'ot Kashot baTviot shel Chayim b'Avla veHolada b'Avla: He'arot v'Hearot b'Ikvot T.A. (Mechozi Haifa) 259/02 A v. The State of Israel" MOZNEI MISHPAT 7 441, 466-467 (2010)). This view is an important and necessary part of our belief and recognition of the sanctity of life, the value of the individual and his dignity, and the right of people with disabilities to dignity and equality.

 

26.SinceZeitsov wasdownfiveyearsago,thesereceivedBasicLaw:DignityandLibertyinArticle1,thetowhichthebasicoftheindividualinareupontherecognitionof the value of the individual and the sanctity of his life.TherecognitiontheseisbasedonuniversalvaluesandvaluesoftheStateofasaJewishstatethattheoflife.Theisborninimage.Havingbeenborn,hisdignityandthesanctityofhislifearetobeHisisbetheastheyHislifeispriceless,bethethey   Life is a value– for all.

 

This moral-legal view is expressed well in the Equality of Rights for People with Disabilities Law, 5758-1998, which determines as a "basic principle" in section 1 that:

 

The rights of people with disability and the commitment of society in Israel to those rights are based upon the recognition of the principle of equality, the recognition of the value of the individual who was created in [God's] image and on the principle of the dignity of every person.

 

Section 2 of the law determines that its objective is:

 

…to protect the dignity and liberty of a person with disabilities, and to entrench his right to equal and active participation in society in all areas of life, as well as to provide an appropriate solution for his special needs in a way which will enable him to live his life with maximal independence, privacy and dignity, whilst realizing his full ability.

 

  1. According to our societal view, in the framework of our moral belief, and pursuant to our legal principles, the definition of the life of a person with disabilities as "damage" is not appropriate, is not moral and is not possible. It substantively violates the principle of the sanctity of life. Quantification of the damage of a person with disability – in comparison to the possibility that he would not have been born at all or in comparison to a person with no disability – is itself a violation of the value of his life and of the presumption, which is not to be negated, that the value of the lives of people with disabilities is absolute, and not relative.

 

28.Indeed,thecostofof"wrongfulofactionissosevere,thatinFrance,inwhichCourdeCassationrecognizedcauseofactionforlife,itwasofdisabledwhichthatandthatitrelatestoinferiorevento(asaresultofthatinter alia,lawinwasSee:GilSigalhaMa'arechet–alHoladaveKol(vol.4)10,12SigalPerry,pp.524-525;M.Duguet,Wrongful Life: The Recent French Cour de Cassation Decisions 9 J. HealthLaw 139 (2002)).

 

This position of principle is also expressed in the caselaw of the courts in the various United States. Thus, for example, it was determined in the aforementioned Bruggeman case:

 

It has long been a fundamental principle of our law that human life is precious. Whether the person is in perfect health, in ill health, or has or does not have impairments or disabilities, the person's life is valuable, precious, and worthy of protection. A legal right not to be born – to be dead, rather than to be alive with deformities – is a theory completely contradictory to our law (718 P.2d at 642).

 

So it is there, and so it is here in Israel as well.

 

In Berman v. Allan, 80 N.J. 421, 404 A. 2d 8 (N.J. 1979) it was written that:

 

No man is perfect. Each of us suffers from some ailments or defects, whether major or minor, which make  impossible participation in all the activities the world  has  to  offer.  But  our lives are not thereby rendered less precious than those of  others whose defects are less pervasive or less severe.

 

For the same reasons themselves, the Court in Canada refrained from recognizing the "wrongful life" cause of action, clarifying that this view is common to all of the Common Law systems, excepting a small number of states in the United States:

 

It is Unlikely that Canadian courts will entertain wrongful life claims in the near future. There are many technical and policy objections to them and this has led to a rejection of these claims in all common law jurisdictions other than a few American states… There is a risk that the recognition of a wrongful life claim will devalue the sanctity of life in general and the plaintiff’s life in particular. A finding of liability may  be  interpreted  as  a  finding that the plaintiff’s life is a legally recognized loss and  that  he would be better off dead (Osborne, supra, at 141).

 

  1. It is thus no wonder that the result we have reached unanimously, regarding the need to annul the "wrongful life" cause of action, was reached also by the majority of the members of the Mazza Commission, who determined that "the recognition of the cause of action is at odds with the fundamental values of our law" (the Commission Report, at p. 38). This result is also in line with the current law in the great majority of the Common Law states, as clarified below.

 

Comparative Law

 

  1. The difficulties I have discussed led the great majority of the various legal systems not to recognize a  cause  of  action  for  "wrongful  life".  The great majority of courts in the states of the United States do not recognize the cause of action for "wrongful life" (see, e.g.: Phillips v. United States, 508 F. Supp. 537 (D.S.C. 1980) (applying South Carolina law); Elliott v. Brown, 361 So. 2d 546, 548 (Ala. 1978); Walker ex rel. Pizano v. Mart, 790 P.2d 735, 740 (Ariz. 1990); Lininger v. Eisenbaum, 764 P.2d 1202, 1210 (Colo. 1988); Garrison  v.  Medical  Center  of  Delaware,  Inc. , 571   A.2d   786 (Del. 1989); Kush  v.  Lloyd, 616  So.  2d  415,  423  (Fla.  1992); Spires  v.  Kim,  416

 

S.E.2d 780, 781 - 82 (Ga. Ct. App. 1992); Blake v. Cruz, 108 Idaho 253, 698

P.2d 315 (Idaho 1984); Clark v. Children’s Memorial Hospital, 955 N.E.2d 1065, 1084 (Ill. 2011); Siemieniec v. Lutheran General Hospital, 117 Ill. 2d

230, 251, 512 N.E.2d 691, 702 (Ill. 1987); Cowe v. Forum Group, Inc., 575

N.E.2d  630,  635  (Ind.  1991);  Bruggeman  v.  Schimke,  718  P.2d  635 (Kan.

1986); Kassama  v.  Magat,  792  A.2d  1102,  1123  (Md.  2002);  Viccaro  v.

Milunsky, 406  Mass.  777,  783,  551  N.E.2d  8,  12  (Mass.  1990); Taylor  v.

Kurapati, 236 Mich. App. 315, 336 - 37, 600 N.W.2d 670, 682 (Mich. 1999);

Eisbrenner v. Stanley, 106 Mich. App. 357, 366, 308 N.W.2d 209, 213 (Mich.

1981); Miller  v.  Du  Hart,  637  S.W.2d  183,  187 (Mo.  App.  1982); Smith  v.

Cote, 128 N.H. 231, 252, 513 A.2d 341, 355 (N.H. 1986); Becker v. Schwartz,

46  N.Y.2d  401,  386  N.E.2d  807 (N.Y.  1978); Azzolino  v.  Dingfelder,  315

N.C. 103, 337 S.E.2d 528 (N.C. 1985); Hester v. Dwivedi, 733 N.E.2d 1161,

1165 (Ohio 2000); Ellis v. Sherman, 512 Pa. 14, 20, 515 A.2d 1327, 1339 - 30

(Pa.  1986); Nelson  v.  Krusen,  678  S.W.2d  918 (Tex.  1984); James  G.  v.

Caserta,   332   S.E.2d   872,   880   (W.   Va.   1985); Dumer   v.   St.   Michael's

Hospital,   69   Wis.   2d   766,   233   N.W.2d   372 (Wis.   1975); Beardsley   v.

Wierdsma, 650 P.2d 288, 290 (Wyo. 1982).

 

31.ThereasoningusedasabasisincaselawistoThus,foritwasthatcourthasnostandardaccordingtowhichitthatithavepreferableforanottobeenborn,thatincaseadoeshavetherighttobeborne.g.:Elliot v. Brown, 361 So. 2d546, 548 (Ala. 1978)).The lackof therightnottobeborn, itis does not contradictthe of a to have an abortion:

 

[A] legal right not to be born is alien to the public policy of this State to protect and preserve human life. The right of women  in certain cases to have abortions does not alter the policy ( Elliot, 361 So. 2d at 548).

 

An additional reason, that is also used by the courts in the various states, is that there is no real possibility of quantifying the compensation for "wrongful life", as that would require determining the relative value of the situation of nonexistence – a situation regarding which there is no information (see: Siemieniec, 512 N.E.2d at 697). The courts in the United States also discussed the difficulty in determining criteria for differentiation between cases where the severity of a person's disability leads to a situation in which it would have been preferable for him not to have been born, and cases where the disability is not that severe (see, e.g.: Siemieniec, 512 N.E.2d at 699).

 

  1. Three states alone in the United States have judicially recognized the cause of action for "wrongful life": California (see: Turpin v. Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (Cal. 1982) ; Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 447 (Cal. 2d Dist. 1980)); Washington (Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, 656 P.2d 483 (Wash. 1983)); and New Jersey (Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (N.J. 1984)). In this caselaw no answer is found for the difficulties in recognizing the "wrongful life" cause of action. In fact, most of the reasoning at the basis of the judgments that recognized the "wrongful life" cause of action regards the desire to assist, by way of charging compensation, people

 

who need it due to their disability, at least where it is possible to locate a person who acted negligently.  Thus, for example, the court declared expressly in Procanik:

 

Our decision to allow the recovery of  extraordinary  medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction (478 A.2d at 763).

 

It is obvious that we cannot use such reasoning to recognize a cause of action in tort law. It might be taken into consideration, and should be taken into consideration, in determining the amount of compensation after the tort has been recognized.

 

  1. A similar approach, which characterizes most of the courts in the United States, was taken by other Common Law states. In McKay v. Essex Area Health Authority [1982] 1 QB 1166, it was determined in England that lacking express legislation determining otherwise, Common Law does not recognize a cause of action for "wrongful life" (in England such a statute was enacted; the case revolved around a girl born before the statute  entered effect). Influenced by this case, and for reasons  similar  to  those  detailed above, the cause of action for "wrongful life" was rejected in Canada as well (see e.g.: Bovingdon v. Hergott, 2008 ONCA 2, 290 D.L.R. (4th) 126; Phillip

H. Osborne, Essentials of Canadian Law: The Law of Torts 140-141 (2000)) and in Australia (Harriton v. Stephens (2006) HCA 15).  In the latter case, the Supreme Court of Australia rejected the action of a child for wrongful life, ruling that the damage cannot be assessed by comparing life with a defect to no life whatsoever (see also: Waller v. James (2006) HCA 16).

 

In Germany the Federal Constitutional Court ruled that the cause of action for "wrongful life" should not be recognized ( BVerfGE 88, 203 (269)), as it contradicts the constitutional principle of human dignity, entrenched in Article 1 of the German basic law. Germany of today, having internalized the horrors of the past, has recognized in its constitution and the caselaw of its courts the duty to sanctify human life.

 

The Supreme Court of Australia also reached a similar conclusion (OGH (25.5.1999) JB1 1999, 593). In France as well, as a result of caselaw that recognized the cause of action of the child, the law was amended in 2002, determining that a person cannot claim that his very birth caused him damage. The law allows the child's action only if the doctor's conduct directly caused his disability or worsened it (for a circumspective survey of the comparative law and of caselaw of additional states, see: Perry, at pp. 518 -525; the Commission Report, at pp. 32-38; Sigal, at p. 12).

 

  1. The understanding that an independent cause of action for "wrongful life" should not be recognized is thus shared by many legal systems. There is, then, a sort of "global consensus", common to the various legal systems, regarding negation of the cause of action for "wrongful life" (at very least without  legislation  that  determines  otherwise).   It  seems  that  a  judge,  who

 

sees himself (inter alia) as part of this global legal system, and who takes part in his writing in the "global chain novel", to paraphrase the well known metaphor of Ronald Dworkin ((RONALD DWORKIN, LAW'S EMPIRE 228-29 (1998)), will place before his eyes the existence of the existing consensus regarding a certain legal issue:

 

[Global judicial cooperation] can also serve as a restraint imposed upon domestic courts, preventing them from exceeding the borders of the general consensus about what the "novel" should tell... referral to foreign law is similar to Dworkin's metaphor of a chain novel. When a judge considers himself part of the system - for that matter the global legal system - he will tend to avoid a significant departure from the global consensus (Eliezer Rivlin, Thoughts on Referral to Foreign Law, Global Chain-Novel, and Novelty, 21 Fla. J. Int'l L. 1, 15 (2009).

 

Indeed, a global consensus does not oblige a court in our legal system, and in fitting cases, there might be a good reason to deviate from it; however, there is no doubt that it should be given appropriate weight, while relating to the reasons and reasoning that led to its creation, and examining whether it should be adopted in the framework of the Israeli legal system as well. In the issue before us, we should not deviate from the global consensus. The Israeli legal system sanctifies human life, and blocks any detraction from the value of life.  The life of a person, any person, is better than his death.

 

  1. Thus, our conclusion is that the child's cause of action for "wrongful life" can no longer be recognized. However, from the practical standpoint, as clarified below, a significant expansion of the cause of action at the disposal of the parents of the infant due to "wrongful birth" – a cause of action the recognition of which is not controversial – will allow granting the parents compensation that will cover the costs of raising him and all of his needs even after he grows up, and for the entire period of his life expectancy.

 

The Parents' Cause of Action – an Action for "Wrongful Birth"

 

  1. Recognition of the action for wrongful birth – the parents' action – does not raise the same problems of law and principle involved in recognition of the child's action. On that issue there was full agreement between all the Justices on the panel in Zeitsov. Thus wrote President (then Justice) Barak in that case (at p. 113):

 

"Indeed, recognition of the liability of the doctor toward the parents is in line with the regular rules of negligence law… between the doctor and the parents (who belong to the type  of people who are cared for by the doctor) there is proximity, and the doctor has a notional duty of care. On this issue, there is no importance to the differentiation between a situation in which a doctor was negligent and without the negligence the minor would have been born healthy, and a situation in which had it not been for the negligence the minor would not have been born at all.   In both

 

cases, we are dealing with the damage of parents and the deviation of doctors from the proper level of care. In the proper balancing between the interests of the various parties, the monetary burden of the medical negligence should be cast upon the creator of the risk and his insurer. It is to be hoped that in this way a proper level of health can be ensured. There is no justification for granting immunity to doctors who have caused  damage  by  their negligence… parents have a right to plan their family, and in that framework it is appropriate for the attending doctor to take proper cautionary measures toward them and inform them of the risks involved in conception, pregnancy, abortion, and birth.

 

A necessary element in formulating liability through the tort of negligence is the element of damage. The existence of this element does not, in and of itself, raise any special problem in the context of the parents' action…

 

We too are of the opinion that the parents' cause of action for wrongful birth is in line with the regular definition of the tort of negligence, and does not raise any real difficulty regarding the issue of restitutio in integrum. Indeed, in the context under discussion this cause of action raises difficulties regarding the element of causal link. In addition – and President Barak discussed this Zeitsov – "questions might arise regarding the heads of damages for which compensation is given (i.e., whether compensation  is given for the expenses and pain and suffering involved in the  raising  of  a child), and regarding the calculation of the compensation ( i.e., should the benefit stemming from raising the child be set off from the loss)" (id, at p. 113). These difficulties cannot negate the recognition of the parents' cause of action, and in any case, they will be fully worked through below.

 

  1. From the standpoint of morality and principle as well,  the  parents' claim does not raise the same difficulty that arises regarding the  infant's action. In the parents' action, the life of the child itself is  not  defined  as damage. The damage is manifest in the additional monetary implications and the psychological implications which the parents are forced to bear, due to the negligence. Accepting the parents' claim does not mean that the child's life has no worth, or that it would be better for him himself had he not been born; its meaning is that the parents were denied the possibility of choosing not to raise a child with disability, with all the difficulty that entails. There is a real difference between relating to a living and breathing child, with a personality, desires and feelings – as someone whose life is worthless, to the point that it would be better for him had he not been born, an attitude which we are not willing to accept; and relating to the right of the parents, as they were, prior to the negligent act, to choose whether to continue the pregnancy or to have a legal and permitted abortion, at the stage when their child was a fetus, devoid of independent life. Therefore, there is no contradiction between  my approach regarding the inherent value of life and the recognition of the right of the parents to choose not to bring into the world a child with disability of a severity that legally allows having an abortion.

 

When examining the parents' aforementioned right to choose, the entirety of the considerations must be taken into account, including their right to build their lives as they choose (within the law) and the considerable difficulties on the psychological, practical and even economical planes involved in raising a child with disability. Nota bene: that is not decisive in the moral issues that are external to the tort issue, which deal mainly with the question when and to what extent the parents' choice to do everything in order to avoid raising a child with disability  is  legitimate,  from  the  moral standpoint. It suffices to say that this choice is composed of many factors, which do not necessarily include a worldview according to which the life of a child with disability is not a life worth living; it is a legal choice, which is at the disposal of the parents and is denied them due to an act of negligence.

 

  1. Indeed, naturally the point of view of the parents usually changes after the birth of their child. Naturally,  once  their  child  has  been born, his parents love him. The disability only intensifies  the  love. Nonetheless, they are often capable – and the court too is capable – of separating their present love for their child from their sincere statement that if they would have been given the choice in advance, before their child was born and became a person, they would have chosen not to bring into the world a child with disability like his.

 

  1. Finally, note that we found no basis in the argument raised before us, according to which the parents do not have a cause of action as sufferers of direct damage, but only as mitigators of the child's damage. In CA 754/05 Levy v. Mercaz Refui Sha'arei Tsedek (yet unpublished, 5 June 2007)(hereinafter: Levy) we discussed the  nature  of  the  differentiation between a sufferer of primary damage and a sufferer of secondary damage:

 

"Classification of damage sufferers as primary or secondary is the result of the attempt to identify the character of the causal link between the damage caused them and the tortious conduct. The primary damage sufferer is the party whose injury – physical or property – is the direct result of the tort; the sufferer of secondary damage is the party injured as a result of the injury caused to another party" (id, at par. 22 of the judgment).

 

According to that standard, the parents' damage, which establishes a cause of action for them due to "wrongful birth", puts them in the position of primary damage sufferers. The injury to them, both on the monetary plane (derived from their duty to care for the special needs of the child) and on the non-monetary plane, is a direct injury, due to the very fact that their child was born due to the negligence.  The tortious conduct led directly to the damage of the parents. Not only was the negligent act committed directly toward the parents; the injury to them was also a  direct  injury.  The  injury  does  not derive from the disability of the child – as that disability was not even caused by the negligence; the injury stems from the costs that they bear and from the pain and suffering that they experience. The birth of  the  child  was accompanied with an economic and psychological injury to the parents. This injury  is  in  fact  the  realization  of  the  risk  at  the  outset,  which  makes  the

 

conduct of the damager tortious. If in the Levy case the mother was on the borderline between being a sufferer of primary damage and the sufferer of secondary damage, in the case under discussion the border is crossed, and it can be clearly said that there is a direct injury (and see, also: Asaf Posner "haIm Yoter hu Tamid Yoter? Hebetim Ma'asi'im laMachloket baSugiat haHolada b'Avla", at note 6 (to be published in the S. Levin Volume)).

 

  1. The conclusion is that there is no or hurdle of law or principle preventing recognition of the parents' cause of action for wrongful birth, and regarding that issue we should not stray from the rule determined in Zeitsov. Twenty five years after the Zeitsov ruling was handed down, we are making more flexible the worthy purpose which stands at its base, and allowing a solution to the great majority of the medical, rehabilitation,  and  assistance needs of the child, but we do so in the framework of his parents' action for wrongful birth.

 

  1. Alongside the theoretical recognition of the parents' cause of action due to wrongful birth, I see fit to discuss three issues that arise regarding the implementation of that cause of action.  They were not discussed extensively in Zeitsov, and the time has come for a clear rule to be determined regarding them by this Court – these issues regard the question of proving the causal link, assessment of damage, and the head of damages of injury to autonomy.

 

Proving the Causal Link

 

  1. A central difficulty inherent in the wrongful birth cause of action relates to the element of causal link between the tortious act (the doctor's negligence) and the alleged damage (that stems from the child's disability). Indeed, as any tort action, the parents' action also requires proof of a causal link, and it has already been ruled on that matter that "the task of deciding the question of the existence of a causal link between the breach of the disclosure duty of the doctor and the damage manifest in wrongful birth – is not at all easy. It requires the court to try to search the souls of the parents and to determine what their position would have been regarding the question of continuing the pregnancy had they been exposed to all of the information they needed (Hendel, J. in CA 9936/07 Ben David v. Entebbi (yet unpublished, 22 February 2011)).

 

In the cases under discussion, it is clear that the infant's disability is a birth defect that was not caused as a result of the doctor's act or as a result of his omission. In such circumstances it must be proven in the framework of proving the element of causal link, that had it not been for the negligence, the parents of the infant would have chosen to terminate the pregnancy by having an abortion, and thus would have refrained from bringing him into the world. Against that backdrop, a number of practical, moral and theoretical questions arise: how will the parents prove in such actions the element of causal link, in other words, that had it not been for the negligence they would have chosen to terminate the pregnancy? Is it appropriate, in light of the psychological and moral difficulties which examining the parents on the witness stand raises, to waive the requirement of proving causal link in cases for wrongful birth completely?  Is the court permitted to rely upon group considerations

 

as a basis for deciding the question of causal link? These questions will be examined below.

 

  1. In order to prove the causal link between the negligence and the various types of damage stemming from the child's defect, it must be shown, in the first stage, that if all of the relevant medical information (information which was not brought to the knowledge of the parents due to the negligence) would have been before the pregnancy termination committee, the committee would have permitted the parents to terminate the pregnancy. In the second stage, and only if the answer to the first question is positive (as otherwise, in any case the causal link is broken), the parents must show that if it weren't for the negligence, they indeed would have applied to the pregnancy termination committee for permission (Mr. Posner, in his aforementioned article, calls stages "hurdles": "the objective hurdle" requires proof that the pregnancy termination committee would have approved the termination of the pregnancy; and "the subjective hurdle" requires showing that if it weren't for the negligence, the woman would have decided to terminate the pregnancy).

 

  1. Proof of the parents' entitlement to terminate the pregnancy pursuant to a decision of the pregnancy termination committee relies on clear criteria, entrenched in statute and in Health Ministry guidelines. Performing artificial abortions in Israel is arranged in sections 312-321 of the Penal Law, 5737-1977 (hereinafter: the Penal Law). Pursuant to the provisions of that law, performing an abortion ("termination of pregnancy") is conditional upon the informed consent of the woman and permission from the pregnancy termination committee. The makeup of the committee and the causes for granting permission are generally set out in sections 315-316 of the Penal Law. For our purposes the cause determined in section 316(a)(3) of the law, regarding an infant that is "liable to have a bodily or psychological defect," is important. To this general provision we must add the guidelines of the Health Ministry, which detail how the committee is to employ its discretion, according to the stage which the pregnancy has reached. On this issue, an important criterion is the question of the fetus' reaching the "viability stage", set at the age of 24 full weeks. Whereas the "regular" committee hears applications for termination at the beginning of a pregnancy, over this age of pregnancy, a "multi-district committee", as defined in Health Ministry circular 76/94 of 28 December 1994, hears the application for termination of pregnancy. Health Ministry circular 23/07 of 19 December 2007 is intended to arrange the issue of termination of pregnancy at the viability stage, and determines on that issue a detailed hierarchy of disabilities, ranked according to their influence on functioning (slight, medium, and severe disabilities). The circular determines a clear relationship between the type of disability, the risk that it will occur, and the stage of pregnancy.

 

  1. The criteria that guide the committees serve, de facto, to demarcate the boundaries of the wrongful birth cause of action, as this cause of action does not arise
  • due to lack of causal link – where the disability is not of the type that would lead to the granting of permission to perform an abortion. Furthermore, there is a logical- statistical fit – which is an appropriate one – between the considerations that the committees take into account in their decisions, and the considerations that guide the parents when they wish to receive permission to terminate a pregnancy. In light of that, it is appropriate that the pregnancy termination committee decision serves also as

 

a sort of refutable presumption regarding the parents' stance about terminating the pregnancy.

 

That presumption may help in solving a part of the difficulties that arise from the second stage needed in order to prove the causal link. As stated above, the parents must prove that if it hadn't been for the negligence (that is to say, if the full relevant medical information had been before them), they would have chosen to terminate the pregnancy. It is uncontroversial that requiring the parents to prove that they would have terminated the pregnancy, by examining them on the witness stand after their child has come into the world, raises considerable difficulties.

 

46.Thefirstfromtheveryneedtoahypothetical factualchain:wouldifthewouldhaveknownabouttheyindeedappliedtofortotheiftheyhaveapplied–wouldthehavetheirAndifitwouldhavethe–wouldtheThisnotonlyfortheneedtoquestionsariseseverydayincases.fortheKadosh rulingtheinthecausaltestsinoftheconsentcauseofaction,totheneedtoassesanevent(CA1303/09 Kadosh v. Beit haCholim Bikur Cholimpar.ofopinion5MarchKadosh"Theaccepted–thuswaswritteninanothercase–"arenotappropriateforcasesinwhichtheassesshowagivenwouldhaveactedifthehadprovidedhiminadvance with the information the and in a (CA4384/90Vaturi v. Beit haCholim Laniado,51(2)IsrSC171,191 (1997)).

 

47.InKadosh –inofconsent–we regarding theproperforprovinglink (id, par.26 ofopinion).Inotedthattheobjective testtotheinterestthe control his as it"distances fromthe desire ofparticularandreliesupondesireconsiderationsof J. inCA2781/93Da'aka v. Beit haCholim  'Carmel', Haifa,IsrSC526,606Da'aka)).Yet,aschoiceofasubjective alsoraisesbecausethestagewhenthepartyknowsthetortioushisOnissue(thenJustice)D.isnodoubtthatisintheoftheattheashealwaysdealsthiswithabackwardglance,atatimewhen hefromtheof Inthe courts thatitisnottorequireainagonyduetothathewasgiven,totestifyandpresenttheanswertothewhathewouldhavedoneatthethedecisiontothewasmade,ifhehadknownofallthe (Da'aka, at p.553).

 

These difficulties raised by the implementation of the subjective test for examining the existence of causal link are infinitely intensified when dealing with the

 

parents' claim for wrongful birth. The assumption that "it isn't human" to expect that a patient "testify and reliably present" how he would have acted had he known the facts necessary for decision as they really were, is reinforced in the context under discussion and emphasizes the psychological difficulty that parents are forced to deal with. Indeed, in addition to the regular difficulty inherent in such testimony, the parents are also forced to explain how their testimony on the witness stand, that they would have chosen to terminate the pregnancy in case of a defect like the one that occurred, is in line with their love for their child, once he has been born. In this context, the argument has been made that where the court accepts the parents' factual version, according to which they would have aborted the fetus, a moral problem is also created, and a rift is liable to be caused between the parent and the child. That, however, is not so.

 

  1. Indeed, the moral dilemma involved in investigating the parents on the witness stand reflects, in full force, the complexity of the cause of action for wrongful birth. The question of causal link is examined ex ante, and examines what the parents would have decided at the time of the pregnancy had they been supplied with the full relevant data; however their testimony is given ex post, after their child has already been born (this dilemma also arises regarding the damage question, and shall be discussed in that context below). Mr. A. Posner answers this dilemma, in the framework of a dissenting opinion in the commission, as follows: "a completely correct answer is that when the question of termination of pregnancy (or the question whether to get pregnant) was under discussion, the infant did not exist, at all (in case the question was whether to get pregnant), or in his present form, the form of a living person. A parent is not required to tell his child 'I am sorry that you are alive' or 'I don't love you'; it is sufficient that he persuade that when the pregnancy was in its early stages, or the fetus not yet a known person, the mother would have terminated the pregnancy" (Commission Report, at p. 105). There is no better concretization of parental sentiment than the words which came from the heart in one testimony before the district court (in CC (Be'er Sheva District Court) 3344/04 R. W. v. Maccabi Sherutei Briut (unpublished, 21 August 2008)). The testimony – of a woman raising her handicapped son – was that she would not have hesitated to terminate the pregnancy had she known of the existence of any defect, on the basis of the difficulties she experiences in the daily confrontation with the difficulties of her previous child, who suffered from cerebral palsy. Despite her unwavering position regarding getting an abortion, the mother testified: "I love R. very much, he contributes an enormous amount to the family, he is our light, he is our sun… I do not say he constitutes damage to the family, but if I would have gotten an abortion, in another year the same R. would have been born, but with a hand, and then he would have contributed to the family in the same way but he would not suffer from all the problems that a handicapped child has… we now are crazy about him, he is everything for us, that is clear…" (id, par. 4 of the judgment).

 

  1. An additional difficulty arises on the practical level. It is argued that proving the causal link element might be more difficult for certain groups of claimants than for other such groups. The courts have concluded, more than once, that certain parents would have chosen not to have an abortion, even if they would have had all the needed information. The courts so ruled, finding assistance in data on issues such as lifestyle and religious belief; existence of fertility problems and difficulty in conceiving in the past; as well as the age of the mother and her obstetric history.

 

According to this argument, for example, an ultra-orthodox mother, whose first pregnancy was achieved in excruciating fertility treatments at a relatively late age, is likely to have a more difficult time proving that she would have an abortion had she been aware of the existence of a risk that the child would be born with a defect, in comparison to a secular young mother with a number of children whose pregnancy was spontaneously achieved. Moreover, the use of such data led to the argument – which was sounded in the hearing before us as well – that the requirement of proving that had it not been for the negligence the parents would have chosen to terminate the pregnancy, harms parents who are willing to bear the difficulty of raising a child with disability and rewards the very parents who are not willing to bear that difficulty (a similar argument is also raised in the legal literature in the United States, and see: Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141, 172 (2005); it is further claimed that parents who due to their religious beliefs would not have an abortion are thus discriminated against.

 

  1. As a result of these difficulties, in a number of judgments of the first instance the opinion was expressed that the requirement of proof that the parents would have chosen to have an abortion can be completely waived, and replaced with a legal presumption. Thus, for example, Judge M. Drori ruled in CC (Jerusalem District Court) 3198/01 A. v. The Jerusalem Municipality (unpublished, 12 May 2008) that:

 

prima facie, such an a-priori presumption stands in contradiction to one of the foundations of tort law, that the conduct of the defendant or defendants was the sine qua non of the damage… thus, for example, if it is positively proven that the damaged party would have been born with the defect even if there hadn't been any negligence, prima facie, it should not be said that the negligence is the reason for the damage, and the defendants should not be charged for it…

 

However, in my opinion, there is great and important public benefit in adopting the approach of Judge Benyamini [regarding waiving the requirement of proof that the parents would have had an abortion – E.R.]. Not only do we prevent the need for the parents' testimony, with their retroactive vacillations, but Judge Benyamini's approach entails equality between all pregnant women, regardless of religion, race or belief.

 

… is compensation for a secular Jewish woman certain, but all the other women must explain what the range of beliefs is in the religion to which each of them belongs, and whether or not they would have had an abortion?! Is there a need, in each particular case, to focus upon the details of that religion, on the approaches and nuances in it, and to determine whether according to that religion abortion would have been permitted in the circumstances of that defect, and after that, will there be a need to categorize the claimant mother in the relevant subgroup in that religion and to determine whether she would have had an abortion, according to what is customary in that subgroup of that religion?!" (id, par. 285-286 of the judgment).

 

And see the judgment of Judge A. Benyamini: CC (Tel-Aviv District Court) 1226/99 A.L. v. Yaniv (unpublished, 29 March 2005).

 

  1. Despite the difficulties described above, the requirement of proving the existence of a causal link between the negligence and the damage cannot be waived (this conclusion was reached both by the majority and by the minority opinions in the Mazza Commission – see p. 47 and 98, respectively). A solution like that proposed above is not possible in the framework of existing tort law. It is, de facto, the forfeiting of proof of one of the elements of the tort of negligence, as without proving that if it had not been for the negligence the parents would have chosen to have an abortion, it is not possible to prove causal link between the negligence and the birth of the child. Waiving proof of the causal link element in actions of this type would lead to casting liability upon parties who may not have actually caused the damage, and to entitlement of plaintiffs with compensation for damage which was not caused them by a tort. Not only is such a result at odds with tort law and its objectives; in addition, it does not do justice, in that term's basic meaning, with the parties in the suit. In the American legal system as well the mother is required to prove that had it not been for the negligence, she would have had an abortion (see, e.g.: Dumer v. St. Michael’s Hospital, 69 Wis. 2d 766, 776, 233 N.W.2d 372, 377 (Wis. 1975); Alan J. Belsky, Injury as a Matter of Law: Is this the Answer to the Wrongful Life Dilemma? 22 U. Balt. L. Rev. 185 (1993)), despite the potential that the parents' testimony on the issue may harm the welfare of the child )Keel v. Banach, 624 So. 2d 1022, 1026 (Ala. 1993)(.

 

  1. Thus, to the extent that the parents are interested in suing on the basis of the cause of action of "wrongful birth", they must prove the causal link element of that cause of action. The refutable presumption, based upon the decision of the authorized committee, will assist in overcoming these difficulties.

 

Despite the fact that the proof of the causal link element cannot be waived, there is difficulty in dealing with the details of the religious beliefs of the parents, as well as in dealing with other group-based considerations. In any event, attempting to retrospectively determine how the parents would have chosen to act inherently involves a great extent of uncertainty. The various indications in which courts find assistance – including data such as a religious lifestyle, age, obstetric history and performance of additional tests in the framework of private medicine, are merely general indications, which, practically, rely to a significant extent upon group data. Categorizing the parents in one of these groups or another is plagued with a significant extent of speculation. In cases in which the court must rely upon general, group data, there is no choice but to choose a certain level of abstraction, and courts often determine working assumptions which assist in dealing with the inherent uncertainty (and see, in the context of calculation of compensation: Eliezer Rivlin and Guy Shani "Tfisa Ashira shel Ikaron Hashavat haMatzav le'Kadmuto baTorat haPitsui'im haNeziki'im" Mishpat v'Asakim 10 499 (2009)). Furthermore, group data are not always evidence of the tendencies of the individual. Even in routine times – but especially in times of crisis – the individual is likely to stray from group dictates and conventions, especially when they are group conventions. In fact, the individual's original position might be more complex and multifaceted than can be assessed according to his belonging to one group or another. Thus, significant weight should be given to the first question that was presented regarding causal link – the question

 

whether the pregnancy termination committee would have approved an abortion in a given case.

 

As mentioned above, the decision of the pregnancy termination committee should serve as a sort of refutable presumption regarding the parents' stance about having an abortion. In general, where an abortion is permissible according to the societal convention, as expressed in the criteria which guide the pregnancy termination committee, as said, it can be assumed, as a factual assumption, that typically, the individuals in society would also plan their actions in a similar fashion. Nonetheless, it should be emphasized that this is a factual, not a normative, assumption; in no way can it determine that refraining from having an abortion, in circumstances in which the pregnancy termination committee would have allowed an abortion, is unreasonable or undesired conduct. Its meaning is merely that from the practical standpoint, it should be assumed that typically, the individuals in society usually act, at least proximately, in a way that fits the criteria that guide the pregnancy termination committees.

 

  1. It should also be emphasized that the presumption according to which, in circumstances where the pregnancy termination committee would allow an abortion the parents would also have submitted an appropriate application to the relevant committee, can not be refuted exclusively through general data, i.e.. regarding membership in a certain religious sector. Such data is at times likely to be relevant, but since it represents a single aspect of all the individual data regarding the woman, great caution should be employed in making conclusions upon it. Thus, it should be remembered that the question to be decided is not what is the stance of the religion to which plaintiffs belong regarding having an abortion in the circumstances of the case, but rather how the particular claimants standing before the court would have acted. As mentioned above, the individual himself is likely to stray from group dictates or conventions, especially when the conventions are group conventions; and relating to him, factually and normatively, as an individual whose choice is not predestined, is inevitable. Thus, it is not sufficient that the parents' religion prohibits them from having an abortion to determine the result; in order for that datum to be relevant for decision, the court must be persuaded that the mother would have obeyed that prohibition de facto. Of course, it is not impossible that having an abortion in certain circumstances would be permitted within the various religious beliefs, and often there are various approaches in the different religions regarding the circumstances which justify having an abortion (on this issue see, e.g.: CC (Jerusalem District Court) 3130/09 A.K.V. v. Sherutei Briut Klalit (unpublished, 28 November 2011); CC (Jerusalem District Court) 9134/07 Alsayad v. The State of Israel (unpublished, 17 February 2011)).

 

In fact, even today the courts of first instance do not rely exclusively upon data such as religious affiliation, and more significant weight is given to the individual data of the case (see e.g.: CA 7852/10 Tidona v. Kupat Cholim Leumit shel ha'Histadrut ha'Ovdim (unpublished, 15 March 2012); CC (Haifa District Court) 1014/05 Zidan v. The State of Israel (unpublished, 24 December 2011); CC (Central District Court 5193-11/07 S.M.S. v. Malach par. 5(d)(99)(unpublished, 14 September 2010); CA (Haifa District Court) 10492/97 Aftabi v. Sherutei Briut Clalit (unpublished, 30 September 2001)).

 

  1. Finally, it should be emphasized that where it has been proven that the pregnancy termination committee would have allowed an abortion, even if the parents could not prove that they themselves would have chosen to terminate the abortion, that does not derogate from their ability to sue for the damage caused to them due to the violation of their autonomy, and in other words: their right to make such a significant decision in their lives in an enlightened fashion. For that damage they are entitled to separate compensation, and I shall discuss that extensively below.

 

The Question of Damage and Calculating Compensation

 

  1. Having passed the hurdle of the causal link, it must be further determined, in the framework of the parents' action, what damage entitles them to compensation. The question that needs to be considered is whether the parents are entitled to compensation only for the additional expenses they must bear for the medical care and assistance for their child – and at a certain point living expenses (hereinafter: the Additional Expenses), or should they also be compensated for the expenses involved in raising their child, including those which they would have borne had the child been born healthy. These expenses, which a healthy child requires in any case (hereinafter: the Regular Expenses), are considered the "base cost" (or "base layer", in the words of commission member Asaf Posner, adv), as opposed to the Additional Expenses which stem from the child's disability.

 

56.Itisinatortaction,compensationisgivenonlyforthebytheandisnottheexpenseswhichwouldhavebeenborneevenifthewouldnotoccurred.Thus,forexample,whenaninfantisinjuredto(and birth), the for the of aidThecourtreduces,theofhoursneededtotakecareofthetheofhoursneededtoforachild,andisgivenfortheresultinginotheronlyfortheadditionalapersonwhoiswoundedinanandneedsa vehiclein ordertoget around, will receive only theadditionthatisfromhisinotherthethetheanditsandofacarandits(andtheexamplesintheCommission Report –thePosner opinion, at p. 115).

 

It would have been possible to think that the implementation of the restitutio in integrum test in the parents' action for wrongful birth would determine that had the negligence not occurred, the child would never have been born, so the parents would not have had to bear any expenses whatsoever for raising the child. Making the parents' situation as it would have been had the negligence not occurred according to the regular rules requires, prima facie, compensating them both for the regular expenses involved in raising a child and for the special expenses caused to them due to the child's disability. The "Additional Expenses", according to those principles, also include the regular living expenses.

 

57.inpractice,intheparents'actiononbasisofbirthcauseofthe"Additionaladultarethosebeyondregularexpenses. shouldnotbetotheparentsforthe

 

regular expenses involved in raising a healthy child, during the period before he reaches adult age; they should be compensated only for the additional, special expenses, which they bear due to the birth defect. Indeed, had the negligence not have occurred, the child would never have been born; however, there are  good reasons not to charge the negligent damager to pay all of the expenses of raising the child. These reasons reflect the complexity of the cause of action under discussion, and emphasize the theoretical and practical difficulties inherent in this cause of action, with which the courts of various instances have dealt over the years. What are these reasons?

 

Casting liability upon the defendant who caused the damage, as detailed above, is done from an ex ante point of view, and under the assumption that if the parents had been given a choice in advance, before their child was born, they would have preferred, under the particular circumstances, not to bring a child with that disability into the world; however, examination of the damage caused to the parents cannot be performed whilst ignoring the change which has occurred in the passage from liability to damage – the change manifest in the birth of the child. Examination of the damage must thus be done from an ex post point of view, which takes into consideration the fact of the child's existence, which is not considered, and must not be considered, in and of itself, to be damage. In retrospect, after the disabled child has been born, his very birth is not considered to be damage in his parents' eyes. The feeling of love which the parents feel toward their child also exists when the child is born with disability. Those feelings also exist if, had they been given a full choice at the outset, the parents would have chosen not to bring the child into the world. After he has entered the world, his parents want him and enjoy the intangible advantages stemming from his very birth and his upbringing. The Mazza Commission described this well in its report: "Indeed", it was noted, "the disabled life of the child itself does not constitute damage to the infant, and his parents as well, after he has entered the world, are not considered injured due to his very existence; however, as needs have been created which involve special expenses, the party without whose negligence these special costs would not have been created should bear them" (id, at p. 60).

 

The American Court described this in Marciniak v. Lundborg, albeit in a different context (of raising a healthy child whose parents did not want to be born), but from the viewpoint of the child, whose parents are suing for compensation for his birth. The following is applicable also to the need to compensate the parents for the Additional Expenses:

 

Defendants next argue that "awarding damages to the parents may cause psychological harm to the child when, at a later date, it learns of its parents' action for its wrongful birth thereby creating an 'emotional bastard.'" Again, we do not agree. The parents' suit for recovery of child rearing costs is in no reasonable sense a signal to the child that the parents consider the child an unwanted burden. The suit is for costs of raising the child, not to rid themselves of an unwanted child. They obviously want to keep the child. The love, affection, and emotional support any child needs they are prepared to give. But the love, affection, and emotional support they are prepared to give do not bring with them the economic means that are also necessary to feed, clothe, educate and otherwise raise the child. That is what this suit is about and we trust the child in the future will be

 

well able to distinguish the two. Relieving the family of the economic costs of raising the child may well add to the emotional well-being of the entire family, including this child, rather than bring damage to it (Marciniak  v.  Lundborg,  153 Wis. 2d  59,  67,  450  N.W.2d  243,  246

(Wis. 1990)).

 

  1. Of course, that cannot detract from the severity of the difficulties which the parents of disabled children experience or the suffering which is the destiny of parents who themselves experience the suffering of the child; for these damages – to the extent they are proven – the parents will be compensated separately, in the framework of the head of damages for pain and suffering. At the same time, the point of departure for the assessment of the parents' damage is that the life of the child – after he has been born – is not, in any way whatsoever, damage for which compensation should be made, and that this is how the parents also see it. Thus, the regular expenses which the parents bear for raising the child – are not damage. The damage is thus manifest in the Additional Expenses – the additional costs stemming from the negligence of the damaging defendant, and it is only natural that the parents receive compensation for them.

 

  1. Here the special and extraordinary force of the action for wrongful birth is revealed: the inherent dissonance between the negligence in providing the information necessary to make a decision whether to bring the child into the world and the character of the damage, which is caused after the child has already entered the world, when his very life is not considered damage.

 

Nota bene: the same conclusion, according to which the defendant is charged with the Additional Expenses, can also be reached from another perspective, which is actually the other side of the same coin: in principle, the positive results of the birth of the child must also be expressed, and as a practical issue, the way this is done in the framework of the doctrine of compensation is quantification of all of the intangible benefits stemming from the birth of the child and his upbringing, and discounting them from the compensation to which the parents are entitled. A general estimation of these benefits will approximately equal the regular expenses involved in raising a child. Discounting the regular expenses involved in raising the child from the total of all the expenses involved in raising him leads to those very Additional Expenses, which stem from the child's disability (to which the non-monetary damage must be added).

 

This concludes the discussion of compensation for the parents for the period before the child reaches adulthood.

 

60.theafterchildhisshouldbegrantedfortheiroftheirchild,asunlikecase,hisdependenceuponthemcontinuestodisabilityduringthisaswell,andinfact,for the entire period of his life expectancy.Inofforthesedamages,thereispreventingtakingintoaccountlengthofperiodofhiswhere,tohischildcontinuestobedependentuponhisparentsasanadult,especiallyduetofactthatthereisnoabouttheparents'intocareforneedsoftheirchildrenwhoareuponthatdutyis

 

even manifest in law, in sections 4-5 of the Family Law Amendment Law (Support), 5719-1959. It is uncontroversial that had there been no negligence, the parents would not have to bear the expenses of support for their child after he reaches adulthood.

 

During the period of his adulthood, had it not been for his disability, the child would be expected to earn his living. To the extent that the disability detracts from his earning ability, his parents have the duty to sustain him and to supplement what he lacks. In other words: during the child's adulthood, his parents bear both the special expenses due to his disability and his regular living expenses, which he himself would have borne, were it not for his disability.

 

  1. Where the child is expected to earn money despite his disability, the amount of his expected earning – in other words, the relevant part of the average salary in the economy – must be subtracted from the compensation granted to his parents. We have already ruled that it should be assumed that a healthy minor, when reaching adulthood, would earn the average salary in the economy, and that this salary would be used for his sustenance, in other words: his living expenses and welfare. From the practical standpoint, the parents should be compensated for the period of the child's adulthood, for all the "Additional Expenses", which, in said period, are the regular living expenses and the special medical and assistance expenses. Only if the infant is expected to earn a certain percentage of the average salary is there a need to subtract this percentage from the compensation. De facto, in the usual case, in which the injured child continues to be in his parents' house or in the community, the compensation paid to his parents will not be different than the amount of compensation which would be paid to him himself if he had a cause of action, in the framework of which he would sue for earning losses.

 

  1. This will be demonstrated numerically:

 

Let us assume that the average salary in the economy is 10,000. Due to his disability, the child's earning ability is reduced by 50%, in other words, a loss of 5,000 has been caused him, and this amount would be paid to him if he had a cause of action of his own. Let us assume, in addition, that he is also entitled to additional medical and assistance expenses (in comparison to a healthy child) of 15,000. In total, the compensation he would receive in his own suit would be 20,000. Seeing as the child does not have a cause of action, and the cause of action is that of the parents, they are entitled, in the usual case, to compensation for all the additional expenses, that is: 15,000 for medical and assistance expenses, and in addition, the child's regular living expenses, which they have to bear due to the detraction from the child's earning ability, in other words: an additional 5,000. In total, the amount that the parents will receive is identical to the amount that the child would receive if he had a cause of action.

 

It should however be remembered that the compensation is always individual; there thus might be situations in which the compensation changes; for example, when dealing with a child who is expected to live in an institution, which certainly might influence his living expenses.

 

  1. For the sake of comparison: in most of the cases from states in the United States, the parents were granted compensation only for the Additional Expenses that

 

they must bear in order to care for their child which are due to his disability, and they were not compensated for the regular expenses involved in raising a child:

 

Although the question of damages has presented a difficult and troublesome problem to those courts which have  considered  wrongful birth claims, we align ourselves with the majority of jurisdictions which have limited the parents' recovery of damages to the extraordinary expenses - medical, hospital, institutional, educational and otherwise - which are necessary to properly manage and treat the congenital or genetic disorder. Siemieniec v. Lutheran Gen. Hosp., 117 Ill. 2d 230, 260, 512

N.E.2d 691, 706 (Ill. 1987).

 

Another case clarified (emphasis added):

 

Indeed, the central policy of all tort law is to place a person in a position nearly equivalent to what would have existed had the defendants' conduct not breached a duty owed to plaintiffs, thereby causing injury. In the context of wrongful birth, this means the situation that would have existed had the child actually been born in the state of health parents were led to believe would occur. Damaged are not gauged against the state of affairs that would have existed had the child never been born, because parents always assume the costs of healthy children born to them, even if unplanned. This policy can be fulfilled here only by allowing recovery of all future extraordinary expanses [the child] will incur. Kush v. Lloyd, 616 So. 2d 415, 424 (Fla, 1992).

 

The decisions of the American courts were based upon various reasons, including those detailed above. Thus, for example, it was held that if, in principle, the parents were entitled to compensation for all of the expenses of raising their child, as had it not been for the negligence he would never have entered the world and his parents would not be required to bear any expenses for him, the intangible benefits involved in the birth and raising of a child, including a child with disabilities, must be set off from that compensation. It was held that those benefits equal, at very least, the regular expenses involved in raising a child (Ramey v. Fassoulas, 414 So. 2d 198, 200-01 (Fla. App. 3d Dist. 1982)). It was further determined that casting the regular expenses involved in raising a child upon a third party is not proportionate to the fault of the negligent party and is contradictory to the idea that the primary and predominant duty to care for the needs of the child, whether wanted or not, is that of the parents (see: Rieck v. Medical Protective Co., 64 Wis. 2d 514, 518-19, 219 N.W.2d 242, 244-45 (Wis. 1974); Ramey, at p. 200). Last, it has been emphasized that in their decision to bring a child into the world, the parents necessarily agree, of their own volition, to bear the regular expenses of his upbringing, and thus it cannot be said that these expenses were caused by negligence (Clark v. Children’s Mem. Hosp., 955 N.E.2d 1065, 1083 (Ill. 2011)). On the other hand, a minority of US state courts charged expenses for all of the expenses of raising a child born due to the defendant's negligence, as had it not been for the negligence, the child would not have been born at all (Robak v. United States, 658 F.2d 471, 479 (7th Cir. 1981)(.

 

64.InEnglandaswellthecourtstendnottoforfullexpensesoftheandtheisforthe

 

additional expenses. The English judgment in Parkinson v. St. James and Seacroft University Hospital NHS Trust  explained:

 

A disabled child needs extra care and extra expenditure. He is deemed, on this analysis, to bring as much pleasure and as many advantages as does a normal healthy child. Frankly, in many cases, of which this may be one, this is much less likely. The additional stresses and strains can have seriously adverse effects upon the whole family, and not infrequently lead, as here, to the break up the parents' relationship and detriment to the other children. But we all know of cases where the whole family has been enriched by the presence of a disabled member and would not have things any other way. This analysis treats a disabled child as having exactly the same worth as a non-disabled child. It affords him the same dignity and status. It simply acknowledges that he costs more. (Parkinson v. St. James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530).

 

Similarly, the courts in Canada follow the English system, and the compensation is granted only for the additional expenses stemming from his upbringing (Zhang v. Kan, [2003] B.C.J. 164, 2003 BCSC 5 (Can); Dean Stretton, The Birth Torts: Damages for Wrongful Birth and Wrongful Life, 10 Deakin L.R. 319, 324 - 25, (2005)).

 

65.Thisaccordingtowhichtheparentsshouldbeonlyforadditionalexpenses–wasalsobytheofoftheMazza CommissionItwasinCommission Report inthisthat"theofforthewehavedecidedtoisthatthewhonegligentlythebirthachildexpressedrealhandicapwhowouldnotbeenbornhaditnotbeenforthishasthedutytobearthemonetaryin providing the special needs of the infant which stem from his disability added–E.R.).Asthepeoplewhoareresponsibleforfortheinfantandcareofhisneedshisandtheybeartheofthiscostde factotheoftheparentstoandreceivetocoverneedsoftheinfantduetohisfromthepartyforshouldbe(id, p. 60).

 

However, as noted, "the Additional Expenses" in the usual cases also increase during the child's period of adulthood, such that they include his regular living expenses, which his parents must bear. Whereas the child lacks earning capability, the "Additional Expenses" thus include, in the usual cases, the living expenses as well, which, lacking evidence showing otherwise, equal the average salary in the economy.

 

  1. To sum up: a party who, by his negligence, caused the birth of a child with disability, who would not have come into the world had it not been for that negligence, has the duty to bear the additional expenses involved in raising the child, expenses which stem from his negligence, which reflect the child's special needs due to his disability, in accordance with the circumstances of each given case and for the entire period of the child's life expectancy. This compensation shall include all the additional expenses needed in the particular case, including: medical expenses, third

 

party assistance, rehabilitation expenses, education expenses including ancillary expenses, housing expenses and mobility expenses. During the child's adulthood, and for the entire period of his life expectancy, his parents shall be entitled to compensation for his regular living expenses as well, to the extent that he lacks earning ability and there are no special circumstances negating that entitlement.

 

  1. Note, incidentally, that a different question arises where the cause of action is for "wrongful pregnancy" (or "wrongful conception"), where the parents wished to avoid bringing children into the world at all, even healthy children, and due to negligence in medical care that choice was denied them (see, e.g., CC (Jerusalem District Court) 1315/97 A. v. Kupat Cholim shel haHistadrut haKlalit shel haOvdim b'Yisrael, IsrDC 5763(2) 309 (2004); CC (Haifa Magistrates Court) 4503/06 A. v. the State of Israel (unpublished, 4 March 2012)). Discussion of actions such as these and the scope of compensatable damage is not necessary for our purposes, and I shall leave it for when it arises. Note, however, that in other legal systems in cases in which a disabled child is born as a result of wrongful pregnancy as well, compensation has been granted only for the Additional Expenses (see e.g. in England, the aforementioned Parkinson case). This result is correct a forteriori in our case, in which the pregnancy in and of itself was wanted, but the parents wanted a healthy child. In any case, as mentioned above, there is no need in the circumstances of these cases to express an opinion on the question what the proper compensation is in the case of unwanted pregnancy in our legal system.

 

Non Pecuniary Damage

 

  1. Customarily, psychological damage sued for in an action for wrongful birth is categorized as "pure" psychological damage, lacking physical damage to the claimants. This classification is not devoid of doubts (compare, e.g. the enlightening judgment of Baroness Hale in the Parkinson case). In any event, the psychological damage in the case before us is ancillary to pecuniary damage, so it in any case does not stand alone.

 

  1. Even if the psychological damage caused to the claimants before us is categorized as pure damage, the entitlement to compensation for pure psychological damage which is not ancillary to relevant physical injury (see: Eliezer Rivlin "Pitsui'im begin Nezek lo Muchashi u'begin Nezek lo Mamoni – Megamot Harchava" The Shamgar Volume – Part C 32 (2003)), was already recognized in CA 243/83 Jerusalem Municipality v. Gordon, 39(1) IsrSC 113 (1985), where negligence liability was determined for pure psychological damage caused to the party directly damaged; later, the status of "quasi-directly" damaged parties was recognized as equal to that of directly damaged parties (the Levy ruling). In that case, compensation was granted to parents suffering psychological damage due to the death of fetuses due to negligence; similarly, the entitlement of partners to compensation for psychological damage caused them due to the woman's unnecessary abortion caused by medical negligence was recognized (CA 398/99 Kupat haCholim shel haHistadrut haKlalit v. Dayan, 55(1) 765 (1999)).

 

  1. In cases of wrongful birth the psychological damage continues for the lifetimes of the parents (the claimants). It is not single-event damage. It is not damage that is caused over a short period.  The parents must care for the child for the

 

rest of their lives. They are vulnerable to his suffering, and are entrusted with his welfare. They accompany his pain, his suffering day and night, and these become their pain and suffering. They direct their lifestyle in a way that will allow them to fulfill their responsibility for the child. Their life changes, at times completely. Activities that once seemed natural and easy to do become unbearably difficult. The need to care for the future of the child, with all their might, keeps them awake at night and drains their resources. This is continuous damage. It is different and separate from the violation of autonomy which is a single-event violation which takes place at the moment when the choice was denied them. The continuous and severe psychological damage thus requires large and significant compensation.

 

Violation of Autonomy

 

  1. The final question which requires our decision is the question of the relationship between the cause of action for wrongful birth and the cause of action for violation of autonomy, in the framework of the parents' action.

 

In Kadosh we extensively discussed the importance of the right to autonomy and the individual's right to sue for compensation due to violation of that right. It was again clarified that the right to autonomy is "the right of every individual to decide about his acts and desires according to his choices, and to act according to those choices" (the Da'aka ruling, at p. 570); this is a persons right "to write his life story" (the Abu Hana ruling, at p. 48). It was emphasized in Kadosh that "the individual's autonomy stands at the heart of human dignity. It is a right that constitutes a fundamental value in the Israeli legal system, and 'constitutes one of the central manifestations of the constitutional right of every person in Israel to dignity, entrenched in Basic Law: Human Dignity and Liberty' (the Da'aka ruling, at p. 571; HCJ 4330/93 Ganem v. Va'ad Mechoz Tel Aviv shel Lishkat Orchei haDin, 50(4) IsrSC 221, 233-234 (1996))"(par. 31 of my opinion).

 

Demarcation of the boundaries of the entitlement to compensation for violation of autonomy is carried out through demarcation of the violation which leads to entitlement to compensation:

 

"Only a violation in the heart of the right to choose, in "the 'inner penumbra' of the human right sanctifying autonomy (as stated in the Bruria Tsvi ruling) and on a substantial matter, will entitle the claimant to significant compensation. An example of such a violation can be found, as noted above, in medical care, "located in the inner penumbra of this right of every person to control his life", as "it might have a direct influence, and at times an irreversible one, both on his lifestyle and on his quality of life" (the Da'aka ruling, at p. 532). An additional example is a violation of a person's ability to weave his life story (the Abu  Hana ruling). A demarcated definition of the injury that leads to entitlement to compensation will help the courts entrench the status of the right to autonomy, but whilst charging compensation only in the fitting cases "(the Kadosh ruling, at par. 39 of my opinion).

 

72.Violationofisaheadofdamagesintheoftheofpar38ofopinion;seealso72oftheopinionofAmit, J.).Of

 

course, in an action for wrongful birth as well the violation of autonomy is likely to serve as compensatable damage. The question arises, what the relationship is between the head of damages of violation of autonomy and the other heads of damages in the parents' action.

 

In Kadosh I wrote that compensation for violation of autonomy is not granted to the damaged party "for the very violation of his constitutional right abstractly and in principle", but for "real result-based damage" caused him (in the words of the article of Yifat Biton "Ke'evim b'Eizor haKavod" Mishpat u'Mimshal 9 137, 145-146 (2005)(hereinafter: Biton)). These damages, which can be identified as "violation of feelings", include the feelings regarding "violation of dignity, psychological suffering, humiliation, shame, sorrow and insult, frustration, undermining of trust in others, undermining of one's view of oneself, and injury to the self assessment of the individual or his ability for self realization, both as an individual and as part of a group, and more (Biton, at p. 184). In order for damage for violation of autonomy to stand on its own –

 

Compensation for violation of autonomy can be sued for, even lacking other damage; in other cases it is possible to sue for such compensation in addition to or aggregation with bodily damage that has been caused, including in addition and aggregation to other non-pecuniary damage, in a situation of two separate kinds of damage. This is not novel, as the tortfeasor must compensate for all the damage he caused, and if he caused more than one kind of damage, he shall compensate for that which he caused. In that sense it is a factual and not a legal question" (Kadosh, par. 45 of my opinion).

 

This view derives from the recognition of violation of autonomy (to the extent that it is in the penumbra of the right and regards a substantial issue) as reflecting real and true damage. Such damage might come separately and differentiated from other damages, both pecuniary and non-pecuniary, because refraining from charging compensation for it would deviate from the principle of restitutio in integrum (and see also the opinion of the commission – the Commission Report, at p. 62). Of course, not in every case is there separation between the damage from violation of autonomy and other damage (for a survey of various possible cases in this context see: the Kadosh ruling, at par. 45 of my opinion). There might be overlapping between them. However, where separation is possible, and the violation of autonomy is an additional substantial violation in the penumbra of the right, negating additional compensation for it is like revoking the injured party's entitlement to compensation for any other head of damages (and see also the Commission Report, in which it was emphasized (on p. 62) that "the proposed arrangement cannot violate the rights of the parents to sue for compensation for the violation of their autonomous right to chose to continue or terminate the pregnancy, or their right to sue for compensation also for any other direct damage caused them, or some of them"; emphasis added). On this issue, compare the ruling that determines that if there is an action by dependants and an action by the estate, side by side, compensation should not be made only according to the sum in the claim for a greater amount, as the caselaw determined in the past; it must be examined whether there is a zone of overlap between the two actions, regarding which compensation should be made only once. If there is damage beyond the zone of overlap, then refraining from compensation for each of those damages will

 

lead to under-compensation (see: CA 4641/06 Menorah Chevra le'Bituach Ltd. V. Karkabi (19 December 2007); CA 2739/06 Dubitsky v Razkalla (1 June 2008)).

 

  1. Regarding the amount of compensation: like Justice E. Hayut, I too am of the opinion that compensation for the violation of autonomy should not be standard, but should rather be individual, taking into consideration the concrete violation and its circumstances (see: CA 10085/08 Tnuva Merkaz Shitufi l'Shivuk Totseret Chakla'it b'Yisrael v. the estate of Rabi, par. 40 of the judgment of Justice E. Hayut (yet unpublished, 4 December 2011)). Nonetheless, it has already been clarified that "since we are dealing with assessment of intangible damage, the courts will assess on the basis of the circumstances of the case and their life experience. In general it can be determined that to the extent that the information that was not relayed is more important, and to the extent that the harmed interest is closer to the penumbra of the right and affects it more significantly, so shall the compensation for the violation of autonomy increase (see on this issue the standards proposed by Justice Strasberg- Cohen in the Da'aka ruling for assessing the intangible damage that was caused to a person whose right to autonomy was violated during medical treatment, including: the type of information denied to the patient; the scope, quality and special importance of the information that was not relayed to the patient, as opposed to the information that was relayed to him; the patient's stance about and way of relating to the relaying of the medical information regarding him; and the result of the treatment that was carried out… (id, at pp. 619-621))" (the Kadosh ruling, par. 42 of my judgment).

 

In those cases in which the court is persuaded that a violation of the claimant's autonomy has occurred – one that touches upon the penumbra of the right, and on an important issue – it should grant fitting compensation that reflects the full severity of the violation (id, at par. 48 of my judgment. And see also CA 9187/02 Weinstein v. Bergman (yet unpublished, 16 June 2005); CA 9936/07 Ben David v. Antebi (yet unpublished, 22 February 2011)).

 

Practical Considerations

 

74.Theintheoftheofactionfor"wrongfullife",itwasinnopartinfluencedbytoprovideaproperfortheneedsofabornwithdefects,asaofinhisduringpregnancy.weightgiventothisinparties'anditdidnotmissourIndeed,areoftheopinionthattheofaction "wrongfullife"beintheofthetortofduetoandwithinourandduetothehurdleofprovingtheofortheofthecausallink.weareofopinionatrueforthelargeoftheofthecanbeintheofhiscauseofaction for birth".

 

75.Asabove,areentitledtofortheexpensesneededtotheandassistanceneedsoftheirchild,and tothetheir continues tobeupon duetohiswhenhetheyarealsotoforexpensestheybearinforhimduringperiodandfortheentireperiodoflifeexpectancy. Thisincludeshisregularexpenses,tothethathedoes

 

not cover them due to his disability, and lacking circumstances that negate said entitlement. Inter alia, a sufficient legal solution can also be found for the concern that the parents will pass away without ensuring that they make fitting arrangements for fulfillment of their disabled child's needs, in the framework of sections 56-57 of the Inheritance Law, 5725-1965, which regard maintenance payments from the estate. They determine as follows:

 

  1. If the bestower of inheritance is survived by a partner, children or parents, and they need maintenance, they are entitled to maintenance from the estate pursuant to the provisions of this law, whether in inheritance by law or inheritance by will.

57.(a)      The rightto is –

(1)          …

(2)      For the children of the bestower of inheritance – until the age of 18, for a disabled child – the entire period of his disability, for a child who is mentally ill – as long as he is mentally ill, and for a child with mental retardation – as per the meaning in the Welfare Law (Care for the Retarded), 5729-1969 [emphasis added – E.R.].

 

Thus, a broad solution is provided for the needs of the child due to his disability. Naturally, like in other cases arranged by tort law, the question of the ensuring of proper use of the compensation money might arise. This question is not unique to wrongful birth cases. De facto, there are various situations in which the needs of the child will not be sufficiently fulfilled via the tort action that his parents submit, but this result is unavoidable. Difficulty in ensuring the proper use of compensation that a person receives, even if he is an independent adult, exists due to the very fact that usually compensation is granted in advance and in one amount. In compensation law every injured party is presumed to plan his conduct in such a way that the compensation will offer him a proper and continuous solution for mitigating his damage in the future.

 

The Mazza Commission proposed that the legislature "authorize the court to include in its judgment instructions regarding the use of the compensation money, to the extent that the court sees fit to do so, in order to ensure the fulfillment of the needs of the infant. It is also proposed to determine in statute that the compensation intended to ensure the fulfillment of the needs of the infant shall not be considered part of the parents' property in a situation of bankruptcy; shall not be part of their estate; and shall not be the subject of lien, mortgage or assignment of right in any way" (the Commission Report, at p. 62). These proposals are very wise, not only for this cause of action, but also in a more general scope. I hope that the legislature will indeed heed the call, and that until then, the courts will develop the fitting mechanisms with the tools at their disposal.

 

Conclusion

 

76.Forthereasonsabove,wehavefoundthatcauseforanactionbychildfor"wrongfullife"shouldnolongertheoftheparents'causeofactionfor"wrongfulInthelattercauseofactionisnotbyofthechildwasbornwith,tothecauseofactionasper

 

President Barak's stance in the Zeitsov ruling. Nonetheless, it should be remembered that in practice, the requirement of causal link leads to a certain demarcation of the cause of action, as in the framework of both actions it must be proven that the disability would have led to a termination of pregnancy permitted by law.

 

77.ofthecauseactionfor"wrongfulisnotpossiblebytheruleslaw,anditevenstandsintoofthetheofsanctityoflife,protectiondignityandoftherightsofpeopletodignityandequality.Nonetheless,asolutionbefortheoftheofthechildduetointheofparents'cause ofaction.

 

Our task is not complete: in the framework of this decision of principle, from the outset we did not deal with the question of the specific liability of any of the defendants in the cases before us. These questions shall be decided by other panels, separately in each case.

 

 

President (emeritus) D. Beinisch:

 

I concur with the comprehensive judgment of my colleague the Deputy President E. Rivlin. The issue before us is one of the most difficult and complex ones, from the standpoints of law and values, and the moral and societal standpoints. This Court confronted this issue in the important judgment in CA 518/82 Zeitsov v. Katz, 40(2) IsrSC 85 (1986)(hereinafter: Zeitsov), and my colleague discussed it extensively. In that judgment the Court recognized the existence of a cause of action for a child that was born with a disability that was not diagnosed due to negligence in discovering the defect before conception or birth. It is important to note that the positions of the Justices of the majority in Zeitsov were of course not intended to detract from the status or rights of persons with disabilities; and in their various stances, nor did they detract from the view that recognizes the value of human life, which has always been a sacred value in Israeli law. The judgment in that case is an attempt to find a practical legal solution that might allow granting compensation to children and their parents, who must confront disabilities that at times involve great suffering and considerable monetary expenses. However, the two approaches that were adopted by the majority in Zeitsov raise a number of difficulties, which my colleague the Deputy President discussed in his judgment. The approach of Deputy President M. Ben-Porat in the Zeitsov case raises difficulty regarding the way damage is defined, and the approach of Justice (former title) A. Barak raises difficulty regarding the definition of the causal link between the negligence and the damage. Thus, after more than 25 years since the judgment in the Zetisov case was given, it can be said that its creative attempt to develop the causes of tort action has not yet reached fruition, and conceivably caselaw development of tort law on this issue will be possible in the future. I have been persuaded that at this time, that judgment does not provide a fitting solution for the difficulty involved in recognizing the cause of action of a child claiming that his birth (or his birth with a defect) is the damage that was caused to him. And indeed, the cases before us – with the variety of questions that arise in them – demonstrate more than anything else the difficulty involved in recognizing the cause of action for "wrongful life".

 

According to our societal views and values, every person – be his disabilities as they may – was born in [God's] image, and his life has value in and of itself, which must be honored. According to our moral view, it cannot be said that it would have been better for a person had he not been born. In legal garb, the meaning of this view is that the argument that a person's very life is damage that was caused to him cannot be recognized. The following words from the Mazza Commission Report on this issue are fitting:

 

The view that recognizes the value of the individual as a human being, and the sanctity of life as a value in and of itself, was assimilated into our law as part of an all inclusive moral view. The fundamental principles and values of our system constitute a source of inspiration for the interpretation of concepts that have "open and flexible membranes"; and "damage", as per its definition in  the Civil Wrongs Ordinance, as detailed above, is one of the concepts that should be interpreted according to those principles and values. In other words: the question of recognition or non-recognition of the very birth of a disabled person as "damage" should be decided while taking into account legal policy considerations, according to which the competing values and interests are examined; and determining the balancing point between the private interests and the general public interest shall be influenced by the fundamental views of the legal system and in light of moral considerations. Our stance is that taking into account of those considerations leads to the conclusion that the position that sees "damage" in the very birth of a disabled person should not be recognized (see the report of the Public Commission on the subject of "Wrongful Birth", at p. 46).

 

Note further that I have been persuaded by the position of my colleague the Deputy President that recognition of the cause of action of the parents for "wrongful birth" will allow granting compensation that fulfills a significant part, and possibly most, of the child's needs; it may be appropriate to broaden the solutions by alternative arrangements as recommended by the public commission, but that issue must be examined outside the framework of this judgment.

 

Thus, I concur with the judgment of my colleague the Deputy President, which seems, at the present time, to provide a consistent answer, found with the framework of accepted tort law, to the questions that arose before us, and even presents practical solutions to difficulties that arise in actions of this type. Nonetheless, this judgment too does not constitute the end of the discussion, and it appears that even if additional creativity is called for in developing causes of action regarding lack of early discovery of defects in a fetus, the time is not yet ripe for that. Furthermore, the questions that will arise in the parents' actions for wrongful birth, part of which were hinted at by my colleague in his judgment, will certainly engage the courts again in the future.

 

President A. Grunis:

 

I concur in the judgment of my colleague, Deputy President E. Rivlin.

 

 

Justice M. Naor:

 

1.IconcurinoftheDeputyPresident

E. Rivlin.

 

  1. Regarding the transitional provision and par. 16 of the opinion of my colleague Justice E. Rubinstein: in my opinion we should not decide, in the framework of the transitional provision in the case before us, the question what the fate should be of an action of an infant which has not yet been submitted, regarding which the limitations period has, prima facie, expired. The correct parties regarding that question are not before us.  We shall cross the bridges when we reach them.

 

Justice E. Arbel

 

1.The of DeputyPresidentE.Rivlin isain theissue thetortofbirth,whichittwoseparatecausesofaction,causeofofthe"wrongfulandthecauseofofparents,"wrongfulbirth".dealsquestionsofcentral,ofwhichthefromthelife"ofraisingtheoftheofversusalifeofandaoflifeaofdeath.Hereinitsquestionwhetherweasjudgescanwhethertherearerareastheybe,inwhichitisbettertolivethanitistoliveaofsuffering,orinthewordsofBarak,adefectedlife.Mytheofpublicthatdonotsupport"wrongfullife"causeofaction,andtheinvariousIconcurinopinioninoftheseconsiderations,causeofactionfor"wrongfullife"shouldnotbeBeyondtheintheframeworkofthisofthethatdefiningthelifeoftheevenifitisasalifewhichwouldpreferably–forinfant–neverhaveoccurredissanctity of and dignity.

 

  1. I join my colleague's determination that the need to provide a solution to the medical, rehabilitation and assistance needs of the child can be found in the framework of his parents' action for "wrongful birth", which does not raise the difficulties of law and principle involved in recognizing the child's cause of action. The parents are the parties that are directly injured by the fact that their child was born due to negligence. His birth necessarily bears injury to the parents. I agree with my colleague's conclusion that in this case the parents have the right to choose not to bring into the world a child with disability, via legal abortion permissible by law. This determination can be made without entering into the moral questions involved in the parents' choice to refrain from raising a child with disability.

 

3.Iwas notsurehow todecidethe issueof proof ofthecausallinkina "wrongfulaction.Intoprovetheacausalinsuchacauseofitbethatwouldhavetopregnancyhadthefactsthedefectthefetusbeenknown.Thisissuenoitfurtherthatitnotforthewouldhavechosentothepregnancy.Theasithasalreadyariseninthepast,iswhetherofsuchproofshouldnotbewaived.colleaguealsoagreesthe standingonthewitnessstandandtestifyingthattheywouldhavechosentothepregnancy,iftheyhadtheraisesThereisinprovingandawherewitha whenthey already theresult.AlthoughthisisnotuniquetobirthIamofthethatthethatsuchtheirCan a truly looking whetherhe would have abortedthe isnowlivingandchildheisraising?Canapersonwhathewouldhavedonehadhefoundout,whenthechildwasstillafetus,aboutthefetus’sinactionsfor"wrongfultheisintensified,asdiscussedfortwoadditionalreasons.First,themoralbywhothattheywouldhavechosentoabortchildthatisnowlivingandloved,isathatharmeventhechildifheistotheatpointoranotherinlife.intheofpublicpolicyduetotheconcernthataofsuchproofwouldburdencertainofwhichthereisathattheydonottohaveduetothethatwouldharmparentsareto a child.

 

  1. I examined whether it would not be correct to adopt the approach according to which proof of causal link should be waived (CC (Jerusalem District Court) 3198/01

A. v. the Jerusalem Municipality (unpublished, 12 May 2008), Judge Drori; CC (Tel Aviv District Court) 1226/99 A.L. v. Yaniv (unpublished, 29 March 2005), Judge Benyamini). Indeed, this approach constitutes a certain deviation from the regular path of tort law. Nonetheless, in my opinion this approach is likely to be legitimate and fitting for the subject matter at hand, due to considerations of public policy and in light of the uniqueness and complexity of this cause of action. Thus, for example, the complexity of the "wrongful birth" cause of action served the Deputy President in determining that the defendants should be charged to pay the disabled child’s additional expenses only, and not all the expenses of raising him. In addition, I find it doubtful that such a requirement would advance the discovery of the truth, and whether it can advance justice in a specific case, due to the noted difficulty in proving what the parent would have done had he known of the defect his fetus suffers from, whereas it is doubtful if he himself knows clearly how he would have acted. However, I ultimately decided to concur in the opinion of my colleague, both due to the desire to walk along the path of tort law, and due to my colleague's softening of the requirement in two ways: first, in determining that by proving the position of the pregnancy-termination committee to allow an abortion in the certain case, a refutable presumption arises regarding the parents' stance about having an abortion; and second,  in  determining  that  refuting  this  presumption  shall  not  be  done  merely

 

through general information such as sectorial or religious affiliation. I add that in my opinion, courts hearing "wrongful birth" cases must act on this issue in a  very cautious and sensitive fashion, giving weight to the individual, who is not necessarily obligated by the general positions of the sector to which he belongs; the courts must also act with a certain flexibility, to the extent possible, in implementing this requirement in the framework of a proof of the causal link. We are dealing with negligence law, which should be adapted to the ever changing and difficult reality of life.

 

As aforementioned, I concur in the judgment of the Deputy President.

 

Justice S. Joubran:

 

I concur in the circumspective and enlightening judgment of my colleague, Deputy President E. Rivlin.

 

 

Justice E. Rubinstein

 

  1. The issue before us touches upon philosophical questions regarding human existence, possibly similar to the house of Shamai and the house of Hillel, who disputed "for two and a half years" the question whether "it is better for a person not to have been created than to have been created" (Babylonian Talmud, Eruvin 13b); questions which are philosophically difficult, legally difficult, and difficult from a human standpoint. In the annals of the sages a decision was reached: "counted and decided: it is easier for a person not to have been created than to have been created; now that he has been created, he must examine his deeds.  And there are those who

say: he must reckon his deeds" (id; and see Rashi, id; Mesilat Yesharim (Rabbi Moshe Chaim Luzzato (Italy-Holland-Eretz Yisrael, the 18th century) chapter 3); the thrust of this is that having been created, he must search for good and expunge evil, with constant self examination. The subject underdiscussion is more limited than the existential question posed above, which relates to the life of any person, and it relates to a person who entered the world with severe defects; it is fundamentally a situation in which the parents declare that had they known ex ante what the condition of their infant would be they would have refrained from continuing the pregnancy,  and society confirms (via the provisions of section 316 of the Penal Code, 5737-1977) that this is a legitimate choice. Nonetheless, questions from the world of values, philosophy, morals and religion arise, integrated with questions the results of which are financial – such that the legal decision makes (or might make) a moral choice as well; thus the agony in making it.

 

  1. In this context, it is my opinion that a different description of human existence actually characterizes this judgment. The verse "and G-d made man" (Genesis 2:7) is interpreted in the Talmud as follows: "woe is me because of my creator, woe is me because of my evil inclination" (Babylonian Talmud, Brachot 61a): approving the "wrongful life" cause of action raises complex theoretical legal difficulties, which my colleague the Deputy President (following what is accepted in other countries) wishes to avoid, and thus his decision. This is also the approach of the majority of the "Public Commission on the Subject of Wrongful Birth" (hereinafter the Mazza Commission) in  the  important  and  enlightening  report  it  wrote  (the  minority  opinion  is  also

 

important), which in my opinion has a special role in our decision. On the other hand, annulment of the cause of action, as proposed by my colleague, even if that comes alongside an expanded cause of action for "wrongful birth", is not simple, primarily on the practical level. Expansion of the cause of action for wrongful birth in order to provide a solution for the practical difficulties, or some of them, as can be seen in the opinion of my colleague the Deputy President, is also liable to raise various legal difficulties, some of which I shall touch upon below.

 

3.Regardingforon the legal plane,inthetheinthecauseoftoadditional(theexpensesthethethattheraisingofachild),althoughregularalsobeabletobecausallylinkedtotheact(see56-57),mycolleaguetheDeputynotesthat"theresultsofthebirthofthechildmustalsobe(par.weagainfindtheofexistence,wewishedtoavoiddoing.Furthermore,inordertoreacharesultwhichis,intheofthecase,just (toextentcolleagueiswillingtoparentsoftheinfantfortheirexpenses the entire period of [the infant's] life expectancy"(par.60,–eventhoughfromthepracticallawstandpoint,itthattoitistheactiontofortheirsupportoftheinfant,itcouldhavebeentotheoftheirlifetotheintheMazza Commissionthatcanbebasedupontheparentspennytheirinordertoensureofthe needs ofthe infant their p. 64).

 

4.Thatisalsothecaseregardingidentificationlivingexpenses(the"regularexpenses")oftheinfantwhenhehasanadult,asaverage salary in the economy (inthecaseoflossofearningability)–agenerallyexpectedapersonwhowasbyaact, not ofthe expenses aparty bears in tosupport(althoughinMazza Commission wasalsoofthisopinion,p.61).Incontext,itisdoubtfulineyesiftheforsupportpursuantto4oftheLawLaw(Support),(towhichDeputyinpar.ortosectionofInheritanceLaw,5725-1965(towhichheinpar.75)issalaryinthe(forsupportratesCA4480/93A. v. B.,48(3)IsrSC461;PY(AL),5725-1965(part2,37-38).IIamnot,heaven forbid,sayingthatantheintheseissuesshouldbetaken.oppositeisthecase–theofwhichattheof theofmytheDeputyPresident(aswellastheopinionintheMazza CommissionareIacceptthemaswell;however,thearisingfromadaptationoftheparents'causeofactionfor"wrongfultorealityincauseofaction"wrongfullife"should not be ignored.

 

5.On the practical plane, myinter aliaquestionitcanbeensuredthattheparents' tothebirthcause

 

of action will indeed ensure the future of the infant (see par. 75). These questions are difficult to solve, as what will be done, for example, when the parents are irresponsible, or big spenders, and leave the infant with nothing by spending all the money. I shall say at the outset, that in my opinion there is a sufficient legal basis for determining arrangements that will safeguard this interest; in addition, because if the parents' entitlement stems from various duties that the law casts upon them (see, e.g., par. 60 of the opinion of the Deputy President) it is not unreasonable to connect the compensation and these duties (in this context as well the majority opinion in the Mazza Commission proposed unique arrangements, see p. 62). An additional significant difficulty, at least on the level of principle, relates to an infant who has no parents to sue on his behalf (an issue which the  majority opinion in the Mazza Commission discussed on p. 60), or when the parents themselves go bankrupt, etc.

 

6.InotherthetheoftheDeputydespitetheittoensurefutureoftheinfanthisparents'action,–despitetheofcourse–leadtointhewhotodaywouldbeentitledtowillbewithnothing;yetistheandthefromitareexpenses(evenifwefromusingtheofLetusthatJusticesoftheinZeitsov (CA518/82Zeitsov v. Katz,40(2)IsrSC85)wereawareofthevariousinthepresented,yettheytoawhich,ifitensuresthecausedas a result of the negligent care by the doctor,aspertheofthisintortwillbeforseepar.42oftheminorityintheMazza CommissionbyMr.Posner.

 

  1. In this context, the position of (then) Justice Barak in Zeitsov proposes a compensation mechanism which is clear and relatively simple to implement, which avoids entering into complex ethical dilemmas (see also A. AZAR & A. NURENBERG, RASHLANUT REFU'IT (MEDICAL MALPRACTICE)(2nd  ed., 5760) 287);  however, as noted above, it entails legal difficulties (see Deputy President Ben-Porat in Zeitsov, at

p. 105; see also R. Perry "L'hiyot o lo L'hiyot: ha'Im Zo haShe'elah? Tviot Nezikin begin 'Chayim b'Avla' keTa'ut Konseptualit"(To Live or Not to Live – Is that the Question – Tort Actions by Reason of Wrongful Life as a Conceptual Mistake) 33 MISHPATIM (5763) 507, 559-560; A. Shapira, "haZchut lo leHivaled bePgam" (The Right to be Born with a Defect) in DILEMMOT B'ETIKA REFU'IT (DILEMMAS IN MEDICAL ETHICS) (R. Cohen-Almagor ed., 5762) 235, 248). I will not deny that I was taken by the thought of proposing that we continue down that paved path, as per Justice Barak, with certain amendments and despite its theoretical difficulties, until the subject is fully arranged [in legislation]. As long as the subject has not received a full arrangement, we replace a construct with theoretical difficulties but practical validity, with a construct which does not have such theoretical difficulties, but raises practical questions, as mentioned above. The Justices that heard Zeitsov a bit more than a quarter of a century ago knew that they face a difficult mission; but they wished to practically assist those whose fate was bitter, where negligence had occurred, even if the very creation of a fetus with defects was not at the hands of the doctor but by "the dealer of life to all living creatures" (in the words of the hymn for Rosh haShana and Yom Kippur).

 

8.thecreatedtheinZeitsov,thelackofinofthecourts,inter alia regardingthebetweentheopinionsofDeputyPresidentBen-PoratandBarakinZeitsov –requiresandanditisnotfornoreasonthatwedealing,inwithalargeofcasesthatAsearlyas this noted:

 

"a district court judge hearing an action like this stands before a number of possibilities… in each of the cases he will not deviate from the provisions of sec. 20(b) of Basic Law: Adjudication, which determines that 'a ruling of the Supreme Court obligates every court, except the Supreme Court'" (CA 913/91 Azoulai v. The State of Israel (unpublished) par. 3 – Justice Maltz; see also CA 119/05 Amin v. The State of Israel (unpublished))."

 

A generation has passed since the Zeitsov ruling was handed down, and as the members of the Mazza Commission noted: "the lack of decision, as aforementioned, has left the legal arena wide open" (p. 17); this situation, in which the fate of an action depends upon the decision of the judge – it may not be superfluous to note, the random judge – before whom the case is heard "according to his opinions and worldview" (in the words of the commission on p. 17), is hard to accept. Complaints against it were also heard from attorneys who deal in the field during the hearing before us (on 31 January 2012); and I will not refrain from mentioning here that the opinions supporting confirmation of the stance of Judge Barak in Zeitsov were usually heard – before us and in the Mazza Commission – from lawyers who generally represent claimants. Indeed, the majority opinion in the Mazza Commission proposed "as a first and preferred possibility" (p. 60) to create, in legislation, a social arrangement that would ensure fulfillment of the needs of those born with defects that cause them functional disability, and of course there would be much blessing in such an arrangement; it further proposed, as an alternative, a legislative torts arrangement, and there is much positive about that as well. However, as a court that hears tort cases according to the existing law, I fear that there is no evading determination of a caselaw rule in tort law, despite the existing difficulties that accompany each of the alternatives, until legislation of one kind or another is passed. And I call upon a sensitive and conscientious Israeli legislature to reach it as soon as possible.

 

  1. Ultimately, I saw fit to concur, in principle, in the well reasoned decision of my colleague the Deputy President, consisting, at this time, of the part regarding legal principles. I do so whilst pointing out the difficulties and calling upon the legislature to speak. It is an open-eyed decision, aware of the disadvantages and advantages of each of the alternatives, wishing – trying hard – to ensure that basing one's opinion on "the regular legal tort logic" (the purpose of which is also avoiding the type of difficulties in theory and in result found in the various opinions of Zeitsov) does not lead to a practical result which is not just. I go this way also because the stance of my colleague is in line with the opinion of the majority of the members of the Mazza Commission regarding annulment of the "wrongful life" cause of action, and with the caselaw of the courts of the Common Law states (as the commission surveyed in its report, and as my colleague surveyed in his opinion). The moral message that arises from my colleague's decision – both regarding the sanctity of life and regarding treatment of persons with disability – also supports adopting it. It is also in line (as presented briefly below) with what can possibly be defined as the position of Jewish

 

Law, our legal heritage. The position that arises from our decision is that we do not leave people with disability in the category of "it would be easier for him had he not been created"; we must honor their needs and attempt to fulfill them, without a label of societal rejection in the form of "it would be easier for him had he not been created", but rather while treating them as desirable human beings.

 

"Better than both is the one who has not yet been" (Ecclesiastes 4:3)

 

  1. Recognizing the cause of action for "wrongful life" requires, as aforementioned, discussion of weighty moral questions, the answers to which might be able to be found "in the area of philosophy – morality – theology" (in an analogy to the words of Justice Goldberg in Zeitsov, p. 128). Indeed, in the literature of Jewish law we also find positions – based on a religious worldview – according to which for a very defected infant, whose life expectancy is most short, "it is better for him that he was born than had he not been born at all, as those who are born enter the next world" (see the IGROT MOSHE responsa (Rabbi Moshe Feinstein, Russia-USA, 20th century) Even HaEzer first part chapter 62); there is, however, among important religious authorities also broad and significant attention given (in the context of discussion of termination of pregnancy) to the life of suffering to which such an infant, and to a great extent those who closely surround him, are condemned:

 

"Is there need, sorrow, and pain, greater than that under discussion, which will be caused to the mother to whom such a creation is born, one who is all suffering and pain, and whose death is certain within a number of years, and the eyes of the parents see but their hands cannot relieve him? (and it is clear that if this child is taken to a special institution and the parents will not be given access until his death it makes no difference and does not detract from the aforementioned). Added to this are the tortuous and painful contortions of the child with the defect. Thus, if termination of the pregnancy is to be allowed according to Jewish Law due to great need and due to pain and suffering, it seems that this is the most classic case  that  should  be  allowed"  (TSITS  ELIEZER  responsa  (Rabbi  Eliezer

Waldenberg, Israel, 20th century) part 13 chapter 102).

 

The reality of human existence also brings forth cases in which life is not short, but rather continues, without hope, for decades, with all the suffering involved, at times especially to the parents, as the child does not communicate. Indeed, many pens broke in Jewish law attempting to clarify these questions with a forward looking glance (particularly regarding abortions; see, for example, Rabbi E. Lichtenstein "Hapalot Malachutiot – Heibetei Halacha" (Artificial Abortion – Halakhic Aspects), 21 TCHUMIN (5761) 93). The majority opinion in the Mazza Commission included discussion of a number of known sources relating to the question whether life is worth living, for example the words of King Solomon "and I thought the dead, who have already died, more fortunate than the living, who are still alive" (Ecclesiastes 4:2), and the words of Jonah the prophet, who wished to die and said "it is better for me to die than to live" (Jonah 4:8), although, according to their opinion, "there is no doubt that these statements relate to moral and theological aspects only" (p. 65), and I already discussed above the differentiation between the philosophical question and the situations which are before us for decision. The question when "death shall be preferred to life" (Jeremiah 8:3), or when to "long for death but it does not come, and

 

dig for it more than for hidden treasures" (Job 3:21), is a question which has not been decided; however, life is "heritage from the Almighty on high" (id, 31:2; see M. Greenberg "Erech haChayim baMikra" (The Value of Life in the Bible) in KEDUSHAT HACHAYIM VACHERUF HANEFESH: KOVETS MA'AMARIM LEZICHRO SHEL SEGEN AMIR YEKUTIEL (THE SANCTITY OF LIFE AND MARTRYDOM – COLLECTION OF ARTICLES DEDICATED TO MEMORY OF LT. ARNON YEKUTIEL) (Y. Gafni & E. Ravitsky eds, 5753)

35). For example, there are those ill with debilitating disease whose life is not really a life, and who expect to be put out of their misery, and there are those who turn the depths of suffering into a lever for creative activity (see the enlightening and touching writings of Dr. Rachamim Melamed-Cohen, a person with ALS who creates like an ever swelling spring).

 

  1. The stories of the Bible and additional stories appearing in later sources teach that life is not always preferable to nonexistence: thus, for example, the words of King Saul to his porter "draw your sword and thrust me through with it, so that these uncircumcised may not come and thrust me through, and abuse me" (1 Samuel 31:4); or the story of the woman who "grew very old" and said to one of the sages of the Mishna: "I have grown too old and from now on my life is that of disgrace, I do not taste food or drink and I wish to leave the world" (YALKUT SHIMONI Dvarim chap. 11 Remez 871). Note that these acts served halachic authorities in discussion of modern questions regarding lengthening and shortening life (see, respectively, Rabbi Y. Zilberstein "Matan Morphium le'Choleh Sofani haSovel miChenek"(Giving Morphium to a Terminal Payment Suffering from Asphyxia) ASIA 15 (5757) 52; Rabbi Y. Zilberstein, in TZOHAR: KOVETS TORANI MERKAZI C (5758) 218). Then, as now, in Jewish law as in Western law, the considerations are well known, and the dilemmas are difficult.

 

12.itisstillappropriatetocomparingfilledwithtoaandlife,andasitbe,withaofnonexistence.Thatisthewhenwithathatisforof"theextentofthe"bottomline"ofistoamonetaryIn-depthoftheofdiscussing thosequestionscaninmyopinionbefoundinthewordsofthe 10a) King Hezekiah,whofromprocreatingbecauseforesawhiswouldbeevil(theevilMenashe).Inthetells"whatbusinessofyoursarehiddenoftheandofchoiceinsuchitwassaidthat"asoulisnothisproperty,propertyoftheLord,asitiswritten(Ezekiellivesare(theofthe(RabbiDavidbenthe16ofS18,6).ifJewishlawistothatincasesitispreferabletoavoidthatiswithhightoleadtoofdefectedthewordsofprophetaclearthepossibilityofdiscussingasituationoftoaofexistence,asasit

is, and their conclusion that law cannot be decided on the issue. I add that those words – regarding the hidden ways of the creator of the world – are used in religious philosophy in a completely different context as well, regarding ungraspable historical phenomena like the holocaust.

 

13.Thelegal of"wrongfulbirth"or"wrongfullife"has–ontheasopposedtothemoral-religious–inlaw(see,e.g.,S.Yelenik"Holadab'Avla–ZchuyotTviahBirth–RightsofActionS23(5761);Vidal,"Holada–PitsuiyeiNezikinHoladatUbarBirth

  • Compensation in Torts for Birth of Fetus with Defects), TCHUMIN 32 (5772) 222), and the problem of an action on the basis of the cause of action for "wrongful life" was raised: "according to the halacha there should be no action by the minor" – as opposed to his parents' action – "who was born due to a tort, neither against his parents nor against a doctor who gave his mother consultation or diagnosis when she was pregnant" (VIDAL, p. 231). However, the halachic sources referred to in these works may support the conclusion of Dr. Michael Wigoda:

 

"The truth should be said, that the classic sources of Jewish law do not deal with this issue" (thus, in his memorandum submitted to the Mazza Commission with the title "Reflections upon 'Wrongful Birth' in light of the Sources of Jewish law").

 

It can also be understood why: the formulation of tort actions like those before us is the fruit of the modern medical and legal age, in which what was previously in the realm of heavenly secrets and fate, can now be predicted and decoded by tools of medicine and genetics. That does not exempt modern [Jewish law] authorities from dealing with it.

 

Epilogue and Practical Comments

 

14.Thethatcolleaguetheexpansivelygoesalongwaytowardreasoned,andjustoftheandlegalbeforeus.However,incertainregards,thewhichthecourtscontinuetopavetothecasesthatbebroughtusisstilllong(andmyalsothat).TheintheMazza Commission withadditionalprovisionswhichshouldbeintortAttheofthem liesthewhichlies atofopinion:thatapartofthefortheparentsislinkedtotheburdensomeexpensesofensuringcareforhim,anditsistoallowthemtopaytheminawaythatwillcondition,tothepossible(anditbeabletobesaid,toallowthemtotheirduties theinfant).relationswithinthediscussedneedtothattheisusedfortheoftherelationstheandothers,thediscussedneedtothemoneyagainstthirdsuchcreditorsinbankruptcy(p.62).situationinwhichtheinfantdoesnothavewhowillsueinhisadditionalwhich of theMazza Commission discussed.

 

15.Thesemorethanquestionoftheannullingofthelifeofwhichiscentralinthis(partial)Indeed,atstagewearenottheconcretequestionsofofandthuswearealsonotitforthepurposeforwhichitisgiven. Thecourtscanfindthe

 

answer to these questions – at least to part of them – in the Mazza Commission report, and that circumspective legal document should be before the eyes of those hearing such cases. In may be, that the solution to them will resemble relocating the theoretical difficulties from the discussion of the cause of action to a discussion on translating the expanded cause of action into practice. However, the question of the cause of action is the one which is before us, and it is presumed that its translation into practice will find an appropriate solution in the future. The majority opinion in the Mazza Commission noted:

 

"The question is whether such an arrangement can be reached, to the extent that it is found appropriate, by judicial ruling as well, is a matter of the decision of the Supreme Court."

 

Although I am, as aforementioned, of the opinion that there should be a legislative arrangement of the entire issue, and I hope that the call to the legislature will fall on attentive ears, whether in a social scheme (which, in its entirety, would not be before us) or, at least, a legislative arrangement of a complete and detailed tort scheme; the courts have a duty to ensure that the annulment of the wrongful life cause of action prior to enactment of a circumspective scheme in legislation will not derogate from their primary duty – to do justice within the framework of the law. The path that has been determined passes through the parents; the courts have a duty to ensure, in every single case, that the benefit reaches the infant and is earmarked for the infant, and not for other purposes.

 

Transitional Provisions

 

16.Regardingtransitionalprovisionsbycolleagues,I amafraidthataistoininwhichnoactionwasbytheparents,underthethatinthefutureafterclarificationofthecondition)anactionwouldbebyinfant,theoftheZeitsov rulingtoofitanother,andrelying uponit.toaperiodofyearsforthat.provisionthesafeguardspendingcasesinactionswerenotbybutitdoesnotsafeguardhaveyetiftheyearparents expired(asopposedtothetwentyfiveyears),aclaimthatactionisbarredduetoberaised.ThatmayhaveanadditionalconsiderationinfavorofleaningtowardleavingZeitsov standingHowever,Iat least theofthisshallapply,tocasesinwhichanactionwastheforonefromthedateoftheUnfortunatelymyareinthusIonlyhopethatthefindawaytothehasbeenof(to they inthe of justice.

 

Final Comments

 

17.ThisjudgmentisgivenondayoftheoftheDeputyRivlin.Heisretiring36years–twicetheofHebrewwordChai [life]–onbenchofinstances,

 

starting with traffic court, and reaching where he has. His contribution covers all areas of the law, and there is no valley in which he did not stake a claim. The judgment he chose for his retirement day is characteristic of the central field of his judicial legacy, the field of torts, and within it medical negligence. For many future years the mark which Justice Rivlin has made on all branches of tort law, from traffic accident law, regarding which he also wrote a fundamental book, to the complex and sensitive issue decided today, will accompany Israeli adjudication. According to the sages, the existence of fair tort law – relations between man and his fellow (Babylonian Talmud Baba Kama 30a) – is among the foundations of just human society. In his judicial work, Justice Rivlin contributed to that. I wish him, now that he has reached retirement age, that "in old age they still produce fruit; they are always green and full of sap" (Psalms 92:14).

 

 

Decided according to the opinion of the Deputy President E. Rivlin.

 

The result of the judgment – to the extent that it regards the annulment of the cause of action of the infant – shall not apply to pending cases (including cases before us) in which an action was not submitted by the parents. Justice E. Rubinstein was of the opinion that the result of the judgment should not be applied for one year from today, and Justice M. Naor notes that the question of the law regarding a claim on the part of an infant which has not yet been submitted should not be decided in the framework of a transitional provision in the case before us.

 

Given today, 7 Sivan 5772 (28 May 2012).

Full opinion: 

Carmel Haifa Hospital v. Malul (summary)

Case/docket number: 
FH 4693/05
Date Decided: 
Sunday, August 29, 2010
Decision Type: 
Appellate
Abstract: 

Facts: The first respondent was born with multiple defects. She was delivered through a Caesarean section performed on her mother, the second respondent.  The trial court found that the appellant hospital had negligently delayed the surgery, but there was no certainty as to whether the respondent’s defects were caused by her premature birth (for which the appellants were not at fault) or by the delay in her mother’s medical treatment (a result of the first appellant’s negligence). The lower court awarded the respondents compensation in the amount of 40% of the full damages amount and an appeal was brought to the Supreme Court. The original three judge panel that heard the appeal held that the hospital was to be held proportionally liable for its negligence, even though the respondent had not proven, by the normal preponderance of the evidence standard, that the negligence had actually caused the damage. A rehearing of the appeal, before an expanded panel of the Court, followed.

 

Holding: Majority view, opinion by Vice President Rivlin. Vice President Rivlin ruled that proportional liability was desirable as an exception to the preponderance of the evidence standard only in circumstances in which that standard loses its advantage as an evidentiary norm. Primarily, those circumstances occur when a joint, repeated risk has been created; when this risk has been created vis-à-vis multiple potential plaintiffs and when the application of the preponderance of the evidence standard, combined with “all or nothing” damages standard, leads to a recurring distortion regarding the assignment (or non-assignment) of liability to the defendant.  In such cases only, the use of the preponderance of the evidence standard achieves neither corrective justice nor optimal deterrence. However, the assignment of proportional liability in other situations, based on a desire to do justice in the individual case, leads to an unacceptably high level of uncertainty.  President Beinisch approved of the recurring distortion standard as the only permissible narrow exception to the normal evidentiary requirement, agreeing with Justice Grunis that a general use of the proportional liability rule would lead to a slippery slope of expanding tort liability, for which, the President emphasized, the public would be required to pay. Justice Procaccia emphasized that the preponderance of the evidence standard should not be changed absent a legislative enactment. Justice Levy concurred with the Vice President’s opinion in full.

 

Minority view, opinion by Justice Naor: Justice Naor wrote that the decision in the original appeal should be allowed to stand. The requirements set out in the Vice President’s majority opinion refer to a different type of ambiguity than was present in this case, dealing as they did with ambiguity regarding the identity of the injured party. In the instant case, the ambiguity related to the actual causation of damage itself, and in such cases the recurring distortion and multiple potential plaintiff components are irrelevant. The “all or nothing” approach for awarding damages should be abandoned in favor of the proportional liability exception,  in cases such as this, meaning cases that involve inherent ambiguity regarding the actual causation of damages, and in which the defendant’s negligence towards the plaintiff — even a single plaintiff — has been established using the preponderance of the evidence standard, and in which it has been determined that negligence of the type committed by the defendant is a potential cause of the damages suffered by the plaintiff in the particular case.  In such cases, the innocent injured party must be favored over the party whose negligence has been proven, and compensation should be awarded based on the probability that the defendant had in fact caused the damage; such causation can be proven using evidence of general probability or of scientific estimations of the actual causation. However, for the time being, as the law develops, the exception should be applied only in cases involving bodily injury, which are the most typical cases for inherent ambiguous causation. Justice Joubran agreed with Justice Naor’s views, except for emphasizing that the proportional liability exception is to be applied specifically to cases of scientific ambiguity, and that it should be recognized as an evidentiary exception, not a change in the substantive law. Justice Rubinstein noted that recurring cases are the best examples of the need for proportional liability, and that the professional expertise of the judges who will use the proportional liability exception is adequate protection against “slippery slope” and judicial uncertainty concerns. In his view, proportional liability is required for reasons of justice. He also presented the positions taken by Jewish law in this regard, in cases of doubt as to the actual fault of the various parties. Justice Arbel noted that the proportional liability exception as outlined by Justice Naor provided the optimal balance in terms of deterrence against negligent behavior, and that the decisions issued by courts since the decision in the original appeal showed that judges can apply the exception without breaching the boundaries of judicial certainty.

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

FH 4693/05 (summary)

 

1. Carmel Haifa Hospital                               

2. Clalit Health Fund

 

v.

 

1. Eden Malul

2. Tzipora Malul

3. Armond Malul

 

 

The Supreme Court

[29 August 2010]

 

Before President Beinisch, Vice President E. Rivlin, and Justices A. Procaccia, E.E. Levy, A. Grunis, M. Naor, E. Arbel, E. Rubinstein, and S. Joubran

 

Petition for a Further Hearing on the Judgment of the Supreme Court dated 31 March 2005 in CA 7375/02, issued by the Honorable Justices Mazza, Naor and Joubran.

 

Facts: The first respondent was born with multiple defects. She was delivered through a Caesarean section performed on her mother, the second respondent.  The trial court found that the appellant hospital had negligently delayed the surgery, but there was no certainty as to whether the respondent’s defects were caused by her premature birth (for which the appellants were not at fault) or by the delay in her mother’s medical treatment (a result of the first appellant’s negligence). The lower court awarded the respondents compensation in the amount of 40% of the full damages amount and an appeal was brought to the Supreme Court. The original three judge panel that heard the appeal held that the hospital was to be held proportionally liable for its negligence, even though the respondent had not proven, by the normal preponderance of the evidence standard, that the negligence had actually caused the damage. A rehearing of the appeal, before an expanded panel of the Court, followed.

Holding: Majority view, opinion by Vice President Rivlin. Vice President Rivlin ruled that proportional liability was desirable as an exception to the preponderance of the evidence standard only in circumstances in which that standard loses its advantage as an evidentiary norm. Primarily, those circumstances occur when a joint, repeated risk has been created; when this risk has been created vis-à-vis multiple potential plaintiffs and when the application of the preponderance of the evidence standard, combined with “all or nothing” damages standard, leads to a recurring distortion regarding the assignment (or non-assignment) of liability to the defendant.  In such cases only, the use of the preponderance of the evidence standard achieves neither corrective justice nor optimal deterrence. However, the assignment of proportional liability in other situations, based on a desire to do justice in the individual case, leads to an unacceptably high level of uncertainty.  President Beinisch approved of the recurring distortion standard as the only permissible narrow exception to the normal evidentiary requirement, agreeing with Justice Grunis that a general use of the proportional liability rule would lead to a slippery slope of expanding tort liability, for which, the President emphasized, the public would be required to pay. Justice Procaccia emphasized that the preponderance of the evidence standard should not be changed absent a legislative enactment. Justice Levy concurred with the Vice President’s opinion in full.

Minority view, opinion by Justice Naor: Justice Naor wrote that the decision in the original appeal should be allowed to stand. The requirements set out in the Vice President’s majority opinion refer to a different type of ambiguity than was present in this case, dealing as they did with ambiguity regarding the identity of the injured party. In the instant case, the ambiguity related to the actual causation of damage itself, and in such cases the recurring distortion and multiple potential plaintiff components are irrelevant. The “all or nothing” approach for awarding damages should be abandoned in favor of the proportional liability exception,  in cases such as this, meaning cases that involve inherent ambiguity regarding the actual causation of damages, and in which the defendant’s negligence towards the plaintiff — even a single plaintiff — has been established using the preponderance of the evidence standard, and in which it has been determined that negligence of the type committed by the defendant is a potential cause of the damages suffered by the plaintiff in the particular case.  In such cases, the innocent injured party must be favored over the party whose negligence has been proven, and compensation should be awarded based on the probability that the defendant had in fact caused the damage; such causation can be proven using evidence of general probability or of scientific estimations of the actual causation. However, for the time being, as the law develops, the exception should be applied only in cases involving bodily injury, which are the most typical cases for inherent ambiguous causation. Justice Joubran agreed with Justice Naor’s views, except for emphasizing that the proportional liability exception is to be applied specifically to cases of scientific ambiguity, and that it should be recognized as an evidentiary exception, not a change in the substantive law. Justice Rubinstein noted that recurring cases are the best examples of the need for proportional liability, and that the professional expertise of the judges who will use the proportional liability exception is adequate protection against “slippery slope” and judicial uncertainty concerns. In his view, proportional liability is required for reasons of justice. He also presented the positions taken by Jewish law in this regard, in cases of doubt as to the actual fault of the various parties. Justice Arbel noted that the proportional liability exception as outlined by Justice Naor provided the optimal balance in terms of deterrence against negligent behavior, and that the decisions issued by courts since the decision in the original appeal showed that judges can apply the exception without breaching the boundaries of judicial certainty.

Legislation cited

Courts Law (Consolidated Version), 5744-1984, s. 79A.

Foundations of Law Statute, 5740-1980.

Compensation for Victims of Road Accidents Law, 5735-1975, s. 4(c).

Israeli Supreme Court Cases Cited

[1] CA 2781/93 Daaka v. Carmel Hospital IsrSC 53(4) 526 (1999).

[2] CA 8279/02 Golan v. Estate of Albert (2006) (unreported).

[3] FH 15/88 Melech v. Kornhauser [1990] IsrSC 44(2) 39.

[4] CA 600/86 Amir v. Confino [1992] IsrSC 46(3) 233.

[5] CA 5604/94 Hemed v. State of Israel [2004] IsrSC 58(2) 498.

 

American cases cited

[6] In re Agent Orange" Prod. Liab. Litig 597 F. Supp. 740 (E.D.N.Y. 1984).

[7] Summers v. Tice 199 P.2d 1 (Cal., 1948).

[8] Sindell v. Abbott Laboratories 607 P.2d 924 (Cal., 1980).

 

English cases cited

[9] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22.

[10] Barker v Corus Plc Ltd [2006] UKHL 20.

[11] McGhee v National Coal Board [1973] 1 WLR 1.

Estonian case cited

[12] Case No. 3-2-1-78-06, 3 October 2006.

French case cited

[13] Appeal No. 06-109767, 22 May 2008.    

For the petitioners — Ran Shapira, Avimor Yaakov.

For the respondents — Joseph Leon.

 

JUDGMENT

(Summary)

Deputy President E. Rivlin

The respondent, Eden Malul, was born prematurely by way of a Cesarean section in the petitioner’s hospital. The trial court found that the hospital was negligent in not conducting the Cesarean section as fast as was medically necessary, and the respondent was born with certain mental deficiencies. However, it was not clear whether these deficiencies were the result of the premature birth — which is a no-fault factor — or the result of the hospital’s negligent delay in conducting the Cesarean section.

The trial court decided that the hospital’s negligence may have caused the respondent’s injury, and awarded the respondent damages covering 40% of her damage. The petitioners (the hospital and the HMO) appealed this decision to the Supreme Court. The Supreme Court decided that in cases of ambiguity regarding factual causation it is sometimes justified to assign “proportional liability”, if the probability that factual causation exists is substantial and yet does not exceed 50%. In this case, the Supreme Court determined that assigning proportional liability was justified, but reduced the damages to 20% of the damage.

The issue of assigning proportional liability in cases of ambiguity regarding factual causation, as an exception to the preponderance of the evidence standard, was brought for further hearing before a wide panel of the Supreme Court judges.

Normally, the plaintiff must prove all the elements of her claim according to the preponderance of the evidence standard in order to receive compensation. If she does not manage to do so, she will receive no compensation. This is often called the “all or nothing” rule. This rule must not be replaced altogether by a rule of “proportional liability”. First, the “all or nothing” rule reflects the basic conception that factually, only one reality exists — the defendant has either caused the injury or not. Second, this rule, along with the preponderance of the evidence standard, minimizes judicial errors and divides the risk of such errors equally between the plaintiff and the defendant (see: David Kaye, “The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation,” 7 Am. B. Found. Res. J. 487 (1982)). Thus, this rule is socially efficient. The “all or nothing” rule also reflects principles of fairness and corrective justice, as it leads to full compensation whenever it is more likely than not that the defendant has negligently caused the plaintiff’s injury. 

Despite these advantages, courts in Israel have recognized certain exceptions to the preponderance of the evidence standard, and to the “all or nothing” rule which follows it. One such exception is the recognition of “lost chances of recovering (in the medical sense)” as an actionable loss. When applying the loss-of-chances doctrine, compensation is not awarded for the physical injury, as it is not known whether that injury is causally linked to the negligent conduct. Therefore, the physical injury merely assists in calculating the damages for the alternate head of damage — lost chances. Damages for lost chances are calculated as a percentage of the monetary value of the physical injury. As can be seen, the loss-of-chances doctrine shifts the difficulty in proving causation, so that partial damages may be awarded de facto, without deviating from the preponderance of the evidence standard. It may be noted that in some cases, courts in Israel have applied the loss-of-chances doctrine when the lost chances were above 50%, even though in these cases the preponderance of the evidence standard allowed for full damages. Also, the mirror-image of lost chances — “increased risk” — was not recognized as an actionable loss, although it could be argued that the distinction between the two is not very well founded. Recognizing “increased risk” as a head of damage, however, could lead to a significant deviation from the preponderance of the evidence standard.

Another exception to the preponderance of the evidence standard was suggested by courts in Israel in the context of informed consent to a medical procedure. It was decided that the question of how the plaintiff would have acted if her consent had been properly obtained is largely hypothetical; therefore, the causal link between the lack of consent and the physical injury is usually ambiguous. In the case of CA 2781/93 Daaka v. Carmel Hospital [1], it was suggested that the court should estimate the probability that the plaintiff would have rejected the procedure, had her consent been properly obtained. If the probability is significant, albeit lower than 50%, the court may award partial damages. This suggestion had not been adopted as a rule, as the majority opinion recognized “infringement of autonomy” as an actionable tort, rendering the proof of causation regarding the physical harm unnecessary.

In this petition, it is suggested that a more general rule be set as to the conditions under which exceptions to the preponderance of the evidence standard should be made. In forming such a rule it must be remembered that generally, the preponderance of the evidence standard is the optimal way of dealing with uncertainty in the civil law. Its advantages are achieved when it is applied consistently and therefore it must not be abandoned merely because it does not alleviate the ambiguity in a specific case. However, under certain specific conditions, applying the preponderance of the evidence standard will nullify its usual advantages. These conditions are the creation of a joint, repeated risk towards a group of potential plaintiffs by a potential defendant; and the existence of an inherent, recurring distortion in the application of the preponderance of the evidence standard. A joint, repeated risk may be created by a single tortious act, such as environmental contamination; it may also be created by a series of tortious acts conducted by the defendant, each one exposing some members of the group to the risk. Such is the case when the defendant sets a negligent medical care policy. A recurring, inherent distortion in the application of the preponderance of the evidence standard would lead, under the current legal regime, to a fixed legal result in any litigation between any of the plaintiffs and the defendant. The legal result would always be biased in one direction: if the probability of factual causation is lower than 50%, no plaintiff will succeed in proving her case, although it is clear that in some cases the defendant did indeed cause the injury. If the probability is higher than 50%, all plaintiffs will succeed in proving their case, although the defendant did not actually cause the injury in all of the cases.

Therefore, under the aforementioned conditions, the application of the preponderance of the evidence standard would lead to undesirable results. Corrective justice is not achieved when the defendant is not held liable for damage she has truly caused by her negligence, or if the defendant is held liable for damage she has not caused. The status quo is not restored. Also, in order for efficient deterrence to take place, the defendant must be held liable for no more and no less than the damage she negligently caused. Applying the preponderance of the evidence standard in such cases as described above could make the defendant immune to liability — if the probability is inherently lower than 50%, in which case there would be no deterrence at all. On the other hand, if the probability is inherently higher than 50%, the preponderance of the evidence standard would lead to over-deterrence. In contrast, under the proportional liability rule, the expected liability of the defendant equals the actual losses caused by the tortious conduct. Finally, applying the preponderance of the evidence standard when there is a recurring distortion in its application, and it affects a group of plaintiffs, does not minimize the cost of judicial errors, and has a negative distributive effect. If a recurring distortion exists, the same party will always bear the cost of a judicial error. Normally, the risk of a judicial error is distributed equally between both parties.

Indeed, proportional liability in cases of a recurring distortion and a group of potential plaintiffs does not entirely restore the status quo, as some plaintiffs will be compensated for damage that was not caused by the defendant, and others, whose damage was caused wholly by the defendant, will be under-compensated. However, the defendant’s total liability will equal the true value of the injuries she caused — an outcome which could not have been achieved under the preponderance of the evidence standard. Also, under the preponderance of the evidence standard, the plaintiffs who are under-compensated would not have received any compensation at all (if the probability is lower than 50%). The requirement of a group of plaintiffs ensures that a defendant will not be held liable if she had not caused any damage at all, as may happen if proportional liability is assigned with regard to a single litigant. Although this result is achieved by shifting the perspective from the specific plaintiff to a group of plaintiffs, and thereby it somewhat differs from the concept of corrective justice in its most strict sense, it is the closest possible result to restoring the status quo. Corrective justice is achieved in the aggregative sense.

Of course, the proportional liability rule must apply both when the probability is higher than 50% and when it is lower, in order for the advantages of this rule to be achieved. Therefore, it is to be expected that both plaintiffs and defendants will attempt to prove the conditions set for the application of the proportional liability rule (of course not in the same case). Any party who wishes to apply a proportional liability rule must prove the existence of 4 conditions: the existence of a tortfeasor, of a group of plaintiffs, a joint and repeated risk, and a recurring distortion in the application of the preponderance of the evidence standard (hereinafter: “a recurring distortion”). The group of plaintiffs must be actual and not theoretical or hypothetical, although the plaintiff does not necessarily have to identify the individual members of the group. The party attempting to prove these conditions will naturally have to also supply the court with evidence regarding the probability that there is a causal link between the tortious act and the injury. This evidence may be scientific or statistical evidence. As the court’s perspective shifts from a single-plaintiff to a group of plaintiffs, many of the difficulties associated with relying on statistical evidence become irrelevant, and the court may rely on such evidence, as long as it is credible and relevant to the case.

In summary, the preponderance of the evidence standard remains the general rule for most cases. The “recurring distortion” doctrine serves as a well defined exception to that rule. It should not be understood too widely, but neither should it be understood too narrowly. When the conditions for the “recurring distortion” doctrine’s application are met it can serve as a suitable framework for different types of cases characterized by ambiguous causation, including environmental toxins and tobacco cases.

How should the “recurring distortion” doctrine affect different exceptions to the preponderance of the evidence standard, which have been suggested by courts in Israel as well as in other legal systems? As mentioned previously, courts in Israel have discussed two such exceptions: the loss-of-chances doctrine (possibly including liability for increased risk) and cases of lack of informed consent in the medical context. Of these, only the loss-of-chances doctrine has been accepted as a rule. Considering the difficulties and disadvantages associated with this doctrine, as well as the need for an all-encompassing framework for proportional liability, it is suggested that the “recurring distortion” doctrine replace the recognition of loss-of-chances as an actionable loss.

Other exceptions to the preponderance of the evidence standard, which have been suggested in other legal systems, are the cases of “market share liability” and “mass” or “Toxic Torts”. These can be understood as examples of the type of cases in which the “recurring distortion” doctrine applies. Market Share Liability can be understood as part of the “recurring distortion” doctrine, if it is seen in the following manner: each of the manufacturers has created a joint risk to a group of plaintiffs. The probability that each plaintiff’s damage is due to a specific manufacturer’s tortious conduct is equal to that manufacturer’s market share, so there is a recurring, inherent distortion in applying the preponderance of the evidence standard in such cases. Although in the case of Market Share Liability there are typically several defendants, this is not a necessary condition for applying the “recurring distortion” doctrine. What is required in this regard is a group of plaintiffs — and indeed such a group exists for each defendant.  

The term “Mass Torts” applies to a situation in which a large number of people are exposed to a certain risk, but in each individual case it is unclear whether the damage is linked to the tortious exposure to risk. Such was the case in the Agent Orange cases (In re “Agent Orange” Prod. Liab. Litig. [6]). In these cases many American soldiers were exposed to toxins which increase the risk of different illnesses. When seen as a population, it was evident that many of those soldiers were indeed ill. However, it could not be proven, in each individual case, that it was “more likely than not” that the illness was due to the tortious exposure to toxins, and not caused by other factors. These attributes are basically those required by the “recurring distortion” doctrine. It is important to note that although Mass Torts usually meet the requirements of the “recurring distortion” doctrine, the latter are usually wider than the former. The “recurring distortion” doctrine does not include any requirement that the group of plaintiffs will be unusually large, and it would apply also to such cases as a negligent medical policy.

One of the most significant advantages of the “recurring distortion” doctrine is that it serves as a general, well defined framework for all types of ambiguous causation, rather than offering specific and narrower solutions to each type of ambiguous causation separately. It is a solution that is not based on the characteristics of any specific case, but rather on wide theoretical considerations. Finally, it should be noted that the “recurring distortion” doctrine applies to cases in which the defendant is the common figure to all the individual cases. Some — though not all — of the justifications for this doctrine also apply to cases in which the plaintiff is the common figure, such as when a plaintiff is exposed to several tortious acts and it is unknown which one caused her injury. The question of whether the doctrine of “recurring distortion” should also apply in some of these cases remains undecided.

Justice E.E. Levy

Justice Levy agreed with Deputy President Rivlin’s clear and comprehensive opinion and with the result at which he arrived.

 

 

Justice M. Naor

Justice Naor wrote that Israeli tort law allows for a probability-based award of damages in the event of an inherent difficulty in proving a factual causal connection between the proven negligence and the proven damages. This is an exception to the traditional rule allowing for compensation to be awarded on the basis of a preponderance of the evidence. Justice Naor outlined a test to determine when proportional liability may be assigned — which she defined as the “proportional liability exception”. According to her, Deputy President Rivlin’s proposed outline for the exception is not the only possibility.

Justice Naor proposed that the test should require that all the following conditions be met:

a.     Negligence: the plaintiff must prove by a preponderance of the evidence that the defendant was negligent;

b.    Damage: the plaintiff must prove by a preponderance of the evidence that the plaintiff has suffered damages;

c.     Inherently ambiguous causation: the plaintiff must prove by a preponderance of the evidence that there is inherent ambiguity regarding the factual causal connection, which makes it impossible to prove the causational process that actually occurred, as is normally required when the “but for” test is applied;

d.    The negligence was a potential tortious risk factor: the plaintiff has proved by a preponderance of the evidence that the negligence is a risk factor for the particular damage caused to the plaintiff and that the defendant should have foreseen such damage (hereinafter: “the tortious risk factor”);

e.     A significant tortious risk factor: the plaintiff must prove that there is a substantial chance — although less than 50% — that the tortious risk factor actually caused the damage;

f.     Failure to award compensation for the damages would be an unjust result.

According to Justice Naor, when these conditions are met, the court may be satisfied with a finding of a probability-based factual causal connection, which can be established on the basis of statistical evidence or on the basis of an estimation. In these cases, all possible factors —those that involve fault and those that do not — can be accorded their proper weight under the circumstances, for the purpose of establishing the appropriate scope of compensation.

Justice Naor emphasized that she does not seek to create a new uniform theoretical framework for deciding the issue. The issue has been discussed at length in the legal literature in Israel and throughout the world, and it is doubtful whether a comprehensive solution can be found (para. 9). There is no need for concern regarding measures that move in new directions. But such movement needs to be connected, at its core, to the concrete facts in the case under discussion. The general norm that is proposed is therefore directed at resolving the specific case — the particular case of a single plaintiff who has suffered damages, and not a multiple potential plaintiff (hereinafter: “multiple-plaintiff”) case.

Justice Naor’s opinion in the rehearing of the case covered several matters: the presentation of the ambiguous causation problem; the justifications for resolving the ambiguous causation problem through the proportional liability exception in the particular case; the response to the criticism directed at her approach; and finally, a description of the criteria for awarding compensation under the proportional liability exception. These are the main points.

The preponderance of the evidence rule. The starting point is that it must be proven that the defendant was negligent and that the plaintiff suffered damage. The purpose of the causation rules in tort law is to establish whether, from a legal perspective, there is a sufficient connection between the defendant’s negligence and the damage suffered by the plaintiff. Causation is the dividing line between, on the one hand, an individual’s freedom to act as he wishes, to take chances and even to be negligent — and on the other hand, the responsibility that an individual must bear for his acts and for the damages caused by his behavior. The problem of ambiguous causation refers to uncertainty regarding the factual causal connection, which makes it impossible to determine whether or not such a connection exists. The uncertainty is an inherent aspect of the bodily injury that arises in these cases, because of the limitations of the available medical knowledge regarding the factors that cause the injury, and because medical illnesses and defects can be the result of many factors.

Definition of the proportional liability exception: Justice Naor wrote that the proportional liability exception should apply only to the law of torts, only when bodily injury has been proven, and only when the matter involves ambiguity with respect to the actual causation of the injury. The exception and its limitations are derived directly from tort law policy considerations that require a relaxation of the preponderance of the evidence rule as applied to the law of torts, and from the adjustment of that rule for the purpose of conforming it to the objectives of the law of torts. This relaxation will, in turn, lead to a “proportional” compensation outcome rather than an “all or nothing” decision. This is therefore a substantive exception to the law of torts, and not an evidentiary exception applicable to all legal fields. The starting point for this “relaxation” is, as stated, the problem of ambiguous causation. 

Focusing the exception among the different categories of ambiguous causation: We can point to four typical categories of ambiguous causation cases. The first group of cases involves ambiguity regarding the scope of the damage. The second group consists of cases in which there is ambiguity regarding the identity of the party who caused the damage. The third group consists of those cases in which there is ambiguity regarding the actual causation of the damage. The fourth group involves ambiguity regarding the identity of the party that has been injured. This division into categories is not absolute and there may be sub-categories as well, but the proposed division can refine the analysis and simplify the discussion of the complex problem of ambiguous causation. The test that is proposed in Justice Naor’s opinion involves the third group (ambiguity regarding the actual causation of the damage). This group includes those cases in which the ambiguity pertains to the factual causal connection between the wrongful behavior and the plaintiff’s injury — when it is inherently impossible for the plaintiff to prove, using the ordinary preponderance of the evidence standard, that the negligent defendant has caused any damage to him whatsoever.

In light of the importance of the ambiguous causation problem, Justice Naor also discussed the other three categories briefly — categories which are described and analyzed in depth in articles by Israeli legal scholars (I. Gilead, “Comments on the Tort Arrangements in the Legal Codex — Liability and Remedies,” 36 Hebrew Univ. L. Rev. (Mishpatim) 761 (2006), at p. 775; A. Porat and A. Stein, “Liability for Uncertainty: Making Evidential Damage Actionable,” 6 Cardozo L.R. 1891 (1997)).

Ambiguity regarding the extent of the damage: Ambiguity regarding the extent of damage arises when it is known that some part of the damage was undoubtedly caused by the behavior of a particular defendant, who is unquestionably at fault, but what is unknown is the percentage of the damage that was caused by the defendant, relative to the percentage caused by other factors, whether or not such factors are at fault. Regarding this category, the norm under Israeli tort law is to award proportional compensation according to probability, including through the use of an estimation (CA 8279/02 Golan v. Estate of Albert [2], per President Barak, at para. 5). The primary reason for this is that there is no justification for ignoring the interest of an innocent injured party and giving absolute preference to the interest of the culpable tortfeasor, who is, with certainty, responsible for a part of the damages that have been caused to the injured party. The starting point for tort law has always been to prefer the innocent injured party over the party whose tortious behavior has undoubtedly caused harm.

Justice Naor referred to English law as providing support for the proportional liability exception for this category of cases (Fairchild v. Glenhaven Funeral Services Ltd [9]; Barker v. Corus UK Plc. [10]). The Fairchild case appears to belong to the category of cases involving uncertainty regarding the scope of the damage; in that case, it was certain that a portion of the injured party’s damage had been caused by at least one of the defendants.

Justice Naor tends to understand the Israeli jurisprudential recognition of a head of damage for loss of chance of recovery as relating to ambiguity regarding the scope of the injury that has been caused. This is because the norm is to view a loss of chance of recovery as an independent head of damage, the causation of which can and must be proved by a preponderance of the evidence. Justice Naor has a similar understanding of the Israeli jurisprudential recognition of a violation of autonomy arising from the lack of informed consent to medical treatment as an independent category of damage. The reason for this is that in such cases, there is no uncertainty regarding the fact that damage has been caused, as it has been proven by a preponderance of the evidence that the defendant tortiously caused independent damage in the form of an impairment of the plaintiff’s interest: the defendant caused an injury to a person’s “well-being”, and this injury falls within the definition of the term “damage” in s. 2 of the Civil Wrongs Ordinance.

Ambiguous causation regarding the identity of the wrongdoer: Ambiguous causation with respect to the identity of the party causing the damage relates to a situation in which a single injured party faces a series of behaviors all of which are at-fault (i.e., two or more negligent parties) but it is not possible to know which of these caused the damage. Here, unlike the category of ambiguous causation regarding the extent of the damage, there is uncertainty as to whether a particular defendant, as opposed to any other member of the group of negligent actors, is the actual tortfeasor. The difficulty is in identifying the “correct defendant”. Israeli tort law has no single standard approach regarding this category. In certain circumstances, the case law has adopted the solution of transferring the burden of proof to the defendants, in order to allow the injured party to be awarded full compensation. Thus, for example, if it has been proven by a preponderance of the evidence that each one of the culpable defendants has caused some damage to the plaintiff, even if the plaintiff’s damage is by its nature a single inseparable injury, the defendants are viewed as joint tortfeasors who are all jointly and severally liable for all the damage (FH 15/88 Melech v. Kornhauser [3], at pp. 109-112, 115). However, Melech v. Kornhauser [3] is not one of the “hard cases” of ambiguous causation regarding the identity of the party causing the damage; it involved, as stated, a certainty that each of the defendants had indeed caused some damage. In a “hard case” in which it has not been proven by a preponderance of the evidence that a particular party has caused any damage whatsoever to the plaintiff, the Israeli case law has upheld the concept of personal responsibility, even in cases in which all the defendants are at fault (see the majority opinion in CA 600/86 Amir v. Confino [4]).

In light of this, Justice Naor reviewed the issue from a comparative law perspective. In the United States, it has been held that when there are two possible defendants/wrongdoers, the burden of proof is transferred to the defendants so that effectively, they are each held to be jointly and severally liable for the full amount of the damage (for example, in Summers v. Tice [7], two hunters had fired their guns and it was not possible to establish which of them had hit the injured party). In this typical case there was no certainty that any part whatsoever of the damage was caused by a particular defendant. The transfer of the burden of proof to the defendants as a resolution of this issue was adopted in s. 28 of the Third Restatement of the Law of Torts. This solution is implemented, as stated, when the ambiguity relates to the identity of the wrongdoer and arises in connection with bodily injury only. In other circumstances, such as when there are more than two possible negligent defendants, the practice has been to charge the defendants with proportional liability according to the market share doctrine (see the DES case, involving medications marketed by hundreds of manufacturers of a generic oil, which had been marketed to pregnant women for the purpose of preventing miscarriages and which many years later caused serious illnesses in the daughters of these women: Sindell v. Abbott Laboratories [8]). In that case as well, there was no certainty that any particular portion of the plaintiff’s damage had been caused by a particular wrongdoer. The case therefore appears to belong to the category of cases in which there is ambiguous causation regarding the identity of the wrongdoer. Nevertheless, the DES case can also be classified as falling within the category of cases involving ambiguous causation regarding the identity of the injured party; the identity of the wrongdoer-defendants was known because the damage was caused by all the wrongdoers, such that their identity was known, but the division of the liability among them was not. In these circumstances, in which the danger presented by each of the defendants was identical, the division of liability according to market share was a solution that was both attractive and capable of being implemented. Alternatively, the DES cases could be categorized as a combination of two categories — ambiguous causation regarding the identity of the wrongdoer and that of the injured party (see: J. Spier and O.A. Haazen, “Comparative Conclusions on Causation” in Unification of Tort Law: Causation 127 (J. Spier, ed., 2000), at p. 151) — or as belonging to each one of those two categories separately (T.K. Graziano, Digest of European Tort Law, Volume 1: Essential Cases on Natural Causation (2007), at pp. 452-457).

On the other hand, the Principles of European Tort Law (PETL) use a different solution for this category of cases — that of probability-based proportional liability. The objective of these principles is to establish a common tort law foundation for application in the European Community states, with the ultimate aim of harmonization in this area. The PETL, which are based on in-depth and comprehensive multi-country research, have served as a source of inspiration for the case law of the various national courts (see B.A. Koch, “Principles of European Tort Law,” 20 KLJ 203, at pp. 203-205; Article 3:103(1) of the PETL).

The common basis for these different approaches to the issue of ambiguous causation regarding the identity of the wrongdoer is the understanding that the injured party cannot be left without compensation: the multiplicity of “tort suspects” is a consideration in assigning liability and not in limiting it. “There is blatant injustice in the fact that an entire group of tortfeasors, each of whose behavior is at fault and one of whom has caused the damage [will be freed] of the obligation to compensate the injured party, only because the nature of the wrongful activity is such that the plaintiff is prevented from knowing who, out of the entire group, had caused the damage” (B. Shnor, “Factual Causal Connection in Claims for Bodily Injury Caused by Environmental Pollution,” 23 Bar Ilan Univ. L. Rev. (Mehkarei Mishpat) 559 (2007), at p. 618).

Ambiguous causation regarding the identity of the injured party: Ambiguity regarding the identity of the injured party arises when there is a group of injured parties, on the one hand, and a series of behaviors, some of which involve fault and some of which do not, and it is not possible to determine which of the injured parties was affected by the at-fault behaviors and which were injured by the other causes. Here as well — unlike the issue of ambiguous causation regarding the scope of the damage — there is no certainty that any portion whatsoever of a particular injured party’s damages were caused by a particular defendant. The uncertainty concerns the matter of whether a particular plaintiff, as distinguished from any other member of the group of plaintiffs, was injured by the negligent party. The difficulty involves the identification of the “correct plaintiff”.

In this category too, the PETL apply the concept of probability-based proportional compensation, as described in Article 3:103(2) with respect to multiple victims. This category was discussed in the United States in the Agent Orange case (In re “Agent Orange” Prod. Liab. Litig. [6]). In that case, the court offered the plaintiffs a settlement arrangement that provided for pro rata compensation. There was certainty regarding the identity of the factor causing the damage — Agent Orange. The uncertainty arose in relation to the identity of the individual injured parties (ibid. [6], at p. 833). It was apparently possible to prove that a certain number of the plaintiffs, out of the entire class, had been injured due to the exposure to the dangerous substance. However, it was not possible to determine which particular members of the plaintiff class were those who had been injured. The court noted that the identification of the injured parties on an individual basis was impossible (ibid. [6], at p. 837). The Agent Orange case therefore appears to represent an example of ambiguous causation regarding the identity of the injured party. The court held that because, as stated, no individual solutions could be reached according to the normal preponderance of the evidence rule, it was necessary to use a collective “class action” solution (ibid. [6], at pp. 837-838).  

Discussion of Deputy President Rivlin’s recurring distortion test: Deputy President Rivlin proposes a “collective” solution, similar to that proposed in the Agent Orange case, based on a delineation test that he defines as the “recurring distortion test”. This test is relevant to the “set of cases characterized by the creation of repeated and shared risks to a group of injured parties” (para. 21 of his decision). The recurring distortion test is conditioned on the existence of a group of injured parties (para. 22 of his decision). In this situation, the difficulty is “the inability to distinguish among the injured parties [in a manner that] may lead to some of them being compensated for damage that was not the result of the commission of a tort” (para. 24). The test that he proposes is “[to] distribute the compensation among all the members of the group of injured parties — when it is not possible to determine in relation to which of them the risk created by the wrongdoer reached the level of actual damage” (para. 26 of his decision).

According to Justice Naor, the delineation test proposed by the Deputy President applies to the category of ambiguous causation regarding the identity of the injured party; it is not intended to deal with the category of cases discussed in the decision which was the subject of the original appeal (hereinafter: Malul) — i.e., cases of ambiguity regarding the actual causation of damage. The examples cited by the Deputy President suppose the existence of an at-fault wrongdoer who is indisputably responsible for at least part of the damage suffered by the group of injured parties, with the only question being the identity of those members of the group who actually suffered the damage. This is ambiguous causation regarding the identity of the injured party. It appears that the “recurring distortion test” is intended, in the main, to resolve the issue of ambiguous causation which is characteristic of “mass tort” lawsuits. The Deputy President thus allows the main remedy requested by the petitioners, which is to qualify the proportional compensation exception such that it would “apply primarily to cases of torts that involve the exposure of a large population to mass risk factors, such as the suits involving DES, Agent Orange, Benedictine [a medication prescribed for morning sickness], cigarettes, etc.”

Justice Naor remarked that she is inclined to adopt Deputy President Rivlin’s position as a useful solution for cases of ambiguous causation relating to the identity of the injured party, but ultimately left the issue for further review. According to her, the Deputy President’s approach abandons the actual facts discussed in Malul and establishes a rule for the determination of liability in group tort cases — a category that is not an issue at all in Malul. In Justice Naor’s view, the desired legal approach should be formulated on the basis of the facts of the case at hand. She added that in her view, the recurring distortion test is too narrow, in that it rules out the possibility of awarding probability-based compensation in single-plaintiff cases, and thus, in principle, rules out compensation in cases such as the one presently before this Court. The main outcome of the Vice President’s approach appears to be that in principle he believes that the respondents should not be awarded damages; however, due to practical considerations, he proposes that the judgment reached in the original appeal should be left intact. Justice Naor’s approach is that there are principled standards for probability-based compensation in a single-plaintiff case, and the award of partial damages to the respondents here was correct. According to Justice Naor, the operative result of the Malul decision cannot, in the absence of agreement, be allowed to stand, if probability-based compensation is possible only according to the recurring distortion test. Justice Naor also believes that the recurring distortion test is in a certain sense too broad: when it is invoked, according to the Vice-President, the traditional preponderance of the evidence rule will not apply at all — neither in favor of the injured parties nor in favor of the wrongdoers. On the other hand, the exception that Justice Naor has proposed is more limited and benefits only a single injured party, and does not operate in favor of the wrongdoer (as will be explained below). In any event, as stated, the policy considerations set out by Vice President Rivlin deal with a different category of cases, and they therefore do not apply in the same way to the category discussed in Malul. Justice Naor therefore believes that the Vice President’s opinion does not negate the probability-based compensation approach in the case of ambiguity regarding the actual causation of damage. Such compensation has its own separate and independent justification.

Ambiguity regarding the actual causation of damage — the Malul case: The division of cases into different categories refines the discussion and focuses the delineation test proposed by Justice Naor here on the situation which constitutes the very core of ambiguous causation, i.e., uncertainty regarding the actual causation of damage. Ambiguity regarding the actual causation of damage arises when the injured party cannot prove by a preponderance of the evidence that any at-fault behavior of the defendant’s caused any damage whatsoever. As opposed to ambiguous causation regarding the extent of the damage or the identity of the wrongdoer, it is not possible in these cases to prove that any at-fault behavior whatsoever caused any damage whatsoever. Unlike cases of ambiguous causation regarding the identity of the injured party (in which it is certain that the defendant, through his negligence, has tortiously caused damage to a group of individuals and the plaintiff suffered the same type of damage), there is in this case an inherent uncertainty regarding the question of whether the defendant caused any damage at all through his negligence, to any individuals whatsoever. Ambiguity regarding the actual causation of damage can arise when, as in Malul, there is an at-fault risk factor as well as a risk factor that does not involve fault (a “natural” factor), and it is not known whether the tortious risk factor caused any damage whatsoever. Justice Naor believes that the following weighty reasons will justify, in certain cases, a deviation from the preponderance of the evidence standard in situations in which there is ambiguity regarding the actual causation of damage:

The justifications for probability-based compensation when there is ambiguity regarding the actual causation of damage:

a.     First justification: corrective justice: The main consideration in favor of “relaxing” the normal preponderance of the evidence rule is justice itself. When there is ambiguous causation, the injured party may be unable to prove the elements establishing a tort of negligence according to the normal rules of evidence applied in civil law, even though leaving the injured party without any compensation is contrary to the objectives of the law of torts and is unjustified. A review of the decisions that have been rendered in the trial courts in reliance on this Court’s opinion in Malul, which is the subject of this further hearing, indicates that the rule has been widely assimilated and invoked. The desire to reach a just result under the circumstances of a concrete case is the heart of the judicial process. Justice is the ideal towards which we must strive. According to Justice Naor, the principle of corrective justice is the key policy consideration involved in the law of torts.

Definition of corrective justice: If the principle of corrective justice is identified with the idea of personal liability of the wrongdoer, the imposition of liability on the negligent party in a situation of ambiguity regarding the actual causation of damage is one that undermines the principle of corrective justice. Nevertheless, a different definition of the principle of corrective justice may be adopted — one which is adjusted for situations of ambiguous causation and which conforms as closely as possible to the principle of corrective justice. This definition involves a “relaxation” of the concept of personal liability, in a way that makes it possible under certain circumstances to order the negligent party to pay partial damages. The principle of corrective justice is a conceptual framework which can be filled with normative content that varies according to the society’s standards.

Justice Naor believes that the courts can adopt a definition of corrective justice that focuses on a certain level of correction of the injured party’s situation, even at the expense of the negligent party. This definition of corrective justice is not neutral vis-à-vis the negligent party; in fact, it puts that party in an inferior position. Once negligence has been proven, there is no longer a situation of equality between the negligent defendant and the injured plaintiff. The reason for favoring — to a certain degree — the injured party is the flawed behavior with which the negligent party has been tainted. Even if there is some uncertainty regarding the actual causation of the damage, it is still a certainty that the defendant was negligent vis-à-vis the plaintiff and that his behavior has been improper. The determination that the defendant was “negligent” means that the defendant has failed to maintain the level of care required by society from a reasonable person under the circumstances of the case. The defendant is tainted by a sort of “social guilt”. This guilt has been proven according to the ordinary preponderance of the evidence test and using the standard evidentiary proofs. Under these circumstances, the guilt with which the negligent party’s behavior is marked also has ramifications for the issue of the factual causal connection and overrides the “mantle of individual ambiguity”. (An Austrian scholar, F. Bydlinski, has proposed an approach which is similar in theory — an approach that creates a relationship of reciprocal balance between the element of responsibility and the element of causal connection: see H. Koziol, “Causation under Austrian Law” in Unification of Tort Law: Causation 11 (J. Spier ed., 2000) at p. 14; H. Koziol “Problems of Alternative Causation in Tort Law” in Developments in Austrian and Israeli Private Law 177 (H. Hausmaninger, H. Koziol, A.M. Rabello, I. Gilead eds., 1999), at pp.178-180; B.A. Koch, Digest of European Tort Law, at pp. 396-398).

This definition of corrective justice, used when there is ambiguity regarding the actual causation of damage, prefers the innocent plaintiff over the negligent defendant with respect to the final remedy. The reason for this is that when the wrongdoer has been proven negligent, it would be unjust to allow the entire burden of the damages to be borne by the entirely innocent injured party. This preference with regard to the final remedy, in connection with ambiguity regarding the actual causation of damage, means that a party who is negligent will bear a certain part of the cost. This cost is translated into partial compensation for the injured party. The individual injured party’s demand that the damage or a part thereof be compensated only by a negligent party (or parties), when there is ambiguity regarding the actual causation of damage, is not without a moral basis. The negligent party (or parties) and the individual injured party are part of a single relationship. The event creating the damage occurred as part of the relationship between the specific injured party and the specific negligent party (or parties). In the context of this relationship, according to Justice Naor, the injured party’s right to redress for his injury corresponds to the negligent party’s obligation to redress the injury that was caused, even if only partially, based on a consideration of the probability of there being a factual causal connection. According to the said definition of the principle of corrective justice, it is preferable to assign partial liability and to impose a duty to provide partial compensation on the negligent party, including in a single-plaintiff case, and not to apply an “all or nothing” rule, the consequence of which is that no liability will be assigned at all and the injured party will receive no compensation. The justification is therefore based on the choice of the lesser evil. This solution is preferable to a situation in which an injured party is left without any compensation. There is, it is true, a chance that the defendant is not the party that caused the damage to the plaintiff; this possibility is reflected in the fact that the duty to compensate imposed on the defendant is partial and not full. This definition of the principle of corrective justice does not limit the concept of probability-based compensation to cases in which torts have been committed against a group of plaintiffs.

Justice Naor does not believe that it is practical to apply a “multiple-plaintiff” limitation in situations in which there is ambiguity regarding the actual causation of damage, as Vice President Rivlin proposes. How can the plaintiff be required to prove anything regarding a “group of injured parties” when the plaintiff has no information concerning the group’s existence or its characteristics? Is there an appropriate litigation process for this purpose under the existing law? And if not, should a special litigation process be created, and how would that be done? And even if these procedural issues can be overcome, the multiple-plaintiff claim is not accorded any preference within the framework of the corrective justice concept: corrective justice can be obtained with regard to the entire system on the basis of an accumulation of judicial decisions involving single-plaintiff cases. The objective of achieving corrective justice does not require the abandonment of the individual solution and a transition to either a multiple-plaintiff or class action. According to Justice Naor, the objectives of tort law can also be realized through probability-based compensation in the individual/single- plaintiff case. In her view, the choice of the “multiple-plaintiff only” solution means foregoing the possibility of achieving a just solution in single-plaintiff cases, and she therefore believes that it is inappropriate.

b.    Second justification: deterrence. Optimal deterrence considerations are based on the view that tortious liability should be assigned in a manner that will contribute to a maximum reduction of the total damages from accidents and of the expenses involved in preventing them. According to Justice Naor, the principle of deterrence and considerations of economic efficiency cannot constitute the only objective: “The reasonable man is not only the efficient man. He is also the just, fair and moral man” (CA 5604/94 Hemed v. State of Israel [5], at p. 511c).

In the past, the standard position was that with regard to factual causal connection, the “all or nothing” approach would give rise to optimal deterrence. This approach proved to be flawed, and the belief was expressed that under certain circumstances, proportional compensation could bring about optimal deterrence as well (see J. Makdisi, “Proportional Liability: A Comprehensive Rule to Apportion Tort Damages Based on Probability,” 67 N.C.L. Rev. 1063 (1988), at pp. 1067-1069 (1988); S. Shavell, “Uncertainty over Causation and the Determination of Civil Liability” 28 J.L. & Econ. 587 (1985), at pp. 589, 594-596;  D. Rosenberg, “The Causal Connection in Mass Exposure Cases: A ‘Public Law’ Vision of the Tort System,” 97 Harv. L. Rev. 849 (1984), at pp. 862-866 (1984)). Vice President Rivlin limits these circumstances to those of the recurring distortion test, which is primarily intended to avoid insufficient deterrence resulting from application of the standard preponderance of the evidence rule in a multiple-plaintiff case. According to Justice Naor, deterrence considerations do not require this limitation, for the following reasons.

First, it seems that Vice President Rivlin is of the opinion that the application of the “all or nothing” rule in a single-plaintiff case does not cause any significant harm. The scholars Porat and Stein have made similar remarks, to the effect that injustice and inefficiency in the single-plaintiff case are matters “far removed from the judge’s desk” (see A. Porat and A. Stein, “Indeterminate Causation and Apportionment of Damages: An Essay on Holtby, Allen, and Fairchild,” 23 Oxf. J. Leg. Stud. 667 (2003), at p. 671). This position conflicts with Justice Naor’s view of a judge’s function. Every case that reaches a judge is of the greatest importance for the litigant, and the judge’s decision regarding that case does not depend, and should not depend, on the existence or non-existence of other cases that are similar to it. The complaint is personal and not representative; the cause of action is personal and not shared by a group; the injustice or inefficiency are personal and are not shared by other plaintiffs. Policy considerations must not ignore the single-plaintiff case as “negligible”. The “multiple-plaintiff” criterion is based, inter alia, on the condition that the case involves an incident that is likely to recur. Justice Naor believes that this is an artificial criterion. It reflects a procedural rather than a substantive consideration. Thus, for example, it is argued that a complaint may be moved from the single-plaintiff category to the multiple-plaintiff category through the change of the name of the defendant from that of a single doctor to that of the hospital in which the doctor is employed, or through the use of the doctrine of agent liability (Porat & Stein, “Indeterminate Causation,” ibid., at p. 682, n. 41). Of course, this change is a procedural one, while the substantive cause of action of the injured party — the existence of negligence vis-à-vis the plaintiff — remains in place.

Second, it should be recalled that the factual causal connection is examined after negligence has been proven, taking into account, inter alia, the deterrence issue. The deterrence consideration as it is weighed at the stage of determining negligence interacts with the deterrence consideration as it is weighed at the stage of determining the causal connection. In the final analysis, these considerations are the same. If the defendant is freed of any liability due to ambiguous causation, the deterrence consideration that was a guiding factor in the determination of the (proven) negligence loses its value. In such a case, the determination that the “defendant did not take sufficient precautions and was therefore negligent” does not translate, in terms of relief, into an award of any damages whatsoever arising from the breach of the duty of care, and the negligent party effectively avoids any obligation to provide compensation. This result undermines the same deterrence principle that provided guidance at the stage of determining negligence. This important point emerges from the British decision, McGhee v. National Coal Board [11]. That was a clear case of “scientific” ambiguous causation resulting from the limitations of medical science (see Lord Rodger’s comments in Fairchild [9], at para. 153). The House of Lords there ordered an employer to compensate an employee, finding that it was sufficient that a failure to provide showers had increased the duration of the employee’s exposure to asbestos, which is recognized as a possible risk factor for disease. Lord Simon held that an acquittal of the negligent party in that case of ambiguous causation, after the party’s negligence had been proven with respect to the failure to take the necessary precautionary measures, would amount to a grant of judicial permission to employers to fail to take such precautionary measures (McGhee [11], at pp. 8E and 9B).

Third, Justice Naor believes that in a single-plaintiff case, a policy consideration relating to deterrence, by itself, is weak as compared to the main consideration of corrective justice. This is because the assignment of any particular level of liability is of no relevance with respect to the achievement of the deterrence objective in a case that is singular and inherently exceptional, and which is unlikely to recur in the future. Thus, even if an injured party is overly compensated, no real harm will have been done to the principle of deterrence. The recurring distortion test leads, Justice Naor believes, to under-compensation and to a violation of the optimal deterrence principle in single-plaintiff cases (in effect, the test leads to under-deterrence). Vice President Rivlin’s approach absolves the negligent party from any liability in a single-plaintiff case and thus gives a “green light” to the causation of tort damages in such cases. In contrast, Justice Naor’s approach, applied both to multiple-plaintiff and single-plaintiff cases, leads to a minimal violation of the principle of optimal deterrence in the single-plaintiff case. In fact, in certain cases, it leads to over-deterrence. However, in a case in which the damage is bodily injury, a certain measure of over-deterrence is acceptable.

c.     Third justification: reducing the magnitude of judicial errors. The preponderance of the evidence rule, and apparently the multiple-plaintiff restriction proposed by the Vice-President as well, are intended to limit the number of judicial errors. However, restricting the number of legal mistakes is not the only possible goal. The objective of reducing the magnitude of a legal error in a single-plaintiff case, i.e., reducing the number of “large errors”, is also a valid goal. According to this approach, the effect of a legal error on an individual is weaker, and may even be more proportionate (Shnor, “The Factual Causal Connection,” supra at p. 588). The decision to set as an objective the reduction of the magnitude of a legal error and to prefer that objective to the reduction of the number of legal errors is a value choice. The court is obligated to decide a dispute within the restrictions of existing knowledge. This is done by dividing the risk of an “erroneous” factual decision (risk of error) between the plaintiff and the negligent defendant. In cases of ambiguity regarding the actual causation of damage, in which a negligent actor is juxtaposed with an innocent injured party and it is not possible to directly trace the real path of causation that actually took place, even on an approximate basis, the proportional liability exception is justified. This view reflects a value judgment that prefers, as an objective, the reduction of the impact of a legal error with regard to an individual injured party over the objective of reducing the overall number of legal errors. This option is consistent with the case law dealing with probability-based compensation in the single-plaintiff case. However, while a concern for reducing the number of legal errors is necessarily based on an analysis of a group of judicial decisions, the aim of reducing the magnitude of a legal error is examined — and can be achieved — through each individual case on its merits.

The spreading of the risk of error can of course be accomplished in the framework of settlement agreements, reached either at the initiative of the court or through agreements made by the parties. Courts have always acted this way in settlement agreement proceedings, in which the risk of error is divided between the parties. Nevertheless, according to Justice Naor, in appropriate cases the risk of error can be divided even without the parties’ consent. The probability-based compensation exception — allowing for a decision that is just under the circumstances of the case, in situations of ambiguity regarding the actual causation of damage — does not rely on the agreement of the parties but rather on substantive tort law policy considerations.

d.    Fourth justification: as a truth-finding incentive. The assignment of proportional liability in this category of cases gives defendants an incentive to develop as much relevant probability-based information as is possible. This type of information, regarding damage causing processes, has substantial social value as a tool that can be used to provide more precise and just compensation in litigation proceedings. Similarly, it can indirectly lead to improvements in the fields of medicine, insurance, risk management and other fields of knowledge. The typical defendants in this type of case (negligence in the framework of bodily injury) are large institutional entities who are — in contrast to the typical plaintiffs — “repeat players” in the legal forum, at least in a series of individual cases. Regarding these defendants, therefore, special importance must be attributed to long-term considerations relating to the guidance of their behavior; such considerations are different from the considerations involved in the specific case. This consideration, too, is not necessarily limited to situations in which there are multiple injured plaintiffs.

Response to criticism — probability-based compensation does not require a legislative change. Probability-based compensation in situations of ambiguity regarding the actual causation of damage is not only the result of “greater sympathy” for the injured party. It is also derived from the principles of tort law themselves, and is justified by the principle of corrective justice, the “lesser evil” argument, and the need to reduce the magnitude of a legal error. According to Justice Naor, it also does not require legislation. A probability-based compensation doctrine, of any kind, can be adopted on the basis of case-by-case rulings. Of course, the legislature may ultimately express its view on this matter, and obviously any statutory criteria that may be prescribed will bind the courts. It should be noted that the concept of transferring the burden of persuasion, which has been invoked in the past in the case law, is not based on any express statute.

The appropriate legal doctrine — proportional liability. Justice Naor made it clear that the doctrine that she is proposing is an exception to the proportional liability rule and not a new conceptual framework that is intended to replace the proportional liability rule. It is not a general risk-based liability doctrine. According to Justice Naor, the proportional liability doctrine in situations of ambiguity regarding the actual causation of damage provides the court with useful tools for providing appropriate protection to the various interests involved in a case, and for balancing those interests. It gives the court the discretion to award partial compensation, to be determined on the basis of statistical evidence or by way of an estimation.

Inspiration from European law. In her opinion, Justice Naor referred extensively the proposed PETL, as support for the absorption of the proportional liability exception into Israeli law. The PETL recognize the proportional liability exception for cases of ambiguity in relation to the actual causation of damage. The exception is the product of the combination of two principles in the proposed PETL. Article 3:103(1) provides as follows:

‘In case of multiple activities, where each of them alone would have been sufficient to cause the damage, but it remains uncertain which one in fact caused it, each activity is regarded as a cause to the extent corresponding to the likelihood that it may have caused the victim’s damage.’

Article 3:106 expands the reach of Article 3:103(1) and provides as follows:

‘The victim has to bear his loss to the extent corresponding to the likelihood that it may have been caused by an activity, occurrence or other circumstance within his own sphere’.

Article 3:106 supplements Article 3:103, and the two are based on the proportional liability exception (see: European Group of Tort Law, Principles of European Tort Law: Text and Commentary (2005) (hereinafter: “Commentary to the PETL”), at p. 56). This article deals with a situation in which there are multiple potential risk factors for the actual causation of the damage suffered by the plaintiff, including “natural” risk factors or risk factors related to the plaintiff himself. The European Principles provide that “natural” risk factors or those related to the plaintiff himself are encompassed within the injured party’s sphere, and he may not receive compensation with respect to these factors. Article 3:103 (2), combined with Article 3:106 which expands it, leads to a proportional liability outcome. The term “activities” means any action or behavior (see Article 3:101) which is liable to constitute a risk factor regarding the actual causation of damage to the plaintiff, including risk factors within the range of the injured party’s liability, such that this definition applies with regard to the two articles, and leads to the proportional liability result in the single-plaintiff case, with liability being divided between the plaintiff and the defendant.

The PETL do not require proof of a recurring distortion: the proportional liability exception applies even if the case is one that does not repeat itself, and it is not necessary to prove that the preponderance of the evidence standard will lead to a systematic distortion in favor of one of the parties. The commentary to Article 3:106 of the PETL offers an individual case of medical negligence as an example of the application of the concept (see Commentary to the European Principles, at p. 58).

The drafters of the PETL were aware of the innovation that the proportional liability exception introduced into English Common law, and they nevertheless recommended its adoption:

‘As already mentioned, supra Article 3:103, the Group realizes that the approach of Article 3:106 might be quite a step for the common law… Seen from a European angle, there is hardly a common core to support the balance of probabilities doctrine. Besides, there seems to be some dispute about it in the common law-world as well’ (Commentary to the European Principles, at pp. 57-58).

According to Justice Naor, the proportional liability exception is consistent with the proposed PETL. It is particularly close to the Austrian law, the “fingerprints” of which are recognizable in the text of the PETL. A similar approach to proportional liability can be found in Estonia, and to a certain extent in the Netherlands as well (see H. Koziol, Digest of European Tort Law, Volume 1: Essential Cases on Natural Causation (2007) at p. 437). A decision of the Estonian Supreme Court, sitting as a Court for Civil Matters, reflects a relaxation of the factual causal connection requirement (see the decision in Case No. 3-2-1-78-06 [12], as cited in Lahe Janno, “Fault in the Three-Stage Structure of the General Elements of Tort,” Juridica International (Vol. 1, 2007), at pp. 152-160). It should be noted that French decisions have also included expressions of a relaxation of the factual causal connection requirement (see the decision in Appeal No. 06-109767 [13]). The European Principles have not yet become law in the European countries, but they are very consistent with Justice Naor’s perspective regarding proportional liability in single-plaintiff cases.

Summary of the Proportional Liability Exception: Specification of the Standard for Probability-Based Compensation:

First, the plaintiff must prove the two other elements of the tort of negligence — negligence and damage — on the basis of the regular preponderance of the evidence standard. The plaintiff must also prove that there is a legal causal connection between the negligence and the damage, in accordance with the regular preponderance of the evidence standard. These requirements reduce the ambiguity issue to the matter of the factual causal connection only. As stated, the plaintiff must prove the damage element as well. Justice Naor’s proposal is that at the current time, the proportional liability exception should be applied only to cases of negligence in connection with bodily injury.

Second, the plaintiff must prove that there is inherent ambiguity in terms of the factual causal connection with regard to the actual causation of damage. If inherent ambiguity with regard to the actual causation of damage has not been established, the case will not be litigated on the basis of the proportional liability exception, but on the basis of the normal preponderance of the evidence standard. On the other hand, if ambiguous causation is proved with regard to the actual causation of damage, the regular preponderance of the evidence standard will not apply.

Third, the assignment of proportional liability is conditioned on proving bodily injury. Justice Naor’s proposal is that the proportional liability exception be applied only in relation to litigation in torts, and only with respect to cases involving bodily injury. The proportional compensation is therefore linked to the existence of the main bodily harm that was caused to a plaintiff, and it is derived from such harm. Justice Naor is aware of the concern that the exception constitutes a “breaching of boundaries” or a “slippery slope”. She therefore believes that it is necessary to establish the bodily injury qualification, even if only at this stage of the development of the rule. Uncompensated bodily injury is the firmest ground for the implementation of the corrective justice consideration in a manner that favors recognition of probability-based compensation. Justice Naor believes that at this stage of the rule’s development, the question of whether the exception should also apply to negligence cases that do not involve proven bodily injury should be left for further review, as this subject did not arise in the Malul case. Justice Naor is also aware of the fact that her approach can be criticized on the ground that a consistent solution would mandate its application to all areas of tort law, and there are those who would say that it should be applied to all areas of law in general; others could argue the opposite — that consistency would require that the proposed solution be rejected, or that no solution be chosen at all. According to Justice Naor, it is necessary to move one step at a time with respect to this complicated issue, drawing conclusions along the way. She does not see a need to restrict the concept of probability-based compensation for bodily injury to medical negligence cases. Nevertheless, as a practical matter, a claim of inherent ambiguity regarding the actual causation of bodily injury will arise in many claims involving medical negligence. This is due to the difficulty in making an absolute determination regarding the reasons for an illness or a defect. Medical negligence is therefore a common case for recognizing the proposed exception (see Porat & Stein, “Indeterminate Causation,” supra, at p. 668). Although the policy considerations that underlie the proportional liability exception are characteristic of all of tort law in general, there is a dispute as to whether the award of probability-based damages should be limited to medical negligence cases only, and various opinions have been expressed in the legal literature. Justice Naor believes that the exception should not be limited to cases of medical negligence only. The proportional liability exception could also apply, for example, to environmental contamination cases. The need to provide a solution to the problem of ambiguity with regard to the actual causation of damage is usually related to ambiguity that is the result of scientific limitations pertaining to the ability to identify the risk factors that can cause bodily injuries. A typical case involving inherent ambiguity regarding the actual causation of bodily injury is when there is no scientific possibility of proving or denying the existence of specific causation using the preponderance of the evidence test. This will be the situation even when there is no statistical evidence, because no relevant scientific research has ever been done. Nevertheless, Justice Naor believes that at present, the proportional liability exception should be applied only to tort law cases based on bodily injury. This exception is frequently applicable in medical negligence cases, although, as stated, it is not exclusive to this area.

Fourth, the plaintiff must prove, by a preponderance of the evidence, that the proven negligence is a significant cause of the particular type of damage that was caused to the plaintiff and that the defendant should have anticipated such damage (hereinafter: “the tortious risk factor”). The proportional liability exception does not necessitate a numerical-mathematical probability criterion, and a significant probability requirement will be sufficient. Such probability will be neither minimal nor negligible. If the plaintiff cannot prove a significant level of probability, even if based on an estimation only, the plaintiff will not be able to rely on the proportional liability exception, and the regular “all or nothing” rule will apply. This requirement of significant probability can reduce the concern that the court will be flooded with lawsuits by excluding marginal cases and establishing a minimum threshold, below which no liability will be assigned to the defendant.

Fifth, the proportional liability exception is available only to injured parties. The proportional liability exception will be adopted only in cases in which the plaintiff has difficulty in meeting the preponderance of the evidence standard due to an inherent obstacle, and when the exception can save him from the trap of ambiguity with respect to the actual causation of damage and help him to obtain partial (proportional) compensation. According to Justice Naor, the exception is not available to defendants in cases in which the plaintiff has proven a factual causal connection based on a preponderance of the evidence. Therefore, injured parties who are able to prove their cases based on a preponderance of the evidence, in reliance on their own specific evidence, opinions and details, will receive full, rather than partial, compensation. The application of the proportional liability exception in favor of defendants as well could go too far in upsetting the traditional preponderance of the evidence approach. Since this is an exception to the main principle, it must be treated as such and interpreted narrowly, especially in light of the centrality of the rule to which it is an exception. The main point is that one of the key policy considerations supporting the proportional liability exception is, as stated, the flaw that has tainted the behavior of the negligent defendant. The moral asymmetry between the plaintiff (the injured party) and the defendant (the wrongdoer) whose negligence has been proven is the starting point that justifies probability-based compensation for this category of cases. Accordingly, this starting point justifies a corrective asymmetry in the legal tools available to the parties in the proceeding. The harm — the damage — is suffered by the injured party. The legal weakness of a factual causal connection that cannot be proved due to ambiguity regarding the actual causation of the damage is also suffered by the injured party. The solution must, therefore, also be something that works in favor of the injured party and not of the wrongdoer. This aspect removes the concern that the doctrine proposed by Justice Naor in this case will worsen the situation of the injured parties.

Sixth, the boundary between the preponderance of the evidence rule and the proportional liability exception is clear. The judge must first establish whether the plaintiff has proved his claim by a preponderance of the evidence, based on the evidentiary material before him. The court has broad discretion in terms of assessing the facts and their relative weight. When the court is persuaded that it is able to determine, based on the preponderance of the evidence, whether a factual causal connection has been established or ruled out, there is no ambiguity regarding the fact of the causation of damage, which is a condition for recourse to the proportional liability exception, and the regular “all or nothing” rule will apply. Thus, when the court is convinced that it has been presented with sufficient evidence to enable it to decide the factual dispute on the basis of the preponderance of the evidence, it must act in accordance with the regular decision-making rule. Accordingly, if the regular preponderance of the evidence rule establishes that a factual causal connection has been proven, the plaintiff will receive full compensation. On the other hand, if it is proven by a preponderance of the evidence that the defendant did not cause any damage, the judgment will clear him of liability. This allays the concern that a defendant might be obligated to pay for damages that he has clearly not caused.

Judicial practice: The manner of calculating compensation

When the criteria for probability-based compensation in cases of ambiguity with respect to the actual causation of damage  have been met (even in a single-plaintiff case), Justice Naor believes that the court has the discretion to award compensation in accordance with the level of probability that the tortious risk factor caused the proven bodily injury.

As stated, the use of statistical evidence cannot replace the regular evidentiary rules for proving facts. However, in cases of ambiguity with respect to the actual causation of damage, it is reasonable to assume that neither of the parties will have specific statistical evidence regarding the injured party. In the absence of specific statistical evidence, the court may rely on evidence of a general statistical probability, for the purpose of awarding probability-based compensation. According to Justice Naor, reliance on evidence regarding a general statistical probability is permissible only if the criteria for applying the proportional liability exception are met. Once the test for the use of the proportional liability exception has been met, and only then — i.e., once the plaintiff has proven, inter alia, that in his case there is ambiguity with respect to the actual causation of damage — the court may rely on statistical evidence regarding general probability, for the purpose of assessing the amount of the probability-based compensation.

Proof based on statistical evidence

General statistical evidence involves an estimation of the general-potential probability, i.e., the probability that the negligence would have caused the damage of the type suffered by the plaintiff, in reliance on scientific proofs, epidemiological studies and statistical estimates. The legal literature has noted the difficulties involved in reliance on general statistical evidence and Justice Naor’s response is that proportional liability should not be determined on the basis of general statistical evidence alone. Such evidence is not sufficient to allow for the application of the proportional liability exception. A necessary condition for its application is that there are specific data regarding the defendant’s negligence vis-à-vis the specific plaintiff, based on proof established using the preponderance of the evidence standard. Once the existence of such data has been established — a condition which is included among the criteria for application of the exception —the trigger for the application of the proportional liability exception is activated. At that point, Justice Naor believes, the court can rely on general statistical evidence for the purpose of awarding proportional compensation. The court’s decision will thus not rely on the general statistical evidence alone, but rather on a combination of such evidence and the specific data regarding the defendant’s negligence towards the plaintiff. The use of general statistical evidence for this purpose adjusts the traditional statistical concepts of causation to the existing scientific reality.

The burden of proof regarding general probability is placed on the plaintiff, and it must be proved by him at the required level. The significance of the requirement is that the plaintiff must establish a proper evidentiary basis for the general degree of probability. If there are data, they need to be presented; the plaintiff must explain, through expert testimony, the significance of that data and how they should be properly evaluated. The judge must not refrain from having recourse to and delving into medical opinions based on scientific studies and statistical assessments. The plaintiff is not required to provide evidence at a particular statistical standard of certainty or at a particular level of reliability; he must only comply with the legal standard of significant general probability. The standard is legal, rather than mathematical. 

A legal decision regarding the existence of a general and significant level of probability must be based, as a main consideration, on the scientific evidence that has been presented, and on logic and understanding against the background of the entirety of the material presented to the court. The proportional liability exception gives new content to the concept of factual causation in the context of ambiguity regarding the actual causation of damage, and as a test that realizes the issue of causation it must be examined from a “broad perspective”. The court must not shirk from implementing the proportional liability exception when the criteria for its implementation have been met. The main function of the court is to decide disputes between parties, taking into consideration the information before it and the information that can be brought before it. It must avoid reaching a decision that allows a defendant who was negligent to “benefit” from the factual ambiguity, leaving the plaintiff empty-handed. Therefore, even if the scientific research has not yet reached the level of unequivocal scientific proof, the court may determine a legal truth regarding the scientific reality, even if only on the basis of partial scientific evidence, while giving such evidence the proper weight, and in reliance on other findings as well. There is no reason why the degree of (general) probability cannot be proven, for example, through a general estimation made by an expert giving evidence with a reasonable level of medical certainty. A medical opinion should also specify the entire array of individual circumstances pertaining to the plaintiff’s case (such as his medical history, the absence of any hereditary indications from his family history, etc.)

As a rule, the compensation to be awarded is determined by multiplying the proven level of significant probability by the proven monetary value of the bodily injury. Calculation of the amount of compensation to be awarded based on the proportional liability exception can be based on an estimation, as was done here in the original decision. The level of probability that will ultimately be adopted by the court for the purpose of determining the partial compensation need not reflect actual statistical or mathematical data; it can also reflect an estimation of the relevant probability, based on life experience and on expert testimony, weighed along with an un-measurable assessment of the weight of the evidence presented as support for each party’s position regarding causation.

Response to criticism: The conditions that outline the parameters of the proportional liability exception provide the response to the concern that the exception will be exercised in a way that distorts the determination of the amount of compensation, and to the concern that the regular rule will be swallowed up by the exception. The dividing line between the regular rule and the proportional liability exception is clear, and the latter is not an “alternative” or “shortcut” to the regular rule. Justice Naor also discussed the criticism that the rule established in the Malul decision is liable to undermine legal certainty, and she offered two responses to this. On a substantive level, the problem of an adverse impact on legal certainty is unavoidable in various areas of law, and all that can be done is to attempt to limit the scope of that impact, although it cannot be avoided completely. The proportional liability exception reduces the degree to which legal decisions deviate from the “factual truth”, and its impact on certainty is low. On a practical level, Justice Naor believes that as time passes, the implementation of the proportional liability exception will reach some level of certainty.

The proportional liability exception is a value decision. In concluding her opinion, Justice Naor noted that the proportional liability exception is a value-based decision. Tort law is replete with value-based decisions. Judicial decisions follow this path, developing from case to case. The proportional liability exception provides a just response to the failure of the traditional “preponderance of the evidence” approach in cases of ambiguity regarding the actual causation of damage. As a flexible and balanced exception, it can prevent the injustice which may be the outcome of the flaw in the traditional approach. Thus, an entire system of a rule and an exception thereto is created — a system which, in Justice Naor’s opinion, achieves the objectives of tort law in an optimal fashion. The proportional liability exception reflects an “intermediate model” as compared to the more extreme models of no compensation at all (according to the ordinary rule of “all or nothing”) or of awarding full compensation (in accordance with the doctrine of transferring the burden of proof or similar approaches). When the injured party can prove, on the basis of a preponderance of the evidence, all the elements of liability other than a factual causal connection, and can also prove in accordance with that same standard the element of inherent ambiguity regarding the actual causation of damage, it is not just to require that the plaintiff also bear, alone, the risks of a judicial error that may result from such ambiguity. In such a situation, it is the negligent party, the party that should have foreseen the damage and who may even have actually caused it — should be the party that bears —  even if only partially — the cost of making good the damage that has been caused.

Justice Naor explained that the proportional liability exception is a substantive tort law exception and not an evidentiary exception that applies to all legal fields in general. The proportional liability exception does not apply in the law of evidence, which deals with the question of how to determine whether or not factual causation exists. It relates to the substantive law of torts, which deals with the question of what is a causal connection, while refining that very concept in accordance with the exceptional circumstances of ambiguity regarding the actual causation of damage. This exception “relaxes” the factual causation requirement in tort law, and when invoked it results in proportional compensation.

According to Justice Naor, a judge must find new solutions to new problems, within the bounds of judicial authority and the basic values of the existing law. The model proposed by Justice Naor, which explains the justifications, content and limitations of the proportional liability exception, reflects, in her view, a flexible and fitting solution to the ambiguous causation problem. This exception applies to both multiple-plaintiff and single-plaintiff cases.

For these reasons, Justice Naor took the position that the petition for a further hearing should be denied.

 

Justice S. Joubran

1.    Justice Joubran agreed with the positions taken by his colleagues, Vice President E. Rivlin and Justice M. Naor, with respect to the possibility of deviating from the preponderance of the evidence standard, including the “all or nothing” result that it entails, in tort law cases involving ambiguous causation — and applying instead the doctrine of probability-based compensation. Regarding the areas in which this doctrine should apply, Justice Joubran took the position of his colleague Justice Naor, to the effect that there is no need to show that the relevant behavior is part of a phenomenon that creates a “recurring distortion” (in contrast to the view of the Vice President, who does require such a showing) and it can be applied in a single plaintiff case. Nevertheless, Justice Joubran’s reasons for taking this position are slightly different from those of Justice Naor, although he agreed with her regarding its application to this case.

Application of the principles of corrective justice

2.    Justice Joubran noted that the Vice President, who sought to approach the question before the Court from a broad perspective, based his approach, inter alia, on the need to apply the principle of corrective justice, and to avoid insufficient or excessive assignment of liability and prevent the disruption of the bipolar connection between the wrongdoer and the injured party — a connection which is the core of the concept of the corrective justice. However, it is not necessary to determine that the principle of corrective justice is violated only when there is a recurring distortion, or why the implementation of the principle of corrective justice mandates such a requirement. If one is to say that a recurring distortion inherently violates the principle of justice, the violation requires resolution at the single-plaintiff level, and a multiplicity of cases is not in itself sufficient to substantively alter the injustice caused in the single-plaintiff case.

To the extent that the wrongdoer is not liable for the injured party’s damages (and on a practical level, to the extent that such liability has not been proven), then no damage at all has been caused to the “injured party” from the perspective of corrective justice. The fault of the wrongdoer does not, per se, help us to determine his liability vis-à-vis the injured party, if the fault does not exist independently as a violation by the wrongdoer of the injured party’s right, established through independent proof of a causal connection between the two parties. Indeed, Justice Joubran noted that Justice Naor did not view the wrongdoer’s negligence as being the last word on the issue, capable of overcoming the absence of liability on his part for the “injured party’s” injury: an inability to establish liability would be overcome only in those cases in which there is a real chance that the wrongdoer’s acts did in fact cause the damage, and in which an inherent ambiguity prevents the plaintiff from proving liability on the basis of a preponderance of the evidence. However, in Justice Joubran’s view, the conclusion to be drawn from this is broader — that as long as the factual connection between the defendant’s negligence and the plaintiff’s alleged damages has not been sufficiently proven from a legal perspective, the fact of negligence itself is not sufficient to lead to a change in the legal treatment of the defendant’s liability, even when there is ambiguous causation. Thus, even though, as stated, Justice Joubran agreed with his colleague that circumstances of ambiguous causation will justify the plaintiff’s compensation by the defendant, the justification is not based on the wrongdoer’s “fault” or on a preference for an innocent injured party.

Scientific uncertainty

The essence of the issue before us relates to the complexity and uniqueness of the scientific knowledge involved in this and other similar issues that create ambiguity regarding a causal connection. In Justice Joubran’s view, the difficulty involved in this situation — which must be considered by the Court — turns on the very nature of the ambiguity. This nature prevents the law from properly relating to the real world, thus impeding any operation of the principles of justice.

4.    Scientific developments, and as concerns us here, developments in medical science, have led to many discoveries regarding the physical world and the functioning of the human body. These discoveries have shed light on causal connections that had previously been hidden, and they provide a foundation for connections that had previously been shrouded in mystery. The development of scientific knowledge regarding causation must be recognized in any finding regarding the need for the law to reflect an unambiguous factual reality. Among other things, such developments regarding scientific knowledge must find expression through recognition of the type of ambiguous causation which is exclusive to such knowledge, as an exception to the rules of the legal system, in order to keep pace with the operation of the real world. In these cases of ambiguous scientific causation, there is no longer an unambiguous reality about which it may be possible, with sufficient diligence, to reach a legal conclusion through recourse to the standard legal tools, and to leave no structural doubt. The reality to which the law purports to relate is unambiguous, or at least it can be seen as such. However, within a narrow area of scientific ambiguity, in which reality itself cannot be understood and formulated through the use of the scientific tools that are currently available, it would seem that the law must adjust its approach and become more flexible in terms of its pretension to establish an unambiguous reality.

5.    It is important to delineate, with precision, the boundaries of the field with which we are dealing, and to distinguish it from other areas in which there may also be ambiguity. The cases under discussion here are not only those in which the absence of relevant information creates ambiguity regarding a causal connection, leading to difficulty in making a determination; they are also those cases in which the scientific knowledge itself, by its very nature, does not allow for a clear determination, either inside or outside the courtroom. It is also important to distinguish between scientific ambiguity and scientific disputes. Only when the case involves no factual ambiguity and no scientific dispute — and when what thus remains is true scientific ambiguity in which the scientific information brought before the court is itself ambiguous — can it be said that the situation is one in which reality must be represented in court through a rule which is itself ambiguous, in the form of a proportionality-probability based proof of a causal connection between a wrong that has been done and an injury that has been suffered. Obviously, the very existence of scientific ambiguity (as opposed to its content) must be proven in court through the usual evidentiary rules, on the basis of a preponderance of the evidence.

The appropriate doctrine — a change in the standard of persuasion

6.    Unlike his colleague Justice Naor, Justice Joubran believes that the geometrical location of the scientific ambiguity exception is primarily in the evidentiary realm, and relates to the question of the manner in which the fact of a causal connection is to be determined. Nevertheless, the exception does not involve content only; it involves matters of substance and form as well, going beyond the single-value mode through which the law usually relates to reality. As such, its impact also extends beyond the purely evidentiary realm and is reflected in the nature of the legal determination that is based on its acceptance. Thus, the determination of the evidentiary foundation is established on a proportionality-probability basis and leads to the substantive determination regarding the existence of a proportionate causal connection. However, this proportionality results only from the nature of the evidentiary exception on which it relies. In this sense, both the causal connection and, accordingly, the wrongdoer’s liability, are absolute with respect to the wrongdoer’s proportionate share of the damages that have been proven through invocation of the evidentiary exception. Unlike his colleague Justice Naor, Justice Joubran does not view this conclusion as creating a substantive change in the law of tort, in the form of the creation of proportional liability, but rather as a relaxation of a procedural/evidentiary rule, the consequence of which is a partial proof of a causal connection, at the level of substantial probability. Consequently, the conclusion to be drawn from proving the causal connection at a level lower than the preponderance of the evidence is that the wrongdoer is liable for damages that are proportional to the degree of probability to which the wrongdoer’s causation of the damage was proven.

7.    It is important to reiterate that the factual determination is not that the wrongdoer may have caused the damage, but that absent the ability to determine otherwise, the wrongdoer will be viewed as the party who has been proven to have actually caused — as a factual matter — the part of the damage that is expressed by the degree of probability that he caused the full amount of the damage. In this sense, as stated, the wrongdoer’s liability is not partial but absolute — in relation to his proven part of the damage.

 

Justice E. Rubinstein

1.    Justice Rubinstein studied the comprehensive and illuminating opinions penned by the Vice President and Justice Naor carefully expressed the difficulty of the case. According to Justice Rubinstein, the recurring distortion cases described by the Vice President provide a good example of cases in which the probability-based compensation doctrine should be applied, but ultimately, he accepted the position taken by Justice Naor ― i.e., that the doctrine should not be limited to these rare cases. For this reason, Justice Rubinstein concurred in her opinion, both with regard to the classification of cases in which the doctrine of proportional liability should be invoked and with regard to the other issues she discussed (particularly the manner of implementation of the doctrine in cases in which a general probability of more than 50% has been proven, and the continued application of the doctrine of compensation for the loss of chances of recovery). In the field of torts as well, the human and legal realities are often neither black nor white, but rather some shade of gray. Justice often requires a level of flexibility beyond an “all or nothing” approach, and although this is not a simple doctrine, it is, in Justice Rubinstein’s view, a basic principle for other areas of law as well.

2.    Justice Rubinstein conceded that even though from a theoretical perspective and, admittedly, from an intuitive perspective as well, Justice Naor’s method with respect to ambiguous causation is legitimate, it does give rise to a concern that boundaries will be breached and regarding the creation of a “slippery slope”, as the Vice President wrote. However, with respect to the data in the world of judicial proceedings, the judges deciding this further hearing are better situated than their predecessors who decided the appeal: since the Supreme Court issued the original decision in the appeal in this case in 2005, the trial courts have sought to apply of application of the rule laid down in the appeal decision in many cases, and it would appear that the rule has been implemented cautiously and in a measured manner. Furthermore, due to vast technological developments, especially those that have taken place during the twentieth century, reality has become especially complex and complicated; the amount of data that is available has increased and even though the tools of measurement have improved, the complexity has increased at a very rapid pace. The philosophy of the law of torts must, therefore, move along as well, and even if there is no such category as a “half-tort”, there are nevertheless categories such as a “possible tort” and there are certainly categories such as “one eighth of the damages”, which the Vice President ruled out. This is true, Justice Rubinstein believes, in our case, as well. Furthermore, the matter under discussion involves tort law. Perhaps, of all the areas of law, this field is most amenable to estimations. In Justice Rubinstein’s view, in appropriate circumstances, the law must strive to reach a just and moral result by means of division of the whole into parts.

3. According to Justice Rubinstein, the Vice President was rightly concerned that “passion will upset the proper order” — that the sense of justice, even if it lacks a proper legal basis, may mislead us into what is actually unjust. This concern cannot be completely eradicated, but it can — as stated — be dealt with by means of judicial responsibility, and through the cautious development of the relevant rules in each particular cause. Justice Rubinstein believes that when examining the conditions for opening the “gates of the proportional liability exception” in each case, the key condition that a deciding judge must consider should be whether the case involves “inherent ambiguous causation”. Here the courts will need to distinguish between ambiguity resulting from a defective evidentiary basis and inherent ambiguity.

Decision-making in doubtful cases in Jewish law

4. Although Justice Naor referred Jewish law in her opinion, Justice Rubinstein wished to expand this matter somewhat. The resolution of uncertainties is not only common in Jewish law; it is actually built into it. Questions of uncertainty have accompanied Jewish law from the earliest times, both with regard to causation or to indirect damage and the question of liability for such, and with regard to the amount of the damage. Regarding causation, the Talmud teaches that there had originally been a debate as to which of two rules of decision-making should be used in cases of doubt. One scholar, Symmachus, of the fifth generation of Tannaim (in whose time the Mishnah was redacted) took the position that “money, the ownership of which cannot be decided, is divided.” The Sages, however, say that “it is a fundamental principle in law that the burden of proof falls on the claimant.” The rationale underlying the “distributive solution” is the one-sided character of the rule regarding the burden of proof, which creates a zero-sum game, although “justice is not necessarily only on one side.” The rule that was adopted —that did not follow Symmachus’ approach — was the binary one (which in this case would require a decision in favor of either one side or the other), is, in principle, the rule used in Israeli law as well (Maimonides, Laws of Financial Damages, 9:3; Laws of Forbidden Relations 15:26). Nevertheless, we find that regarding a number of issues, a decision was reached that imposed the outcome of the doubt on both sides. In the Laws of Sales (20:11), Maimonides stated as follows: “If one says ‘I do not know’ and the other says ‘I do not know’ and the [subject] is located in a domain which does not belong to either of them, it should be divided.” Much ink has been spilt regarding the question of how Maimonides’ determination can be reconciled with the general rules of decision-making in Jewish law, but the fact is that the arbiters of Jewish law believed that the two rules of decision-making are compatible. Jewish sages were willing to issue immediate rulings in cases of inherent ambiguity regarding the existence of a causal connection, by dividing liability — and it appears that such rulings are not considered to be within the normal confines of the law (although, as Justice Naor noted, a rabbinical court does have authority to impose a compromise settlement). However, in special situations there may be special rules of decision, and it is not unheard of in under special, predetermined circumstances, Jewish law will apply a special rule of decision-making. In Justice Rubinstein’s view, on the broader plane Jewish law in this context focuses on the issues of justice and of ethical parameters; indeed, there may be cases in which justice comes down entirely on one side, but there are many cases in which justice lies in the middle, and it is appropriate to rule accordingly.

Regarding “judicial legislation” in this context

5.    Justice Rubinstein also wished to add a few words regarding Justice Procaccia’s opinion. He wished to explain why he believes that his position comports with the judicial function and in no way deviates from its bounds. First, on the theoretical level: this subject is no different, in its essence, from many other subjects in which the law has developed through judicial decision-making, and the preponderance of the evidence rule is itself a product of case law development. If the preponderance of the evidence rule is the product of case law, must the well of creativity dry up in its wake? Furthermore, we should not forget that the legal system with the strongest impact on Israel has been the British system, and the common law system in general, which is entirely a matter of “internal growth”, like the branches of a tree that spread out from the trunk, or cells that split off from a living organism. Moreover, in the Foundations of Law Statute, 5740-1980, the Israeli legislature itself clearly established the ways in which the law may be developed in Israel. In Justice Rubinstein’s view, the development of the law in this case, by way of interpretation, does not deviate from the parameters of interpretative legitimacy. As stated, this material is the bread and butter of a court’s daily work, and in any event it is within the realm of its professional expertise.

On judicial interpretation, activism, and passivism in Jewish law

6.    In Jewish law as well, the creation of rules of interpretation (“the thirteen rules through which the Torah is expounded”) has facilitated expansion. Even without considering all the details of these rules, it is clear that the interpretative standards are, by their nature, innovative. A related subject is that of judicial “activism” as opposed to “passivism”; here, too, similar questions have arisen in Jewish law. Maimonides’ halakhic statement is well known: “[a] judge must adjudicate civil law cases according to that which he is inclined to regard as true and which he feels strongly in his heart to be correct, even though he does not have clear proof of the matter. Needless to say, if he knows with certainty that a matter is true, he must judge the case according to what he knows” (Laws of the Sanhedrin, 24:1). Maimonides continued:  “These matters are given over solely to the heart of the judge to decide according to what he perceives as being a true judgment” (ibid.). This has been presented as creating a legal revolution which places the judge as the “main pillar, almost the only one, on which the entire structure of the laws between man and his fellow man lies” (H.S. Hefetz, Circumstantial Evidence in Jewish Law (1974), at p. 52). Justice Rubinstein would add to this that the Jewish law of torts has found ways to do justice which take into consideration a broad social picture.

Following Justice Grunis’ opinion: and henceforth proportional liability (had there been a majority for such)

7.    Justice Grunis has expressed his agreement with the view that modern law has distanced itself from binary “all or nothing” decisions. But he drew a distinction between those decisions and the “ambiguous causation” situation, since the doctrines informing those decisions do not deal with the question of whether or not a certain event has occurred (“facts”), but rather,  with the ramifications of what has occurred; even if Justice Grunis’ comments are factually correct, they still do not provide an answer to the basic question before the Court in this Further Hearing, which is essentially no different from the dilemmas presented by the preponderance of evidence standard, and certainly no different from the various standards that are so common in the law of torts — a field which is full of uncertainties. What is instructive in Justice Grunis’ comments is the methodical jurisprudential attempt to focus as much as possible on the circumstances of the particular case, in order to determine the relationship between the element of negligence and the “act of God” factor, but his argument does not totally invalidate the “proportional liability” doctrine. Justice Rubinstein reiterated: the preponderance of the evidence rule is indeed based — as Justice Grunis noted — on accumulated judicial experience, but it is nevertheless implemented through the exercise of judicial discretion.

8.    Justice Grunis considered the question of the relationship between the doctrine of proportional liability and the area of compromise settlements, noting that if the results of the two are identical, the significance of invoking the proportional liability doctrine is that it allows the court to render a ruling based on compromise without obtaining the parties’ consent to such. This comparison is attractive, but Justice Rubinstein disputed its fundamental validity, even if it does occur coincidentally. Furthermore, the difference between a decision based on proportional liability and a compromise decision is, inter alia, that such compromise settlements often establish, with the consent of the parties, both a ceiling and a floor for the amount to be awarded, and in general the court does not provide any — or only very little — reasoning for its decision; a decision based on proportional liability will, and should, include a fitting presentation of the court’s reasoning, based on substantive legal considerations, even if the actual decision regarding the payment of damages is based on an estimation, as often happens in tort cases. Justice Rubinstein noted Justice Grunis’ concern that increased judicial discretion will lead, inter alia, to less certainty and a heightened concern about “arbitrariness” in the sense that the judges’ personal opinions and set of values will be promoted in their decisions. Justice Rubinstein himself believes that in the case of decisions reached by professional judges — rather than by, for example, a jury, as is the practice in England and in the United States — this concern is relatively limited: first, judges exercise professional caution, based on their experience, and second, even if the implementation of proportional liability involves the measures to which Justice Grunis referred, such as expert testimony regarding a statistical assessment of damage, acceptance of the doctrine is still a far cry from acceptance of estimations based on “the length of the chancellor’s foot”.

9.    Last but not least: Justice Grunis fears the slippery slope of an approach of averages and proportionality. However, he certainly does not dispute that the function of the court is to decide disputes justly: “Hear you the causes between your brethren, and judge between a man and his brother, and the stranger that is with him” (Deuteronomy 1:16); “Justice, justice shall you pursue” (Deuteronomy 16:20). The statutes and the case law are replete with expressions of justice. It is the essence of adjudication. No judge is identical to any other judge, and there may therefore be differences in rulings (even when the preponderance of the evidence rule is followed). Justice Rubinstein argued that there is no need to fear the “multiplicity of voices” of judges and decisions in the sense that the “law was placed in the hands of each person” (Mishnah, Shevi’it 2:1). Ultimately, collective understanding and the appeals hierarchy have their cumulative value, and common sense will have its place. Justice Rubinstein’s view is that without detracting from the aspiration of all his colleagues to do justice, justice would be best served if the view of the four judges supporting the doctrine of proportional liability were to be accepted.

 

President D. Beinisch

President Beinisch stressed that the starting point for the discussion is the consensus that the general rule remains that of proof on the basis of the “preponderance of the evidence”. It is also agreed that in certain cases of ambiguous causation, there may be exceptions to this rule that will apply when the normal rule does not provide an adequate solution; in those cases, the probability-based compensation exception should be invoked. The dispute under discussion relates to the type of cases in which the exception can be applied when causation of damage cannot be proven using the regular rules of evidence.

2.    The scope of the application of the exception that allows a court to award probability-based damages requires additional determinations, the most important of which is the distinction between ambiguity relating to the fact that damage has been caused, and ambiguity relating to the amount of the damage. In this context, President Beinisch noted that the difficulty involved in the implementation of partial compensation solutions when the ambiguity relates to the fact of causation of the damage is much greater than in situations in which it has been proven that the claimed negligence caused damage to the plaintiff, and the factual ambiguity relates only to the amount of the damage.

3.    President Beinisch noted that the Vice President and Justice Naor had different approaches to the issue of ambiguity with respect to the actual causation of damage, and each of their proposals appears to her to be extreme. The President’s view is that a middle way is called for, one which is dictated by the need to proceed carefully when travelling along this judicial path.

4.    President Beinisch believes that the solution proposed by the Vice President for “recurring distortion” situations, should be for cases involving the said type of ambiguous causation. Nevertheless, President Beinisch noted that the Vice President’s approach may lead to an excessive reduction of tort liability. Thus, for example, she believes that there is no justification for rejecting the case law that has recognized an independent head of damage for “loss of chance of recovery”, since this doctrine has already become established in our system and the case law has noted its advantages. In this connection, the President expressed her agreement with the distinction made by Justice Naor between the head of damage of loss of chance of recovery, and the “increased risk” head of damage. The President added that Justice Naor’s approach is based on a desire to reach a just result in a particular case, with the court favoring the innocent injured plaintiff over a defendant whose negligence has been proven; however, it is doubtful that probability-based compensation, in the format proposed by Justice Naor or one similar to it (such as that proposed by Justice Joubran), would indeed lead to just results in the long run. President Beinisch added in this context that in the absence of clearer boundaries, there is a real concern that this approach will create a slippery slope, and she has therefore refrained from accepting such a determination as of the current time.

5.    President Beinisch expressed her hope that in the years to come, a solution may be developed for some of the problems engendered by ambiguous causation that result from the limitations of scientific knowledge. There have been scientific developments in certain areas that were formerly ambiguous or unclear, and these developments have made it possible to prove the causes of various types of damages as a factual matter. Once the ambiguity or lack of clarity regarding these matters was removed, solutions for the problem of compensation were provided, after the fact, by way of legislation.

6.    Another issue that must be considered is whether the proportionate damages approach requires, inter alia, an examination of the possibility of also applying the apportionment solution to the defendant, who bears the burden of compensation. It is necessary, in this context, to consider the fact that in the final analysis, the cost of the expansion of tort liability may be borne by the public and not only by the wrongdoer. For these reasons, President Beinisch’s opinion is that, although the expansion of tort liability is a worthy aspiration, any such expansion must be accomplished methodically and in a balanced fashion. The desire to reach a just result in a particular case is the basis of any judicial proceeding; it is necessary, however, to exercise the greatest possible care in introducing comprehensive changes in the substantive law, so as to avoid the modification of existing norms only because of the need to resolve a particular case. In appropriate cases, therefore, an effort should be made to reach, in a practical manner, the most just result in the particular circumstances. It may be that the suitable means to accomplish this, in those circumstances which appear to the judge to be appropriate, would be, inter alia, to encourage the parties to agree to a consensual compromise ruling. Another possible solution, to be used in exceptional circumstances, would be to transfer the burden of persuasion.

President Beinisch noted that in her view, the main point should be to avoid an ultimate result in which the public as a whole bears the cost of providing compensation for tort damages. It may be that the just solution involves a different economic, social or insurance-related distribution of the costs, but such a solution can be developed only after there has been a public discussion of the matter and an examination of the possibility of appropriate legislation. It therefore appears that the time for a comprehensive solution to the issue of proving causal connection other than through traditional measures has not yet arrived.

President Beinisch therefore found that she could not concur in Justice Naor’s opinion.

 

Justice E. Arbel

Justice Arbel agreed with Justice Naor that probability-based compensation should be allowed in cases of ambiguous causation even in single-plaintiff cases, and that the application of this rule should not be limited to “recurring distortion” cases alone. In her view, when the ambiguity in an ambiguous causation case concerns the actual causation of damage, the legal truth, as established through the use of the standard preponderance of the evidence rule, is very far from the factual truth. It is therefore necessary to choose another rule that will bring the two truths closer together by means of probability-based compensation that reduces the magnitude of legal errors. It should be recalled that it will have been proven in these cases that the wrongdoer was negligent and that he created an unreasonable danger. There is a possibility that such a wrongdoer will stand to benefit if he is ordered to pay only probability-based compensation, if the result is that he is not required to pay for all the damages that he actually caused, but it also may be the case that he will be required to pay a part of the damage which he did not cause. However, this situation is preferable to one in which the injured and innocent party is not compensated at all. This juxtaposition reflects the concept of corrective justice mentioned by Justice Naor. Justice Arbel found that this situation is also preferable in terms of deterrence: if probability-based compensation is not allowed in a single-plaintiff case, the result will lead to insufficient deterrence, but if partial probability-based compensation is allowed, the deterrence will be optimal under the circumstances, as it is proportionate to the probability that damage will be caused as a result of the risk created by the wrongdoer. With respect to deterrence, the law recognizes the need to deter wrongful behavior, even in cases in which neither a causal connection nor actual damage has been proven.

According to Justice Arbel, the courts must recognize that the limitations of human knowledge create a challenge that cannot always be met through the traditional rules that have been applied by the courts for many years in the framework of tort law. It is therefore necessary to continue to develop the law of torts such that it offers an optimal solution, in terms of all its objectives, for cases of this type as well. The balance in cases of this type must change, and the emphasis must be placed on the wrongdoer’s negligence. In cases in which both the wrongdoer’s negligence and the damages suffered by the innocent injured party have been proven, the proportional liability exception is the best means for achieving the objectives of the law of torts, as well as the most just solution in the specific case.

 Justice Arbel believes that doctrines that were previously developed in the case law and which do not provide a comprehensive and systematic solution in cases of ambiguity regarding the actual causation of damage are not sufficient. Similarly, solutions such as the idea of bringing the parties to a compromise, or a transfer of the burden of proof, or waiting for science to advance, do not provide a true and comprehensive jurisprudential solution for the substantive question that has arisen and which must now be decided. As for the loss of chance of recovery doctrine, it provides only a partial solution to the problem of ambiguity regarding the actual causation of damage. It is therefore appropriate to add to that doctrine another more comprehensive and inclusive doctrine, as is presented in Justice Naor’s opinion.

Justice Arbel believes that the concerns created by this innovative rule can be allayed. First, the case law has already taken the first steps towards resolving the ambiguous causation issue through the use of partial compensation, in a manner that in fact deviates from the preponderance of the evidence standard; second, the new rule established in the Malul case was already set out in the decision on appeal, and since its issuance, the rule has been implemented by the trial courts without breaching any boundaries; and third, in the future it will continue to be possible and necessary to monitor the case law on this issue, to examine it, to preserve the existing boundaries and, when necessary, to establish additional boundaries or provide additional direction in order to preserve the appropriate limitations of this rule. An essential part of this Court’s function is to develop the law, and it must not flinch from doing so when necessary and appropriate.

 

Justice A. Procaccia

1.    In the law at present, the rule is that the plaintiff is required to prove all the elements of a civil cause of action on the basis of the preponderance of the evidence. A plaintiff wins his case if he can prove all the elements of his cause of action at that level or higher. If he is unable to do so, he loses his claim in its entirety. The preponderance of the evidence standard is based on an averaging of the risks and chances between the plaintiff and the defendant, using probability values. “Corrective justice” according to the principles of the preponderance of the evidence standard rests on a conception that there is a symmetry between the plaintiff and the defendant, with the equilibrium point between them being at the middle of a scale of proof that is comprised of various stages.

2.    The concept of a “liability ranking” for the defendant, derived from the level of proof that has been provided by the plaintiff, even if that proof is less than 50%, is foreign to the principle of the preponderance of the evidence standard, and deviates substantially from the rationale underlying the required level of proof in civil cases. The possibility that a lower level of proof will produce a proportional liability outcome derived from that lower level of proof is foreign to the standard evidentiary principle, and fundamentally changes the existing equilibrium point for proving a civil law cause of action. An evidentiary rule that enables partial proof of a substantive element of the cause of action, while establishing the defendant’s partial liability, involves not only a material change in the rules of evidence but also a profound change in the substantive law rules relating to civil liability.

3.    The possibility of recognizing a level of proof which is lower than the preponderance of the evidence standard, and of graduated liability derived therefrom, constitutes a profound revolution in the conception of liability and the alignment of rights and obligations in tort law. This revolution is liable to impact on all areas of civil law and to bring about substantial changes in the concept of liability and the level of proof required in all areas of civil law. Such changes reflect a movement of the equilibrium point of the alignment of the plaintiff’s and the defendant’s alignment of risks and chances, and they have far-reaching implications in general areas of policy — social, economic, and moral. They affect the level of legal certainty and the ability to assess, in advance, the legal results of a given dispute.

4.    Justice Procaccia noted that the proposals suggested by her fellow judges, important and interesting as they are, can be categorized as broad and wide-impacting judicial. They lead to a substantive change in the law of torts and to a revolution in the rules of evidence. They shift the existing equilibrium point in the legal relationships between the wrongdoer and the injured party. And they involve far-reaching changes in current legal practice.

5.    The concept of probability-based compensation attempts to bridge the gap between the law and the dictates of reality under difficult circumstances, in which the existing legal tools do not provide suitable answers for an injured party who faces systemic difficulties in proving the connection between the damage caused to him and the defendant’s fault. In order to bridge the gaps it is first necessary to identify the categories of cases that require special judicial tools and the types of damages for which special tools are to be used, as stated; it is also necessary to find the tools that can be used to bridge the existing gap. It may also be possible to find solutions for bridging the gap that are external to the existing system, such as compensation without proof of fault, through a statutory mechanism to be devised for that purpose. The said changes may well have a decisive effect on the perception of civil liability under the substantive law, on the remedies to be provided in the framework thereof, and on the proper point of equilibrium between the plaintiff and the defendant. General aspects of legal policy in the areas of society, economics and morality accompany this effort. Such a change is likely to affect the entire civil law and the legal system as a whole.

6.    This is not a natural and integrative development of the existing law, but a substantive change of existing laws, which impacts on the entire system. Such a change requires that the following questions, inter alia, be considered:

Is there a justification for recognizing factual ambiguity and graduated liability with respect to the causal connection element in particular, rather than in relation to the elements of fault and causation of damage? Should the recognition of graduated liability be limited to bodily injury, medical negligence and mass torts, without expanding it to cover additional situations — including other areas of law — which may involve structural evidentiary difficulties? Is it possible to recognize a defendant’s graduated liability without a symmetric adjustment of the amount of the wrongdoer’s liability, in accordance with the level at which his actual liability was proven over and above the preponderance of the evidence standard? What are the evidentiary requirements that a plaintiff must meet in situations of compensation on the basis of graduated liability: should any level of proof be sufficient in order to establish such liability or should a minimum threshold be set which will entail the rejection of claims that do not reach the said level? How can the transfer of the burden of proof in the event of ambiguity involving the tort of negligence (for example, in cases in which the res ipsa loquitor rule applies and in those involving hazardous materials) be reconciled with a situation of ambiguity regarding a causal connection, which according to the various proposals that have been raised will not serve to transfer the burden, but will allow for the establishment of graduated liability?

What are the financial costs for the parties and for the general public as a result of the proposed changes; what will their impact be on the scope of insurance coverage that will be required and on the size of the premiums that will be charged? How will these changes affect the professional status of defendants in the fields of medicine or science, whose liability will be expanded; will there be excessive deterrence of doctors, which will increase the risk of medicine being practiced defensively?

What is the response to ethical questions arising in the context of the proposed changes, which seek to impose proportional liability on the wrongdoer at a level of proof that does not ensure any substantive or concrete degree of probability that the wrongdoer is actually responsible for the damage caused to the plaintiff, and what is the effect of the “fault” that is assigned to the defendant under such circumstances from the perspective of morality and legal justice? What is the impact of the proposed changes on private defendants who do not have deep pockets, as compared to defendants that are large entities protected by insurance? How will these changes in the concept of tort liability impact on the concepts of civil liability in other areas of law? Can a conceptual reform be carried out in the narrow field of tort law without affecting the harmony that must prevail throughout the entire system, and will the changes in tort law not mandate corresponding changes in other areas of law, in situations of inherent evidentiary difficulties?

7.    These questions, which do not exhaust all the aspects of this subject, cannot be examined in a comprehensive, universal manner in the framework of judicial legislation. They require broad and in-depth discussion in a comprehensive legislative process. The issue of ambiguous causation, in all its aspects, is therefore a matter that must be handled by the legislature.

 

Justice A. Grunis

1.    Justice Grunis agreed with the position taken by President Beinisch, Deputy President Rivlin, and Justices Procaccia and Levy — holding that the rule adopted in the appeal which is the subject of this further hearing should be revoked. Justice Grunis’ position is that tort law should not recognize proportional liability in cases of ambiguity regarding causation.

2.    First, Justice Grunis noted that it is highly doubtful that the case under discussion raises an “ambiguous causation” issue — the issue which is the basis of the further hearing. This is because it was not proven in this case that there was an inherent difficulty regarding the determination of the cause of the damage suffered by respondent 1 (hereinafter: “the respondent”). Justice Grunis emphasized, regarding this matter, that when a trial court is presented with evidence that indicates that a particular possible cause cannot be ruled out as the cause of damages, alongside evidence establishing that there is a known and proven factor that causes the damage, a ruling whereby the damage was caused by the known and recognized cause is unavoidable. In our case, the evidence presented to the District Court indicates that premature birth is a certain and recognized cause of the difficult outcome, while lengthy bleeding is a possible cause of damage. It would therefore have been justified to rule that the respondent suffered damage because she was born prematurely and not because of the delay in her being delivered by a Caesarian section.

3.    Despite this conclusion, Justice Grunis felt it necessary to discuss the issue raised in the further hearing. His starting assumption, for this purpose, was that the trial court was faced with a situation in which it was not possible to decide, on the basis of the evidence, whether the damage was caused by the hospital’s negligence or by the premature birth itself.

4.    As stated, it is Justice Grunis’ position that proportional liability should not be recognized in a manner that would allow a negligent party to compensate the plaintiff not for the full amount of the damages, but rather in accordance with the level of that party’s proportional liability. It is also unacceptable to require a party to compensate an injured party only because the first party negligently created a risk for other people, if it is not possible to prove that the negligence caused the second party’s injury. Such a conclusion is contrary to the tort law principles of corrective justice, according to which a person who, in violation of a duty, has caused harm to another party, must compensate the injured party for the amount of that harm. Judge Grunis also stressed that a rule that allows for such a conclusion would not necessarily prevent the creation of the particular risk, and that there may be more effective legal tools that can be employed to prevent the risk. Justice Grunis did recognize that in certain areas of law, the courts have begun to move away from binary decisions in which one of the litigants is fully successful while the other litigant fails completely. However, according to Judge Grunis, the answer to the question of whether there was a factual causal connection must be either yes or no: was it the negligence that caused the damage in the particular case, or was the damage caused by an act of God?

5.    Justice Grunis also discussed the well known case of Summers v. Tice [7]. In that case, two hunters fired their guns and a third hunter was injured as a result of the shooting. The court there ruled that both hunters were liable, jointly and severally, for the damages of the third hunter. Justice Grunis noted that in the case of the hunters there was a fifty percent chance that one of the hunters was the one who had caused the injury, and exactly the same chance that the other was the wrongdoer. In such a situation, the award of damages against both hunters could not be avoided. However, in the present case, no argument was made, and none proven, to the effect that there was an equal — i.e., 50% — chance that the cause of the damage was the negligence and not an act of God.

6. Regarding the “recurring distortion” test proposed by Deputy President Rivlin, Justice Grunis noted that even if this test is not fully consistent with the principle of corrective justice, it may be that when there is a group of injured parties and a consistent distortion, a limited and narrow deviation from the said corrective justice principle is justified. In any event, Justice Grunis saw no need to express a final position regarding this matter.

7.    Justice Grunis also felt that the decision rendered in the original appeal should be overturned, because recognition of proportional liability is not compatible with the accepted law with respect to the preponderance of the evidence standard. According to Justice Grunis, there is no justification for a revolutionary change in the accepted law regarding the preponderance of the evidence standard, which is based on hundreds of years of judicial experience.

8.    Finally, Justice Grunis emphasized that recognition of proportional liability in this case would have very far-reaching consequences for the development of civil law and regarding the perception of the function of the higher court in civil proceedings. He noted that the circumstances of this case are difficult, particularly in light of the fact that it involves a girl who had been born with severe disabilities, and because any decision that is rendered will have significant financial consequences. From the perspective of the highest judicial instance (and particularly with regard to a further hearing), the difficulty arises from the tension between the sense of justice concerning the specific details in the case before the court, and a recognition that the court’s decision will have consequences for the future. The development of proportional liability in this case, Justice Grunis believes, is a creative and innovative path, which is not appropriate when the court is faced with such difficulties. Thus, for example, a difficulty arises regarding the possibility that the final result would be the same whether the decision was rendered on the basis of the law, or whether it was a ruling based on a compromise. This difficulty is primarily due to the fact that by law, a compromise decision can be made only if the parties have agreed to it.[1] The adoption of the “ambiguous causation” doctrine can thus expand and enhance judicial discretion; such an outcome is undesirable, because it reduces legal certainty, encourages litigation in baseless cases, and increases the danger presented by arbitrary judicial decisions. Proof that the adoption of this doctrine will increase uncertainty can be found in the case before us now: the trial court fixed the compensation at forty percent. The appeals court reduced this amount by half and set it at twenty percent. The position taken by the judges supporting the application of a special “ambiguous causation” doctrine does not explain why one percentage is preferable to the other in this case.

9.    Furthermore, Justice Grunis noted that the acceptance of the proportional liability doctrine, i.e., a decision or a solution based on proportionality, is one step down a slippery slope and we cannot anticipate where it will lead. In practice, various attempts have been made in this Court to base decisions or solutions on proportionality outside the area of tort law causation as well. This approach is liable, in the end, to bring about a substantive change in the role of the courts, and in particular in the function of the Supreme Court as a developer and creator of law. The emphasis will be moved, completely and decisively, from the theoretical to the more concrete aspect. The problem may be more serious in the trial courts, in which hundreds of different judges serve. In hard cases, the practice of reaching decisions pursuant to the applicable law will be replaced by decisions that are essentially compromises, without the litigants having consented to the use of this approach.

10. To sum up, Judge Grunis found that the present case is difficult from various perspectives. The Court must therefore forge its path heeding Justice Oliver W. Holmes’ immortal warning:  “Hard cases make bad law.” Justice Grunis’ position is that if the doctrine of proportional liability were recognized, the result would have been exactly that against which the great American judge cautioned.

Decided, by a majority vote, not to recognize a proportional liability exception in cases of ambiguous causation, and to overturn the decision in CA 5375/02. No order was made to return compensation that had been paid to the respondents, and no order was made for additional compensation to be paid.

19 Elul, 5770.

29 August, 2010.

 

 

[1]               Justice Grunis emphasized that according to various statutory provisions, a court is authorized to issue a ruling based on a compromise only if the litigants have agreed to this option (s. 79A of the Courts Law (Consolidated Version), 5744-1984; s. 4(c) of the Compensation for Victims of Road Accidents Law, 5735-1975). 

Wallace v. Egged

Case/docket number: 
CA 3510/99
Date Decided: 
Monday, August 6, 2001
Decision Type: 
Appellate
Abstract: 

Facts: On August 30, 1995, while the appellant was waiting for a bus at an Egged bus station, the respondent no. 2 and his friends beat up the appellant.  Passersby came to the appellant’s aid but he suffered serious injuries and required hospitalization.  Respondent no. 2 was convicted in the Magistrates Court in Jerusalem of an offense according to section 380 of the Penal Law 5737-1977.  The appellant filed a lawsuit against Egged and respondent no. 2 for damages, claiming against Egged negligence and breach of a statutory duty.  The Magistrates Court summarily dismissed the appellant’s lawsuit for failure to show a claim.  The appellant is appealing this decision.

 

Held: It was not appropriate to summarily dismiss the appellant’s lawsuit without weighing the factual and legal claims and the question of liability in torts for the failure to take precautionary measures to prevent a criminal act that was committed by a third party.  In the Court’s view the fact that the occurrence of an attack was spontaneous and unprovoked does not instantly remove it from the realm of tort liability.  At this stage in the proceedings, and before the necessary determinations have been made, it was not appropriate to determine that the incident at the Central Bus Station was unforeseeable, and it would not be appropriate to say that as a question of legal policy, the respondent is exempt from undertaking any precautionary measures in order to prevent such criminal activity.  Rather, the lower court needs to examine the specific circumstances of the case.  The Court also determined that it was not appropriate for the District Court at this stage in the proceedings to make the determination that even if there was negligent conduct on Egged’s part, in failure to place a security person, there was no causal connection between the negligent conduct and the harm to the appellant.  Therefore the appeal was granted, the decision of the lower court was overturned and the case was returned to the District Court to be determined on the merits.

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

CA 3510/99

Reuven Wallace

v

1. ‘EGGED’ Israel Transport Cooperation Society

2. Fassel Samuel

 

The Supreme Court sitting as the Court of Civil Appeals

[6 August 2001]

Before President A. Barak and Justices J. Türkel, E. Rivlin

 

Appeal on the judgment of the Jerusalem District Court (Justice D. Cheshin) dated 13 April 1999 in CC 1294/97.

 

Facts: On August 30, 1995, while the appellant was waiting for a bus at an Egged bus station, the respondent no. 2 and his friends beat up the appellant.  Passersby came to the appellant’s aid but he suffered serious injuries and required hospitalization.  Respondent no. 2 was convicted in the Magistrates Court in Jerusalem of an offense according to section 380 of the Penal Law 5737-1977.  The appellant filed a lawsuit against Egged and respondent no. 2 for damages, claiming against Egged negligence and breach of a statutory duty.  The Magistrates Court summarily dismissed the appellant’s lawsuit for failure to show a claim.  The appellant is appealing this decision.

 

Held: It was not appropriate to summarily dismiss the appellant’s lawsuit without weighing the factual and legal claims and the question of liability in torts for the failure to take precautionary measures to prevent a criminal act that was committed by a third party.  In the Court’s view the fact that the occurrence of an attack was spontaneous and unprovoked does not instantly remove it from the realm of tort liability.  At this stage in the proceedings, and before the necessary determinations have been made, it was not appropriate to determine that the incident at the Central Bus Station was unforeseeable, and it would not be appropriate to say that as a question of legal policy, the respondent is exempt from undertaking any precautionary measures in order to prevent such criminal activity.  Rather, the lower court needs to examine the specific circumstances of the case.  The Court also determined that it was not appropriate for the District Court at this stage in the proceedings to make the determination that even if there was negligent conduct on Egged’s part, in failure to place a security person, there was no causal connection between the negligent conduct and the harm to the appellant.  Therefore the appeal was granted, the decision of the lower court was overturned and the case was returned to the District Court to be determined on the merits.

 

Legislation cited:

Penal Law, 5737-1977, s. 380

Torts Ordinance [New Version] s. 35.

 

Regulations cited:

Civil Procedure Regulations, 5744-1984 – regulation 100(1).

 

Israeli Supreme Court cases cited:

[1]          CA 343/74 Grubner v. City of Haifa IsrSC 30(1) 141.

[2]          CA 76/86 Feinstein v. H.S. Hotels Ltd.  IsrSC 43(3) 124.

[3]          CA 755/76 ‘Mishmar’ Guarding and Security Services Ltd. IsrSC 33(2) 656.

[4]          CA 350/77 Kitan v. Weiss IsrSC 33(2) 785.

[5]          CA 796/80 Ohana v. Avraham IsrSC 37(4) 337.

[6]          CA 5355/97 State of Israel v. Madah (unreported).

[7]          CA 576/81 Ben Shimon v. Bardah IsrSC 38(3) 1.

[8]          CA 500/82 Etzioni v. Ezkar IsrSC 40(2) 733.

[9]          CA 126/85 R.G.M Mart v. State of Israel IsrSC 44(4) 272.

[10]        CA 8/79 Goldschmidt v. Arad IsrSC 35(3) 399.

                [11]        CA 145/80 Vaknin v. Bet Shemesh Local Council IsrSC 37(1) 113.

                [12]        CA 371/90 Subachi v. Israel Train IsrSC 47(3) 345.

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

                [14]        CA 704/71 Agabrya v. Hameiri IsrSC 26(1) 743.

 

American cases cited:

[15]        Brogan Cadillac, Etc. v. Central Jersey Bk. 443 A. 2d 1108 (1981).

[16]        Bradley Center, Inc. v. Wessner 296 S.E. 2d 693 (1982).

[17]        Tarasoff v. Regents of University of California 17 Cal. 3d 425 (1976).

[18]        Kline v. 1500 Massachusetts Avenue Apartment Corp. 439 F. 2d 477 (1970).

[19]        Goldberg v. Housing Auth. of Newark 186 A. 2d 291 (1962).

[20]        Viands v. Safeway Stores 107 A. 2d 118 (1954).

[21]        Cornpropst v. Sloan 528 S.W. 2d 188 (1975).

[22]        Carey v. New Yorker of Worcester, Inc. 245 N.E. 2d 420 (1969).

[23]        Atamian v. Supermarkets General Corp. 369 A. 2d 38 (1976).

[24]        Isaacs v. Huntington Memorial Hosp. 695 P. 2d 653 (1985).

[25]        Sharpe v. Peter Pan Bus Lines, Inc. 519 N.E. 2d 1341 (1988).

[26]        Quigley v. Wilson Line of Massachusetts 154 N.E. 2d 77 (1958).

[27]        Feld v. Merriam 485 A. 2d 742 (1984).

[28]        Burgess v. Chicopee Savings Bank 145 N.E. 2d 688 (1957).

 

Israeli books cited:

[29]        Y. Sussman, Civil Processes (7th Edition, S. Levin ed., 1995)

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

[31]        A. Barak, ‘Liability for the Actions of Others’, in G. Tedeschi ed., The Law of Torts  –  the General Doctrine of Torts, 2nd ed., 1977, 435.

 

Israeli articles cited:

[32]        I. Gilead, ‘On the Elements of the Tort of Negligence in Israeli Tort Law’, Iyunei Mishpat 14 (1989) 319.

[33]        I. Englard, ‘The Contribution of Case Law to Developments in Tort Law – Its Self Image and Reality’, Iyunei Mishpat 11 (1986-1987) 67.

 

Foreign books cited:

[34]        W.L. Prosser, W.P. Keeton On the Law of Torts (St. Paul, 5th ed., 1984).

 

Foreign articles cited:

[35]        W.M. Sanders ‘Between Bystander and Insurer: Locating the Duty of the Georgia Landowner to Safeguard Against Third-party Criminal Attacks on the Premises’ 15 Ga. St. U.L. Rev. (1999) 1099.

[36]        M.J. Bazyler ‘The Duty to Provide Adequate Protection: Landowners’ Liability for Failure to Protect Patrons from Criminal Attack’ 21 Ariz. L. Rev. (1979) 727.

[37]        W.J. Flanagan ‘Negligent Security: Is Peter Pan A Merchant’s Nightmare? Sharpe v. Peter Pan Bus Lines, Inc.’ 24 N. Eng. L. Rev. (1990) 1193.

[38]        R. Cooter, A. Porat ‘Does Risk to Oneself Increase the Care Owed to Others? Law and Economics in Conflict’ 29 The Journal of Legal Studies (2000) 19.

 

Other:

[39]        Restatement 2d, Torts.

 

For the appellant – Moshe Inbar.

For the respondent 1 – A. Novik.

For the respondent 2 – Ron Weinstock

 

JUDGMENT

 

Justice E. Rivlin

1.            The appellant Reuven Wallace, objects to the decision of the District Court in Jerusalem (Justice D. Cheshin), which summarily dismissed his complaint against the respondent, ‘EGGED’ Israel Transport Cooperation Society (hereinafter: ‘Egged’) for failure to state a claim.

In coming to decide on Egged’s petition to summarily dismiss the complaint filed against it by the appellant the District Court, as is required,  presumed that all the factual claims made in the complaint had been adequately proven.  A similar presumption will, thus, stand at the basis of this judgment.

The Facts

2.            On August 30, 1995, in the early morning hours, the appellant, a g-d-fearing man set foot for Egged’s central bus station in Jerusalem on his way to his place of work as the supervisor for observance of Jewish dietary laws at the slaughterhouse ‘Marbek’ in Ashkelon.  While he was waiting for his bus, the respondent no. 2 and his friends began to gang up on him.  They threw his hat down, kicked him in the stomach and threw him to the ground.  Passersby who were in the area came to the assistance of the appellant, and the respondent no. 2 and his friends ran away.

The appellant was severely injured in his hand and in his shoulder and required hospitalization at the hospital where his hand was operated on.

Respondent no. 2 was tried in a criminal trial in the Magistrates Court in Jerusalem and convicted of an offense according to section 380 of the Penal Law 5737-1977 which deals with an assault which causes real injury.

The appellant filed a complaint against Egged and respondent no. 2 for damages, and this – according to the appellant – for Egged’s negligent conduct and for its breach of a statutory duty.

The District Court’s decision

3.            The District Court accepted Egged’s petition and ordered the summary dismissal of the complaint against it, for two reasons: first, due to an absence of a concrete duty of care under the circumstances; second, due to the absence of a causal connection between the omission attributed to Egged and the appellant’s injury.

The learned judge presumed that there is a conceptual duty of care imposed on Egged toward those who come to the Central Bus Station.  This duty, so it determined, is based on the role of Egged as a national carrier which possesses property within which lively public activity takes place, and that therefore contains the potential for violence.  In such a situation, the learned judge determined, there exists both a ‘technical’ foreseeability (meaning, awareness of the risk) and ‘normative’ foreseeability, as the social interests as to the public peace and public order impose a duty on those who manage property of this type to take care of reining in the potential violence and ensuring to a reasonable degree the safety of the visitors.  However, so determined the District Court, under the circumstances a concrete duty of care toward the appellant did not arise for Egged.  In mentioning the judgment of the President (then Justice) Shamgar in CA 343/74 Grubner v. City of Haifa [1] the learned judge determined that reasonable action was required of Egged to safeguard the visitors to the station – but not action that would ensure absolute protection.  In this case – the Court ruled – the attack that the respondent no. 2 and his accomplices attacked the appellant was not foreseeable, as it came about without any provocation by the victim.

This and more was determined by the lower court: even if Egged was negligent in its conduct as it did not place security personnel, there was no causal connection between its negligent conduct and the injury.  Even if a security person was in the area, so presumed the Court, he would not have had the opportunity to assist the appellant, and it is very doubtful whether his very presence would have been sufficient to deter the attackers in advance.  It is a fact, so noted the learned judge, that the presence of passersby in the area did not deter the attacker.

As for the claim of the appellant as to Egged’s duty to filter the entry of thugs to the station and to monitor the conduct of the crowd of visitors, the District Court found that such a demand would obligate Egged with actions which would amount to policing actions and would infringe on basic human rights, such as freedom of movement, the principle of equality and human dignity.

In the security instructions put out by the Israeli Police, which constitute part of the license to manage the business of the station, the learned judge also did not find support for the appellant’s stance as to the question of the existence of a concrete duty of care and on the question of the existence of a causal connection.

The lower court also dismissed the claim that Egged breached a statutory duty, for the reason that the statutory provisions on which the appellant wished to base his claim did not appear in the complaint.  As to this last matter there is not an appeal before us.

The objections in the appeal

4.            In the appeal the appellant turned to the instructions of the Israel Police which, as stated, constitute part of the terms of the license that was granted to Egged.  By power of these instructions Egged has the duty to appoint someone to be responsible for security who will fulfil tasks related to prevention of hostile acts and guarding the business and conducting sweeps – all as per the security procedures.  From these instructions the appellant wishes to infer the existence of a duty imposed upon Egged to take the necessary steps to maintain the security of the visitors to the bus station.

The appellant is of the view that it is not possible to distinguish between different types of violence, and that Egged can and should have foreseen the violent incident the subject of the appeal, meaning unprovoked attack.  According to the appellant, Egged, as a service provider to the public, is responsible for the safety of the public invited by it to the station.

5.            As to the causal connection the appellant distinguishes between the consequence of the presence of just any passersby at the station and the significance of placing armed security people at the place.  Only the latter – so holds the appellant – may, with their presence and appearance, create a deterrence to acts of violence.  Indeed, the appellant agrees, it is not possible to provide absolute security to the riding public, but the duty of Egged, according to the appellant’s approach, is to place proper security.

The appellant disagrees with the determination of the lower court, according to which the security of the station infringes on the freedom of movement and the principle of equality.  Placing security people and maintaining checks on the entrance of visitors, is, according the appellant’s approach, an accepted practice in public places, and it constitutes a proper balance between the right of the individual to freedom of movement and the right of the individual to bodily wholeness.

The appeal, it is my view, is to be granted.

Summary dismissal

6.            The civil procedure provisions require the court to take extra care before deciding to summarily dismiss a lawsuit.  Regulation 100(1) of the Civil Procedure Regulations 5734-1984 authorizes the court to order dismissal of a lawsuit which does not show a claim.  The court will make use of its authority according to this regulation only when it is ‘. . . clear and beyond any doubt, that on the basis of the facts claimed the plaintiff cannot be successful in obtaining the remedy he seeks. . .’ (Y. Sussman, Civil Processes [29], at p. 384).  The Court, in coming to dismiss the lawsuit for lack of a claim, will therefore take extra care, and a remote possibility that the plaintiff will succeed in obtaining the remedy sought by him is sufficient for the court to avoid summarily dismissing the claim (CA 76/86 Feinstein v. H.S. Hotels Ltd.  [2]) With these before us – we will examine the question of the existence – in theory– of the claim at the basis of the lawsuit here.

The tort of negligence and the duty to protect from a criminal act

7.            The question which requires an answer here – although a theoretical one only – is not easy.  It is a question of liability that arises in torts for the failure of the defendant to take precautionary measures to prevent a criminal act that was committed by a third party against the plaintiff.  Professor I. Englard already explained the ‘borderline nature’ of this question in tort law.

‘...the specific question to what extent a person is liable for his failure to prevent the commission of a crime by another touches upon the frontiers of tort liability. The answer to this borderline category of cases, though formulated in terms of traditional concepts, often induces courts to take an open stand on the foundations of modern tort law’ (I. Englard, The Philosophy of Tort Law [30], at p. 175).

The matter was discussed in the case law of this court, primarily in the limited context of entrusting a weapon in the hands of a person who used it later to commit a crime.  In those cases a difficulty arose in establishing the existence of the causal connection between breaching the duty and the injury.  Thus, for example, in the case of CA 755/76 ‘Mishmar’ Guarding and Security Services Ltd.  [3] at p. 672 Justice Asher determined that:

‘There is negligent conduct in providing a weapon to a person against instructions, but there cannot be foreseeability of murder unless there was concrete knowledge of such a risk, and it matters not according to which of the three tests established in the case law it was learned. . .’

In CA 350/77 Kitan v. Weiss [4] the question was asked whether a corporation is liable in torts for the fact that an employee who worked for it as a guard took a handgun that he obtained through his work and murdered his attorney.  The President (then Justice) Shamgar determined that the deficiencies in the managing of the corporation – and they are lack of continuous and efficient supervision of the handgun, and the failure to take any steps consequent to the disappearance of the handgun for some time, about a week prior to the murder – constitute a breach of the duty of care imposed on the corporation by authority of section 35 of the Torts Ordinance [New Version].  As to the question of the legal causal connection between the negligent conduct of the corporation and the act of murder, President Shamgar determined, at pp. 801-802:

‘. . .  A criminal act committed by another which constitutes an intervening third party, will not be considered as the determining cause of the injury which frees the first negligent entity of liability in torts, if foreseeability of the malicious act is required of the first negligent party as one of the possible outcomes of the act or omission which constitute the fault of the first negligent entity.’

However, in that same case it was decided that legal causation did not exist, as the corporation was not required to foresee that a person who was authorized by the police as fit to carry a weapon, who never was involved in a crime and who served as a guard for many years, would be capable of murdering his attorney over a dispute of which the corporation knew nothing.

In a similar vein Justice Bejski noted in CA 796/80 Ohana v. Avraham [5] that a wilful act of a second tortfeasor does not in all cases break the causal connection of the first person at fault.  However, in the circumstances of that case Justice Bejski determined that:

‘The act of the respondent in throwing a grenade into a club crowded with people is so unusual in its character and so appalling in its implementation and consequences, that it certainly cannot be explained by common sense: and in terms of foreseeability and predictability, it appears that only if one of the two were to be argued and proven, would it be possible to attribute a duty of foreseeability: either that the armed forces knew that in the heart of the respondent thoughts of murder and revenge is nesting, or that there was a reasonable suspicion or any suspicion or possibility of knowing, that the respondent suffers from mental illness, to the point where he does not have control of his actions or will.’ (Ibid, at 345)

And recently, it was said by Justice Or, in CA 5355/97 State of Israel v. Madah [6] that:

‘As long as the police did not have such information, according to which a special danger exists of the use of weapons by Udah in a dispute with others, it does not seem reasonable to prevent a police officer in the Israel police from possessing a weapon, only for the reason that there is a theoretical possibility that he would make inappropriate use of it.  Indeed, it can be said, that Udah’s superiors had no basis to suspect or foresee that Udah would use the sub-machine gun to resolve a dispute with his neighbours or that he would make other inappropriate use of it.  In these circumstances, and act of murder or intentional killing by Udah was not within the range of reasonable foreseeability for Udah’s superiors in the police.’

On the other hand, in another case, it was determined that a person who holds guns and bullets in a youth center needs to foresee that youth that come to the center will seek to take a weapon and make prohibited use of it.  Therefore – so it was decided – that person was required to undertake reasonable precautionary measures in order to prevent this.  The negligent conduct of the appellant in that case was expressed in the failure to properly close the window, in installing a door that is easy to break into and lack of supervision and guarding.  It was further decided, that the foreseeable intervention of a third party in between the act of negligent conduct and the injury, is not sufficient to break the causal connection. (CA 576/81 Ben Shimon v. Bardah [7]).

The question whether a person must take precautionary measures with property in his control, and which is directed at preventing damage from the actions of criminals, was dealt with as to landlord-tenant relations in CA 500/82 Etzioni v. Ezkar [8].  The Court did not see a difference in principle between the case in which a tenant was injured due to the unsafe physical condition of the property and the case where property damage or bodily harm was caused to the tenant when he was in the property that was in the control of the landlord, as a result of criminal behavior of a third party, as long as the behavior was foreseeable, and it was possible to undertake measures to prevent it.  As to this matter the Court, President (then Justice) Barak, said that:

‘. . . It is not new that the tortfeasor should foresee the criminal conduct of a third party.  Such a duty has been recognized in the past both as to negligent conduct, and as to reckless conduct and as to malicious conduct of a third party.  Indeed, more than once, Tort law imposes a duty on the tortfeasor to foresee intentional and criminal behavior of a third party – conduct which causes damage. . .’  (Ibid [8], at pp. 740-741).

In this context it is worth mentioning CA 126/85 R.G.M Mart v. State of Israel [9], where the duty of the police to compensate a factory that was connected to police dispatch with an alarm system, for negligent conduct that brought about the completion of a break-in to the factory, was discussed and decided.

8.            The issue of tort liability for failure to undertake precautionary measures to prevent criminal acts by a third party has also been discussed in case law in the United States.  The fundamental approach which is reflected in the case law there is that the commission of a criminal act by a third party is not, as a rule, within reasonable foreseeability, and therefore a person is not liable in torts for the omission of not protecting another person from the criminal act of a third party.  This is so, unless special circumstances exist.  As to the rule and the exception to it the American court explained in one of the cases in determining:

‘It would be unjust to require one to anticipate that a crime will be committed unless there has been a warning or unless a previous criminal act occurred in the same premises’ (Brogan Cadillac, Etc. v. Central Jersey Bk. (1981) [15], at p. 1110).

As arises from these words, the rule as to lack of liability has exceptions.  Thus, the American court recognized the duty of the defendant to undertake precautionary measures against criminal acts committed by a third party due to the nature of the relationship between the plaintiff and the defendant or the defendant and that same third party, for the fact that the defendant with his conduct increased the risk of the commission of a criminal act, or for the control and supervision of the defendant over the one committing the crime or the location of its commission.  In the framework of the first exception the court recognized various types of relationships as giving rise to a duty to undertake measures to prevent crime, including relationships between hotel owner and guest; school and students; landlord and his tenants; a business invitor and a business guest; employer and employee.  (See W.L. Prosser, W.P. Keeton On the Law of Torts [34], at pp. 201-202).

The primary tests which served the courts there when they came to decide the question whether the criminal act that was committed against the plaintiff by a third party was within the reasonable foreseeability of the defendant is twofold:  the first is the test of knowledge of the approaching crime; and the second is the test of knowledge of similar incidents that occurred in the past.  In several cases a broader test was established, which examines the totality of the circumstances of the situation.

In one of the cases the liability in torts of a private psychiatric hospital for a murder committed by a patient was examined.  The Supreme Court of Georgia determined that it was the hospital’s duty to act with reasonable caution in supervising the patient who was hospitalized at the hospital.  Once the duty was breached, and as a result the patient murdered his wife, the hospital was liable in torts for the death of the woman, since the hospital knew of the possibility that the patient would cause physical harm to his wife, if he had the possibility of doing so.  (Bradley Center, Inc. v. Wessner (1982) [16]; Tarasoff v. Regents of University of California (1976) [17]; See also Englard supra [30], at pp. 176-180).

Another issue that was dealt with in American case law relates to the duty of care that a landowner owes to his tenants, to undertake precautionary measures against thefts and attacks which take place on his property (see a broad discussion in W.M. Sanders ‘Between Bystander and Insurer: Locating the Duty of the Georgia Landowner to Safeguard Against Third-party Criminal Attacks on the Premises’ [35]).

In the case of Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970) [18] the federal court determined that the risk that one of the tenants in the defendant’s apartment buildings would fall victim to assault and robbery committed by a third party was foreseeable by the respondent, in particular in light of similar criminal acts that occurred previously.  It was further determined there, that the prevention or reduction of the risk – which was shared by all the tenants – was almost exclusively in the hands of the defendant as the one with control of the area.  The court there was resolved in its view as to the division of responsibility between the public policing entities and the owners of the property:

‘Not only as between landlord and tenant is the landlord best equipped to guard against the predictable risk of intruders, but even as between landlord and the police power of government, the landlord is in the best position to take the necessary protective measures. Municipal police cannot patrol the entryways and the hallways, the garages and the basements of private multiple unit apartment dwellings. They are neither equipped, manned, nor empowered to do so... We note that in the fight against crime the police are not expected to do it all; every segment of society has obligations to aid in law enforcement and to minimize the opportunities for crime’ (at p. 484).

Compare Goldberg v. Housing Auth. of Newark (1962) [19].

Similar considerations were weighed as to the duty of a business owner to its customers to provide them with protection while in the business (M.J. Bazyler ‘The Duty to Provide Adequate Protection: Landowners’ Liability for Failure to Protect Patrons from Criminal Attack’ [36])  In this context the following considerations were weighed: whether the business foresaw or should have foreseen the possibility of the impending occurrence of the criminal incident; whether similar incidents occurred in the past and whether the business in terms of its nature or its location creates convenient conditions for committing criminal acts.  (See Viands v. Safeway Stores (1954) [20]; Cornpropst v. Sloan (1975) [21]; Carey v. New Yorker of Worcester, Inc. (1969) [22]; Atamian v. Supermarkets General Corp. (1976) [23]).  As stated, in several cases the courts in the United States made the test for determining the foreseeability of the criminal incident more flexible and determined that a decision in this matter is to be determined by way of examination of the totality of circumstances in each and every case.  (Isaacs v. Huntington Memorial Hosp. (1985) [24]).

It is also worth quoting section 344 of the Restatement 2d, Torts [39] in this context.

‘A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it’.

10.          The question of liability in torts of a public carrier who holds property that is filled with people to a visitor who is injured bodily by a criminal act committed against him by a third party was discussed in the Massachusetts Supreme Court in a matter similar to ours in the case of Sharpe v. Peter Pan Bus Lines, Inc. (1988) [25].  In that case a sixteen year old girl was attacked while waiting innocently for a bus at a crowded station when two of her friends were sitting next to her – without any provocation on her part and without warning – and was stabbed to death in her back by a stranger – a person with a history of mental illnesses.  The attacker was convicted of second degree murder.  A civil suit was filed against the company that operates the bus lines and against the station where the attack occurred due to their negligent conduct in failure to undertake measures to ensure the safety of the passengers.  It was proven in the trial, that even though the station was in an area in which much criminal activity takes place, the defendants had no knowledge of the impending offense, nor of similar incidents that occurred in the station in the past.  Police patrols took place in the station on the hour by the local police, which was located close to the bus station.

Despite this it was determined that the defendants were negligent in not providing adequate protection to visitors to the station and this negligent conduct was the reason for the death of the girl.  The Court was of the view that the defendants are to be found liable in torts because they did not employ a uniformed security person despite the widespread crime in the vicinity of the station.  The presence of such a security guard – so it was determined – even if it would not have prevented the tragic outcome from the moment the attack was in process – it was reasonable to presume that it would have deterred the attacker in advance.

The Court relied there, inter alia, on the case in the matter of Quigley v. Wilson Line of Massachusetts (1958) [26], where it was decided that a public carrier owes its passengers a duty of care at a particularly high degree, and is to foresee acts of violence by other passengers, or by strangers, and prevent them.

In the Sharpe case [25] liability was imposed on the carrier as a business owner invitor for a spontaneous illogical criminal act against the invitee, without the defendant being aware of the possibility of the approaching occurrence of the criminal act, and was not aware of similar occurrences that took place in that place in the past (for a discussion of the Sharpe case [25] and its significance see W.J. Flanagan ‘Negligent Security: Is Peter Pan A Merchant’s Nightmare? Sharpe v. Peter Pan Bus Lines, Inc.’ [37]).

The general rule: when we come to examine the question of the imposition of liability in torts for the failure of the defendant to protect from a criminal act committed by a third party against the plaintiff, we turn to examining the question of the existence of each of the elements of the tort of negligence.  At the center of the examination is the question of the foreseeability of the criminal incident – its nature and scope.  This question may come up both at the stage of checking for the duty and at the stage of checking for the existence of the legal causal connection between the breach of the duty and the harmful outcome.

Survey of the case law of the courts, in this country and in the United States reveals a tendency to impose tort liability in those cases where there was a special relationship among those involved in the incident (plaintiff-defendant or defendant-third party), and in those cases where the criminal act was within the bounds of a foreseeable risk that was created by the behavior of the defendant.  (See Englard supra [30] at p. 176).

From there to here

11.          The lower court determined, as stated, that the defendant in this appeal owed a conceptual duty of care toward those coming to the station.  The foundation of this duty – so it determined – ’stems from the role of Egged as a public carrier which holds lands within which vibrant public activity takes place’.  (As to the responsibility of a landowner to visitors on his lands see also CA 8/79 Goldschmidt v. Arad [10]; CA 145/80 Vaknin v. Bet Shemesh Local Council [11] (hereinafter: ‘the Vaknin case’)).

However, as is known, a conceptual duty of care is not sufficient.  Once it is determined that a conceptual duty of care exists as to a certain type of tortfeasor toward a certain type of injured parties, it is to be examined whether there is also a concrete duty of care, meaning ‘. . . whether there is a concrete duty of care between the specific tortfeasor and the specific injured party, in the special circumstances of the case for the specific damage that occurred.’ (The Vaknin case [11] at p. 125).

This duty – so it was determined in the District Court – did not exist in the circumstances here, as an attack unprovoked by the victim was not foreseeable.  This conclusion had no place at this stage of the determination of the lawsuit.  It is not to be said that the complaint – on its face – does not reveal a chance to obtain the remedy sought.  As we have seen the court is not deterred, in the appropriate cases, from imposing liability for an omission rooted in the failure to take reasonable precautionary measures against intentional criminal activity committed by third parties.  The station is held by Egged and could serve as a widespread and fruitful area for criminal activity.  (As to open public places as a comfortable area for criminal activity see also Feld v. Merriam (1984) [27]).

And indeed in his decision the learned judge in the lower court determined that:

‘As is the way of crowded places they are likely to become a convenient area for a range of criminal activities, which constitute a weighty element in creating the potential for the occurrence of acts of violence’. (Emphasis mine-E.R.).

In the episode before us a criminal incident in fact took place.  Indeed, the attack occurred without any provocation on the part of the appellant, however, this is, more often than once, the way of criminal activity, which is done toward an innocent and law-abiding citizen who in his actions did not contribute a thing to the occurrence of the criminal incident.  This is the way of thugs.  Even a criminal act which is, on its own, sudden and quick, may come within the range of reasonable foreseeability of the business defendant who holds the lands on which the act occurred – and this, for the repetition of similar incidents in the past, for the suspicious behavior of the criminal prior to committing the act, and even – based on a broader approach – for the location of the commission being in an area that is prone to criminal activity, and also in light of the totality of the circumstances of the incident.

13.          Criminal acts may occur – and indeed occur – in almost every place and time, and therefore in a certain sense they are always ‘foreseeable’ in the technical sense.  The American court explained this in one of the cases:

‘Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide ‘police’ protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner’ (Goldberg [19], at p. 293).

However, the duty of care also includes, in addition to the requirement of ‘technical’ foreseeability, a requirement for ‘normative’ foreseeability.  One is therefore to ‘sift’ and choose from a range of risks that exist in daily life those unreasonable risks which should be foreseen, and for which liability is imposed.  This ‘sifting’ is done during the course of the examination of the concrete duty of care (and to be more precise – its normative aspect).  President Barak explained this in the Vaknin case [11] at pp. 126-127.

‘Daily life is full of risks, which at times materialize and cause damage, without the creators of the risks bearing liability in torts.  The reason for this is, that those risks are natural and regular to acceptable human activity, and for them it was determined as a matter of legal policy that a concrete duty of care does not materialize.  The risks are reasonable, and proper societal life takes their existence into account. . .   the unreasonable risk, for which the concrete duty of care is imposed is that risk, which society views with greater severity, in a manner that it requires that reasonable precautionary measures be taken to prevent it.’  (The Vaknin matter [11], Ibid.).

And thus determined Justice M. Cheshin:

‘Every injury has a name in medicine, but not every injury has a name of the one responsible by law.  Not for every injury that can be foreseen (in a theoretical manner), does the law impose normative responsibility...’ [CA 371/90 Subachi v. Israel Train [12] at p. 349].

As for the responsibility of one who holds lands for the harmful act of a third party it has already been said that the duty of care of a landholder as to a visitor to land in his possession ‘. . .  is not limited to the duty of the holder no to cause harm to the visitor but extends also to the anticipated activities of a given person (another invitee, or licensee or trespasser).’ (A. Barak, ‘Liability for the Actions of Others’, in G. Tedeschi ed., The Law of Torts  –  the General Doctrine of Torts [31], at p. 465; emphases mine E.R).  And the meaning is not that a duty of care never arises in the case of a regular risk, or that one is to release the tortfeasor, instantly and in every case, from liability, but it is to be said that at times negligent conduct does not occur in a concrete case because reasonable precautionary measures were undertaken taking the risk into account.

In CA 915/91 State of Israel v. Levi (hereinafter: ‘the Levi case’ [13]) at p. 67 the Court lists different circumstances in which one will hesitate to derive the existence of ‘proximity’ from the existence of foreseeability, and they include: when it is a matter of an omission of the defendant rather than an action, and when the injury was caused by a third party, and not directly by the defendant.  However, even the existence of these circumstances does not suffice to instantly rule out the existence of a duty of care.  ‘. . .  in such a case there will be a need for more careful examination of the existence of proximity between the parties.’  (Ibid. at p. 67).

14.          This careful examination will take place in light of the tests that we discussed, including: whether the defendant was aware of the impending occurrence of the criminal act (in this context one it to examine not only the spontaneity and the suddenness of the criminal act itself, but also the behavior of the criminal prior to the act); whether in the past similar incidents occurred at the place of the incident; whether criminal acts are common in that area; whether the criminal act that occurred is a common event or exceptional in its character; whether the defendant had the control and supervision over the criminal or the place of the occurrence; whether, and taking into consideration the substance of the relationship between the parties, the plaintiff could reasonably rely on the fact that the defendant would undertake reasonable precautionary measures to protect his safety from criminals (as to the reliance factor compare the Levi matter [13], at p. 68); whether it is possible to learn of the existence of the duty from the totality of the other circumstances of the case.

Once these have all been weighed in the appropriate circumstances considerations of public policy will also be examined, for which the court may refrain from determining that there exists a duty of care between the parties. (The Levi matter [13], at p. 69-70).

15.          When we take all these into account it will be necessary to make determinations as to several factual questions before it will be possible to decide on the question of Egged’s liability toward the appellant.  The court may refer to the question of the frequency of criminal acts of the type under discussion at the bus station and the question as to how widespread purposeless wandering of groups of thugs at such early morning hours is in the stations and its environs.  The question of the behavior of the defendant prior to the attack may also be relevant.  (See Burgess v. Chicopee Savings Bank (1957) [28].  It is possible that it will be necessary to examine what the relationship is between the actions of the police to prevent criminal acts in the area of the bus station and Egged’s actions in this matter, and so too the question of what the social and economic ramifications are of Egged not taking precautionary measures and the ramifications are of in fact imposing liability in such a situation.  These questions–and others – are worthy of deliberation during the course of the trial.  In their light it will be possible to make a determination whether the risk of attack without prior provocation at the Central Bus Station is a reasonable risk, which is to be accepted as an integral part of said activity, or whether it is a risk, ‘. . . which society views with a heightened sense of severity, in a manner that it requires that reasonable precautionary measures be taken to prevent it.’ (The Vaknin matter [11] at p. 127).

At this stage in the proceedings, and before said questions have been decided, it was not appropriate to determine that an incident of a sudden ganging up by criminals on innocent passengers waiting at the Central Bus Station was (technically) unforeseeable, and it would not be appropriate to say that as a question of legal policy, the respondent is exempt from undertaking any precautionary measures to prevent such criminal activity.

16.          There is in the determination on the question of the duty of care – as to both of its aspects, the concrete and the conceptual – an aspect of creation of a liability rule in torts.  Therefore, in fact, there is a broadening or narrowing of the boundaries of the liability in torts (I. Gilead, ‘On the Elements of the Tort of Negligence in Israeli Tort Law’ [32] at pp. 337-338; I. Englard, ‘The Contribution of Case Law to Developments in Tort Law – Its Self Image and Reality’ [33], at p. 76]. Although it is proper that tort liability for failure to undertake measures to prevent crime should be applied uniformly, in my view the very fact that the occurrence of a specific attack incident was spontaneous and without advance provocation does not instantly remove it from the realm of tort liability.  The specific circumstances of the case are to be examined according to the tests delineated above, and with the presumption that a duty of care exists, it is to be further examined whether a duty was breached and whether there exists a factual and legal causal connection between the negligent conduct and the injury that was caused to the plaintiff.

17.          Moreover, even if the conditions established in Egged’s business license are not sufficient to impose on it a duty to also ensure security from criminal activity in the area of station, and even if the entire purpose of the security instructions of the Israel Police is to prevent hostile acts – there is still no doubt that these instructions reveal the control and supervision of Egged over what goes on in the area of the station, as well as the means at its disposal to ensure the safety of the visitors at the station.  It is possible that they can serve as an indication of the level of conduct required of the landowner or the reasonable business owner.  The preventative costs for Egged ostensibly seem smaller than the expectation of the expected damage, if one takes into account the fact that in any case Egged must, according to the terms of the business license, maintain security and guarding arrangements, and the fact that these arrangements are also intended to prevent damage to its own property.  This damage is added to the severity of damage which is weighed against the costs of prevention.

However these considerations belong, as stated, at the stage of examination of the question whether Egged breached the duty of care imposed on it.  At this stage we are only dealing with the question whether there was a concrete duty of care imposed on Egged.  As to this matter, as stated, it is not to be determined already at this preliminary stage that the said incident was so unusual, that it is proper to remove it from the realm of required foreseeability, to the extent that Egged is not to be required to take any precautionary measures to prevent it. (R. Cooter, A. Porat ‘Does Risk to Oneself Increase the Care Owed to Others? Law and Economics in Conflict’ [38]).

The District Court rightly noted that absolute protection of the safety of visitors to the bus station is not possible.  Indeed, it is not possible and not reasonable to demand from Egged that it prevent every criminal act that takes place at the station.  As in the words of President Barak in the Vaknin matter [11] at p. 131:

‘A tortfeasor, who owes the injured party a concrete duty of care, is not liable to him in every case, in which injury was caused to the injured party due to the behavior of the tortfeasor . . .  the question is not what is the measure that prevents the injury in the physical sense, but the question is what is the measure that is to be demanded to be undertaken in the circumstances of the case.  The court must balance between the interest of the individual injured party for his personal security, and the interest of the tortfeasor for freedom of movement, and all this against the background of the public interest in continuation or cessation of that activity.  The court must consider the danger and its extent.  It must consider the social importance of the activity.  It must weigh the means necessary to prevent it. . .’ (Emphases mine – E.R.).

The Causal Connection

18.          The lower court also based its decision on the determination that even if there was negligent conduct on Egged’s part – in not placing a security person – then there is no causal connection between the negligent conduct and the harm to the appellant.  This determination was not appropriate at this stage.

The question of the causal connection and the question of the remoteness of the harm where a third party intervenes in the chain of causation with an independent, intentional criminal act indeed are not easy.  But it was not appropriate to decide them in the negative at this stage.  A criminal act committed by another, who is within the realm of an intervening third party, will not be considered as a determinative cause for the harm which relieves the first negligent party from tort liability, where the criminal act was foreseeable, as one of the possible outcomes of the original negligent behavior.  I. Englard explained this.

‘...a deliberate wrongful intervention of a third party was not to be considered too remote an event, as long as it could be considered a foreseeable risk created by the conduct of the defendant. However, in view of the fact that foreseeability is not an objective, empirical test, but rather a normative notion – referring to what a person ‘ought to foresee’ – the imposition of liability is the result of a judicial policy decision’ (Englard supra [30], at p. 176).

(See also CA 704/71 Agabrya v. Hameiri [14])

In this episode it is not to be determined already now that the action of the respondent no. 2 was ‘. . .  so uncommon in its character and so appalling in its implementation and outcomes, that according to common sense it certainly cannot be explained.’ (CA 796/80 [5] supra at p. 345).

19.          The court assumed that even if a security person were in the area, he would not have had the chance to assist the appellant, and it was very doubtful whether his presence would have deterred the attackers in advance.  The fact is, so noted the learned judge, that the presence of passersby in the area did not deter the attacker.  In this matter I accept the claim of the appellant that in terms of the deterrence effect the presence of citizen passersby is not like the presence of a security person.  The presence of an armed and uniformed security person certainly might deter criminals from purposeless ganging up on innocent citizens, as it can turn the criminal act into a ‘high risk behavior’ (Bazyler, supra, [36], at p. 733).  In any event, as said, the premise that the presence of a security person would have prevented the damaging outcome is not to be ruled out, already at this preliminary stage.

I therefore suggest that the appeal be granted, the decision of the District Court be overturned and the case returned to the District Court to be determined on the merits.  Respondent no. 1 will pay attorneys’ fees in a total sum of 15,000 NIS.

 

 

President A. Barak

I agree.

 

 

Justice J. Türkel

I agree.

 

It was decided as per the decision of Justice A. Rivlin.

 

17 Av 5761

6 August 2001

Full opinion: 

Stroul v. Attorney-General

Case/docket number: 
CrimA 70/64
Date Decided: 
Monday, June 22, 1964
Decision Type: 
Appellate
Abstract: 

The appellant, a qualified hospital laboratory technician, supplied blood for transfusion to a patient without making sure - by inspection of the label on the bottle containing the blood and carrying out certain prescribed tests - that the blood was compatible with that of the patient. The two were in fact not compatible and after being transfused with blood supplied the patient died. The appellant was convicted and sentenced in the Magistrate's Court and his appeal to the District Court failed. On appeal to the Supreme Court, two submissions in law were made: that the acts or omissions of the appellant were only of the nature of "acts of preparation" and the effective cause of the death were the acts and omissions of the hospital staff to whom the appellant had delivered the blood; that the appellant owed no duty of care to the patient since in the circumstances it was not to be assumed that the blood would be administered without examination by others of the hospital staff.

 

Held: First, the mere fact that others are negligent in carrying our their duties does not break the causal connection between a person's initial negligence and the ultimate result. Second, every person owes a duty of care to the eventual victim when he does an act which may endanger the life or health of another and he cannot plead in defence that he relied on the fact that others might or should later take steps to avoid the danger.

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

Crim.A. 70/64

 

           

ARMAND STROUL

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[June 22, 1964]

Before Olshan P., Landau J. and Cohn J.

 

 

Criminal law - administration of wrong blood type - causing death by negligence - causal connection - duty of care - Criminal Code Ordinance, 1936, secs. 218, 219(e) and 231.

 

 

The appellant, a qualified hospital laboratory technician, supplied blood for transfusion to a patient without making sure - by inspection of the label on the bottle containing the blood and carrying out certain prescribed tests - that the blood was compatible with that of the patient. The two were in fact not compatible and after being transfused with blood supplied the patient died. The appellant was convicted and sentenced in the Magistrate's Court and his appeal to the District Court failed. On appeal to the Supreme Court, two submissions in law were made: that the acts or omissions of the appellant were only of the nature of "acts of preparation" and the effective cause of the death were the acts and omissions of the hospital staff to whom the appellant had delivered the blood; that the appellant owed no duty of care to the patient since in the circumstances it was not to be assumed that the blood would be administered without examination by others of the hospital staff.

 

Held                       (1) The mere fact that others are negligent in carrying our their duties does not break the causal connection between a person's initial negligence and the ultimate result.

(2) Every person owes a duty of care to the eventual victim when he does an act which may endanger the life or health of another and he cannot plead in defence that he relied on the fact that others might or should later take steps to avoid the danger,

 

Israel cases referred to:

 

(1)        Cr.A. 180/61 - Baruch Alpert v. Attorney-General (1962) 16 P.D.1416.

(2)   Cr.A. 11/52 - Joseph Menkes and Others v. Attorney-General and Counter-appeal (1958) 12 P.D. 1905.

 

 English cases referred to:

 

(3)        M'Alister (or Donoghue) v. Stevenson & Others (1932) A.C. 562.

 

S. Toussia-Cohen for the appellant.

G. Bach. Deputy State Attorney. for the respondent.

 

COHN J.                     The appellant was convicted in the Rehovot Magistrate's Court of a crime under section 218 of the Criminal Code Ordinance, 1936  (hereinafter called "the Ordinance") in that he caused, by want of precaution not amounting to culpable negligence, the death of Dr. Bela Granadi. The Tel Aviv-Jaffa District Court, sitting on appeal, confirmed the conviction, but gave the appellant leave to appeal again to this Court.

 

            The relevant facts, no longer in dispute, are as follows:

           

(a) The appellant worked as a "qualified laboratory worker" in the blood bank in the "Assaf Harofeh" hospital in Tzrifin. His task was inter alia to supply the operating theater of the hospital, from the stock in the blood bank, the blood required for transfusion of patients. For this purpose a sample of the blood of a patient is given to him; and it is well known, and the appellant knew, that not all types of blood intermingle and that the danger of immediate death exists if a person with one type of blood is infused with one of the other types which do not mix with his blood. The appellant's duty as, therefore, to inspect first the patient's type of blood and mark it with red pencil on the order form sent to him; to take from the refrigerator bottles of blood of the type which suit the patient's blood type and afterwards to do three "cross-breeding" tests, each according to a different method - that is to say, cross-examination tests of blood mixture of the patient's blood with the blood taken from the refrigerator, so as to know and confirm that they really mix. When the time comes for the blood transfusion, the responsible nurse in the operating theater ends a messenger to the blood bank, who receives either from the appellant or another employee in the blood bank the bottles of blood intended for the patient concerned and which were put back, after all the said tests, into the refrigerator, marked with the patient's name and his blood type, and the order form attached to them.

 

(b) When on 19 December 1960 the appellant received a sample of the deceased's blood, he tested it and determined its type as required; afterwards he went to the refrigerator and took out bottles of blood from it, which stood in the place where, to the knowledge of the appellant, bottles of blood of the deceased's blood type stood. On these bottles the type of blood which they contain was marked. Had the appellant looked at them, he would have seen that the blood in one of the bottles was not of the deceased's blood type. The appellant relied, it seems, too much on the place where the bottles stood in the refrigerator, which was, as I have said, the place where the bottles of the suitable blood type stood, and he did not look at the labels of the bottles. Not only that, but he did not do the said "cross­breeding" test; he returned to the refrigerator the sample of the deceased's blood together with the bottles which he had taken from the refrigerator as aforesaid, marked as intended for the deceased, with the order form attached to them.

 

(c) On 20 December 1960, the day of the operation, a messenger from the operation theater came to the blood bank, and another employee in the blood bank went to the refrigerator, found the bottles for the deceased and handed them over to the messenger. Had she looked at the bottles, she would have discovered that the type of blood marked on one of them did not match the type of blood marked on the order form as the patient's blood type, but she also did not look.

 

(d) The messenger brought the bottles of blood to the operating theater, and when the person responsible in the theater at the time wanted to look at them and see if everything was as it should be, the doctor requested him to hand him the bottles of blood, and so he did; and the inspection was not done.

 

(e) The death of the deceased on the same day was caused by the transfusion of blood which was not of the type of the deceased's but of a different type which does not mix with it.

 

            Before us Mr. Shlomo Toussia-Cohen, counsel for the appellant, tried to argue that although the appellant did not do all the "cross-breeding" tests which it was his duty to do as aforesaid, then at least he did some of them - or if he did not carry them out in the way that it was his duty to do, then at least he carried them out in a different way. At this stage we will not entertain such factual arguments, and we do not dispute the finding of the learned judge in the Magistrate's Court that the appellant did not do "cross-breeding" tests, not all of them or part of them (paragraph 19 of the judgment); and we agree with the evaluation of the learned judge that the appellant thereby was in breach of "an elementary obligation" imposed upon him. And furthermore, by writing the word "compatible" on the order form next to the serial numbers of the bottles of blood which he had prepared for the deceased, he created the wrong impression that he had actually carried out the required tests and found that the types of blood were compatible with one another.

 

            Learned counsel for the defence raised two legal arguments: the first, that the acts or omissions of the appellant did not cause the death of the deceased, they were only within the "acts of preparation" of the acts or omissions of others who caused his death; and the second, that an offence of want of precaution is only committed when a duty of care is imposed on the accused in respect of the deceased, and here there was precisely no duty of care imposed on the appellant toward the deceased. I have not found any substance in these arguments.

           

            As to the causal connection between the appellant's acts or omissions and the death of the deceased, it is sufficient for the prosecution to rely on the provisions of section 219(e) of the Ordinance which provides as follows:

           

"A person is deemed to have caused the death of another person although his act or omission is not the immediate or not the sole cause of death -

...

(e) if the act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or other persons."

 

            Mr. Toussia-Cohen says what is involved are the acts or omissions of others which "accompanied" the appellant's acts or omissions - excluding acts or omissions of others which followed them. The word "accompanied", which the legislator used, indicates, according to this argument, the simultaneity in time of the said acts or omissions, as though they were all done or omitted simultaneously and not one after the other. Here, these were omissions by the rest of the hospital employees who were obliged, in his argument, to inspect whether the blood prepared by the appellant was really suitable for transfusion to the deceased, which occurred after the appellant's acts or omissions and not simultaneously with them; and therefore there is nothing in section 219(e) to constitute the appellant's act or omission as the cause of death by virtue of the law.

 

            There are several answers to this argument: first, the legislator did not in using the word "accompany" adopt technical language at all; his purpose was to assume the existence of different acts and omissions, except for the accused's act or omission, which possibly also caused the victim's death; and it is irrelevant whether they came simultaneously or earlier or later - provided that all of them might have contributed to the death. Secondly, the pleader reveals a misunderstanding of the English language, if he thinks that this word means just to accompany simultaneously; in every dictionary, other meanings will be found in addition to that meaning, such as to supplement, to complete, to coexist, to be added to and not only simultaneously. And thirdly, and this to me is the main point: if you indeed say that the acts or omissions of the rest of the hospital employees did not "accompany" the appellant's acts or omissions in the meaning of this word in section 219(e), the result is not that only because of this are they regarded as the cause of death and not the appellant's act or omission. But the opposite is the case; if there had not been acts or omissions of others which accompanied, in the full meaning of that word in section 219(e), the appellant's act or action, then the appellant's act and omission remained the sole and immediate reason for the death, as stated in the beginning of the section. The mere fact alone that they were "accompanied" by acts or omissions of others as possible causes of the death, creates the problem which section 219(e) is meant to settle.

           

            Accordingly the appellant's act or omission should be regarded as the cause of the death of the deceased, in spite of the possibilities (or even the certainty) that it was possible to avoid the disaster had the rest of the hospital employees subsequently examined the blood prepared by the appellant for that purpose and before the transfusion. Because the rest of the employees are not standing trial before us, I see no need to inquire whether any duty was imposed on them to carry out such additional tests; but as regards the second submission of law I will assume for the benefit of the appellant that he did in fact rely on additional tests being done as aforesaid.

           

            The submission, it will be recalled, is that no duty of care was imposed on the appellant in respect of the deceased and therefore his lack of care gives no cause for his being criminally charged. This argument rests on the rule handed down in the House of Lords in Donoghue v. Stevenson (3), that a person owes a duty of care towards all those to whom a dangerous thing of his manufacture might reach and in the circumstances one may suppose that the dangerous thing will reach that person without further examinations or changes. From the affirmative one arrives at the negative, that if in the circumstances it may be supposed that the dangerous thing will undergo further examinations before reaching that person, then the manufacturer does not owe that person a duty of care.

           

            With due respect to this rule, the cases are not identical. First, there a bottle of beer was involved, in which the remains of a snail which certainly would harm were found, whilst here a prophylactic was involved. Secondly, it was possible to discover the remains of the snail, whether in the bottle before it was emptied or in the glass into which the beer was poured; here the danger of the prophylactic was hidden and could only be discovered by laboratory tests. Thirdly, and this is the main point, there the beer was not prepared for some particular person, either the plaintiff in the case or a specific, known person; here the blood was prepared for the deceased only and had to be prepared according to his real needs. To whom, if not to the deceased, did the appellant owe the duty to prepare the blood with the required care?

           

            Rather, I agree with the submission of Mr. Bach, speaking for the Attorney-General, that the whole question, to whom the appellant owed a duty of care, does not arise at all in view of section 231 of the Ordinance, which imposes a duty on every person doing an act that might endanger the life or health of another to do it with reasonable care; and the section prescribes, at the end that a person who did an act as aforesaid in violation of this duty is regarded as having caused the consequences which result from this omission to the life or health of any person. The appellant well knew how great the danger was to the patient's life if he received a transfusion of blood which did not mix with his own. The duty imposed on him, under section 231 was to prepare with reasonable care the blood for transfusion, that is to say, by taking all the steps and carrying out as aforesaid all the required and fixed tests in the matter. He violated this duty in that he did not take the steps and did not carry out those tests. He is criminally responsible for the consequence of his omissions, the death of the deceased, and it is immaterial that he relied or could have relied on the fact that others would later do the tests.

 

            I am of the same opinion as the learned judges in the District Court, that as to the matter before us it is possible to draw an inference from the matter which was before this Court in Alpert (1). There, a doctor made a mistake in prescribing a medicine which, as prescribed, contained a quantity of poison sufficient to kill the patient. This prescription was directed to the chemist, and there was a clear duty on the chemist to check it and verify that the doctor really did not err in prescribing a quantity of poison which, also according to the knowledge of the chemist, could kill a person. Nonetheless, the doctor was found criminally responsible in that he was in breach of the duty of reasonable care placed on him. And if the doctor there was responsible, the appellant before us a fortiori, because there the act of preparing the medicine was the chemist's, whilst here the act of preparing the blood is the appellant's and precisely his task and responsibility.

           

            I would dismiss the appeal against conviction.

           

            The appellant also appealed against the severity of sentence. The District Court did not see fit to interfere with the sentence, and there is no need to say that it would not have given leave to appeal for a second time to this Court with regard to the penalty. The learned judge in the Magistrate's Court sentenced the appellant to one year's imprisonment, of that six months actual and six months on suspended sentence, and in addition to a fine of IL 1,000. In giving sentence the learned judge says:

           

"Unfortunately the present is not a case of a mere inadvertent mistake, but an act of negligence done intentionally out of disregard for the elementary duties imposed on the accused.... The accused was capable of estimating the extent of danger to a person's life to be expected from his act ... and he was obliged... to pay respect to the essentiality of those means of care which medical science has prescribed in order to prevent danger to a person's life... .

 

It is true that although the act was committed at the end of 1960, the prosecution for some reason found it necessary to lay an indictment only close to the end of 1962, and this delay was an injustice to the accused. But the seriousness of the accused's act is so great that one cannot attribute to this delay a decisive role in fixing the penalty. although I do not disregard it."

 

            The main argument of learned defense counsel before us was that since the accident three and a half years have elapsed, of which two passed waiting for trial and eighteen months during trial, and fear of the law hovered over the appellant for all this long period. This is a consideration which should properly be taken into account in mitigating the appellant's sentence; but since we are convinced that the learned judge also took this consideration into account in mitigating the appellant's sentence, that is no longer ground for our interference.

           

            The appellant was fortunate that he was charged with an offence under section 218 and not with a felony under section 212 of the Ordinance; and in view of the serious consequence of the appellant's act and omission, the punishment imposed on him seems to be too light.

           

            The appeal against sentence is also to be dismissed.

           

OLSHAN P.               I concur.

 

LANDAU J.               I concur.

 

            As to the interpretation of section 219(e), I expressed the opinion in Menkes v. Attorney-General (2) that this section, with its five sub­sections, does not exhaust all the cases in which a person will be regarded as causing the death of another under sections of the criminal law which prescribe the criminal offences of causing death, among which is section 218. Section 219 was drafted on the basis of precedents in English case law, and its source is in section 262 of Steven's Digest of Criminal Law, prepared on the basis of the English case law (see 8th ed., p. 215). I have studied the English judgments mentioned by Steven as authority for his section 262(e), from which our section 219(e) is copied, and I have found that in all of them the accused's act or omission was "accompanied" by the victim's or a third person's act or omission in the narrow sense of the term, that is, the effect of two factors simultaneously and not one following the other. It seems to me that also according to this narrow chronological test, the case before us comes within section 219(e), since the appellant's negligence, expressed mainly in the failure to carry out the required tests, whilst noting "compatible", which is intended to testify that the tests were carried out, continued to have its damaging effect also when each of the other people, who could have avoided the accident, was negligent in fulfilling his duty, till the final stage in which the lethal blood was actually to be used. (Cf. Alpert (1) at pp. 1420-1421.)

 

            Even if we use the flexible test outside section 219 which 1 suggested in Menkes (2): "if according to the facts the causal connection between the accused's act and the death is so strong that criminal responsibility for the death is to be imposed on the accused", there is no doubt that the requirements of this test were here fulfilled. Out of all the measures of care which should have been taken in order to prevent a disaster from transfusion of blood of an unsuitable type, the laboratory test which the appellant should have done was the basic and principal measure. Carrying out this test was entrusted to him and to him alone, in reliance on his special professional capability, and although others could have prevented the consequences of his gross negligence, none of them was obliged to do so by checking by some laboratory test, to do which was imposed on the appellant.

           

            Appeal dismissed

            Judgment given on June 22, 1964

Rotenstreich v. Attorney General

Case/docket number: 
CrimA 35/52
Date Decided: 
Thursday, February 12, 1953
Decision Type: 
Appellate
Abstract: 

The appellant was convicted under s. 218 of the Criminal Code Ordinance, 1936, of causing the death of two small children. The children, though warned not to do so, had been in the habit of bathing in a pool on the appellant's land. The two children had in fact on a previous occasion been driven off and warned not to go near the pool. Nevertheless they disregarded the warning, went into the pool, and were drowned.

 

Held: Allowing the appeal, per Cheshin J. and Assaf J., that the elements necessary for criminal liability under s. 218 of the (criminal Code Ordinance, 1936, are the same as those for civil liability under the English law of torts.

 

Since in the present case the children were trespassers and there had been no breach by the appellant of this duty he had been wrongly convicted.

         

Held further by Assaf J. that the principles of Jewish law led to the same result.

         

Per Silberg J. (dissenting) that the elements of criminal liability under section 218 of the Ordinance are not the same as those of civil liability under the English law of torts. In the present case it had been positively determined that the death of the children was caused by the negligence of the appellant within the meaning of s. 218 and the fact that they, the children, were trespassers, did not exempt him from criminal liability under that section.

 

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

Crim. A. 35/52

 

SHALOM ROTENSTREICH

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[February 12, 1953]

Before: Cheshin J., Assaf J., and Silberg J.

 

 

Criminal Law - Causing death by negligence - Children playing near dangerous pool - Duty of care towards trespasser- Criminal Code Ordinance, 1936, s. G18 - Criminal and civil responsibility - Israel and English Law - Jewish Law.

 

                The appellant was convicted under s. 218 of the Criminal Code Ordinance, 1936 1) of causing the death of two small children. The children, though warned not to do so, had been in the habit of bathing in a pool on the appellant's land. The two children had in fact on a previous occasion been driven off and warned not to go near the pool. Nevertheless they disregarded the warning, went into the pool, and were drowned.

 

Held:            Allowing the appeal, per Cheshin J. and Assaf J., that the elements necessary for criminal liability under s. 218 of the (criminal Code Ordinance, 1936, are the same as those for civil liability under the English law of torts.

 

            Since in the present case the children were trespassers and there had been no breach by the appellant of this duty he had been wrongly convicted.

         

            Held further by Assaf J. that the principles of Jewish law led to the same result.

         

            Per Silberg J. (dissenting) that the elements of criminal liability under section 218 of the Ordinance are not the same as those of civil liability under the English law of torts. In the present case it had been positively determined that the death of the children was caused by the negligence of the appellant within the meaning of s. 218 and the fact that they, the children, were trespassers, did not exempt him from criminal liability under that section.

 

Israel case referred to:

(1)        Cr. A. 158/51- B-Z. Shvili v. Attorney-General of Israel, (1952) 6 P.D. 470.

 

English cases referred to:

(2)        Excelsior Wire Rope Company Ltd. v. Callan and Others, (1930) A.C. 404.

(3)        Grand Trunk Railway Company of Canada v. Walter C. Barnett, (1911) A.C. 861.

(4)        Lowery v. Walker, (1910) 1 K.B. 173; (1911) A.C. 10.

(5)        Cooke v. Midland Great Western Railway of Ireland, (1909) A.C. 229.

(6)        Latham v. R. Johnson and Nephew, Limited, (1913)  1 K.B. 398.

(7)        Jenkins v. Great Western Railway, (1912) 1 K.B. 525.

(8)        Hardy v. Central London Railway Company, (1920) S K.B. 459.

(9)        Robert Addie and Sons (Collieries) v. Dumbreck, (1929) A.C. 358.

(10)      Morton v. Poulter, (1930) 2 K.B. 183.

(11)      Buckland v. Guildford Gas, Light and Coke Co., (1948) 2 All. E.R.1086.

(12)      Edwards and Another v. Railway Executive, (1952) 2 All E.R. 430.

(13)      R. v. Percy Bateman, (1925) 19 Cr. App. RC. 8.

(14)      R. v. Nicholls, (1874) 13 Cox C.C. 75.

(15)      R. v. Doherty, (1887) 16 Cox C.C. 306.

(16)      Andrews v. Director of Public Prosecutions, (1937) 26 Cr. App. R. 34.

(17)      Younghusband v. Luftig, (1949) 2 K.B. 354.

(18) E. Gautret. Administratrix of Leon Gautret, deceased v. Egerton and Others; L. Jones, Administratrix of John Jones, deceased v. Egertorn and Others, (1867) L.R. 2 C.P. 371.

 

American case referred to:

(19)      United Zinc and Chemical Co., v. Britt et ux., (1921) 42 Sup. Court Rep. 299.

 

Bar-Shira and Eliad for the appellant.

Ben-Shabtai, Deputy State Attorney, for the respondent.

 

            SILBERG J.  On August 23, 1950, between 3 and 3.15 p.m., the bodies of two children aged eight and nine were taken from the pool which is in the grounds of the industrial plant, "Even Ve-Sid", at Ramla. They had come to bathe in the pool, where they were drowned. The manager of the plant, Shalom Rotenstreich, was charged in the District Court of Tel Aviv with "causing death by want of precaution", under section 218 of the Criminal Code Ordinance, 1936. He was convicted, and sentenced to three months' imprisonment. His appeal before us is against both the conviction and sentence, and his main contention is that the act - or, more precisely, the omission - imputed to him, does not amount to an offence under the said section.

           

2.         The main facts are not in dispute, and are as follows: -

            The pool measured eight to eight metres, the depth of the water was about a metre-and-a-half, and it served as a water-reservoir for the industrial plant. The grounds of the plant as a whole were unfenced and open, but the pool itself was surrounded by a low wall (in the court below described as "a railing"), and its height was 60 centimetres. The pool was built on the top of a small rise, and steps on each side led from the foot of the rise to the railing, and from the railing to the water and the bed of the pool. On one side the pool adjoined the open grounds of the plant, and on the other side it was bounded by the road. The children of the neighbourhood were in the habit of coming to bathe in the pool, from the grounds of the plant or from the road, but the persons in charge of the plant were not happy about these visits, and whenever they came upon the children, they would scold them and drive them away from the vicinity of the pool. These same children, the victims of the accident, had also been driven away once before by the plant watchman. However, like their other friends, they did not heed the watchman's warnings, but as often as they were turned away, they came back. There was no special watch on the pool, and the watchman whose duty it was to keep watch over the whole area of the plant used to come to work at 5 p.m., and stay there until 7 in the morning. The accident occurred at approximately 3 p.m., at which time there was no watchman, either in the grounds of the plant or at the pool. It follows from the findings of the learned judge that it would have been possible to prevent the accident if there had been an efficient and proper watch at the approach to the pool, or if the wire-netting that was spread out over the pool after the accident, had been placed there earlier.

 

            The court below held that the children who were drowned were trespassers, but it nevertheless convicted the appellant of an offence under the said section. The learned judge drew an analogy between the rules of civil and criminal law: he reviewed the well-known English judgments given in actions in tort, brought by a trespasser (or his successor) in respect of an accident in which he had been injured or killed while entering upon private property. The court found that the accepted view until 1930 had been that the owner was not liable for injury to a trespasser unless the injury was intentional, or had been caused by something similar, but in that year, in the case of Excelsior Wire Rope Co. v Callan (2), it was held that the owner is liable for injury to a trespasser, even where the injury is caused not by an act but by an omission involving an element of reckless disregard as to the fate of the trespasser. In the present case, the learned judge concludes, "the accused is guilty of such disregard. He was well aware of the danger to children using the pool. He knew that the means he had employed were not sufficient, even though it was possible for him to employ adequate means", and so forth.

           

3. It seems to me, with all due respect, that this view is erroneous for two reasons: -

 

            (a) The English rule was not changed in the Excelsior case (2), but remained as it had been before that judgment was given;

           

            (b) More important, a civil claim for the payment of damages is not the same as a criminal prosecution - I would add, in particular, the criminal prosecution for an offence under section 218 - and, as we shall see, the one cannot be understood by reference to the other, whether by way of analogy or by way of inference a fortiori, neither as favouring liability nor as exempting from liability.

           

4. Let me start by dealing with the first question, that of the liability in the English law of torts of the owner of property towards a trespasser, and in particular towards a trespasser who is a child. I refer to the English law of torts, and not the Palestine Civil Wrongs Ordinance, 1944, since if there is found to be any difference between them, we must prefer the English law for the simple reason that the Criminal Code Ordinance, 1936, preceded the Civil Wrongs Ordinance, 1944, and in any event the 1944 Ordinance cannot serve as a source of interpretation of the terms and concepts of the Criminal Code Ordinance.

 

5. The following are the leading judgments in which the above-mentioned question of liability was dealt with at some length. They are not all of equal value and importance, but taken all together, and noting the differences between them, we get a clear and comprehensive picture of the English doctrine on this interesting and very important question. The judgments are : -

 

            (a) The judgment given by the Privy Council in the case of the Grand Trunk Railway Co. of Canada v.. Burnett (3). That was a claim for damages against a Canadian railway company for bodily injuries to a person whose hands had been amputated in a train collision, caused by the negligence of the company's employees. It was held that the plaintiff was a trespasser - in contravention of the by-laws, and without a ticket, he had climbed on to the platform of a coach which was altogether unconnected with any passenger train - and the Privy Council held that the company was not liable to pay damages. The Canadian court had thought otherwise, and there is some ground for its view. It stated :

           

"The personal safety of a human being (though he be a trespasser) must not be endangered by the negligent act of another. Given the circumstances of this case, it does not seem. . . . . that the defendants are exempt from liability though the plaintiff was nothing else than a mere trespasser." (ibid., p. 369).

           

            But the Privy Council was not content with that view; it reversed that judgment and, as was said shortly and simply by Lord Robson:

           

            "The general rule..... is that a man trespasses at his own risk." (ibid., p. 370).

           

            However - and at this point there is a certain withdrawal from the wide pronouncement quoted above - the learned judge said : -

           

            "Again, even if he be a trespasser, a question may arise as to whether or not the injury was due to some wilful act of the owner of the land involving something worse than the absence of reasonable care. An instance of this occurred where an owner placed a horse he knew to be savage in a field which he knew to be used by persons as a short cut on their way to a railway Station : Lowery v. Walker (4). In cases of that character there is a wilful or reckless disregard of ordinary humanity rather than mere absence of reasonable care." (ibid.)-

 

            (b)        The well known judgment of the House of Lords in the case of Cooke v. Midland Great Western Railway of Ireland (5). That judgment is of particular interest, for prima facie it is possible to infer from it (and indeed judges in later cases did so erroneously infer), that the liability of the owner towards the trespasser, particularly if he is a child, is not necessarily limited to a wilful or reckless act on the part of owners - and, as is well known, the "binding force" of decisions of the House of Lords as precedents is greater than that of opinions of the Privy Council (see Halsbury, Hailsham Ed. Vol. 19, p. 258, and the cases there cited). But the position is not so : there is, as appears below, no inconsistency between the two. The facts in that case were that a child of tender years (about four years old) was seriously injured while playing on a railway turntable belonging to the railway company. The accompanying circumstances were these : the turntable was situated on a triangular plot of ground belonging to the defendant company; it was closed off by a broken thicket hedge, and the children were in the habit of going through this gap on to the plot of ground in order to amuse themselves on the turntable.

 

Lord MacNaghten said (at pp. 585, 286) :-

 

            "It is proved that in spite of a notice board idly forbidding trespass it was a place of habitual resort for children and that children were frequently playing with the timber, and afterwards with the turntable."   Now the company knew, or most be deemed to have known, all the circumstances of the case and what was going on. Yet no precaution was taken to prevent an accident of a sort that might well have been foreseen and very easily prevented. They did not close up the gap until after the accident... They did not have their turntable locked automatically in the way in which it is usual to lock such machines... 1 think the jury were entitled, in view of all the circumstances, on the evidence before these, uncontradicted as it was, to find that the company were guilty of negligence."

 

            It is not possible to know from that somewhat vague language how the noble lord regarded these children - as licensees or trespassers. His remark about the "idle" prohibition of the notice board does not teach us very much, and it may be read either way. That judgment is, however, if one may so put it, "poor in parts and rich in others", and the answer can be gleaned from the words of the other judges. For example, Lord Atkinson said (at p. 239):

           

"...I think that there was evidence proper to be submitted to the jury that the children living in the neighbourhood of this triangular piece of ground, of which the plaintiff was one, not only entered upon it, but also played upon the turntable - a most important addition - with the leave and licence of the defendant company.''

 

            From the considerable importance that Lord Atkinson attached to the element of "leave and licence" it may be inferred that he sees in it the principal basis of his decision. Lord Loreburn L.C. also notes that the defendants "took no steps either to prevent the children's presence or to prevent their playing on the machine" (see p. 242), and in that he concurs, so he says, with Lord MacNaghten in his opinion. Lord Collins goes further in this direction than all of his colleagues. He stresses the fact that the turntable was situated "in such a conspicuous place, and frequented so largely by young people without remontrance by the defendants", and he also notes the gap in the fence that "called" to these youngsters; and he is prepared to conclude therefrom that the children were not only licensees, but were even within the category of invitees (see p. 241).

           

            It follows that while interesting things were said in it here and there about the mischievous and recalcitrant nature of the children, and of the danger of allurement concealed in the dangerous machines that attracted them, the fundamental basis and the main ground of the judgment was that, taking into account all the circumstances of the case, including the mischievousness and the recalcitrance and the allurement, the injured child was regarded, if not a real "invitee", at least a "licensee" of the company in question, and for that reason the company was held liable in damages. For, but for this fact, there was no ground for holding the company liable, since it had not done an act, willful or reckless, to endanger the child's life. Indeed, that was how that judgment was interpreted in the judgment given some years later by the Court of Appeal. I refer to Latham v. Johnson (6), where Hamilton L.J. says (at p. 417) :

 

            "The Court of Appeal in Ireland ...declined to regard it (the reference is to Cooke's case (5), above) as a case on the duty of an owner or occupier of property towards a trespasser... In Jenkins v. Great Western Railway (7), in this Court, all the members of the Court... stated that in their opinion Cooke's case (5) was decided on the assumption that Cooke was licensed by the railway company not merely to come upon the land, but to play with the turntable."

 

            (c) The judgment of the Court of Appeal in the case of Hardy v. Central London Railway Co. (8). This case was also about a railway accident, this time on an underground railway, and the victim was a five year old boy, whose hand was mutilated while playing with the belt that operates the escalators up and down from the booking hall to the passengers' platform. The remaining details closely resemble those of the present case. The children of the neighbourhood were in the habit of running up and down the escalators and the company knew that; station officials would drive the children off whenever they saw them, and the children would return when they were not seen. This particular child, Hardy, was driven away from there by a policeman shortly before the accident took place. The legal question was whether, in the light of these facts, the children were to be regarded as licensees or as trespassers, and the Court of Appeal's reply, in contradistinction to that of the Judge of first instance, was that they were trespassers. Thus, Bankes L.J. said (at p. 466):

           

            "I can conceive of warnings to children so ineffective, either from their nature or from the absence of any attempt to enforce them, as to convey to the mind of a child the impression that no real objection was taken to what was being done. In such a case it might be possible to draw the inference that the child was allowed to be and remain under the impression that it had permission to do what it was doing... (some examples are then cited) ...The present case is not one in which, in my opinion, any inference of licence can be drawn. I come to the conclusion upon the evidence that the children were all of them fully aware of the fact that they had no right to be, and no business to be, where they were. In other words, that they were trespassers. "

 

The learned judge quotes the words of Hamilton L.J., in the case of Latham v. Johnson (6) :

 

            "It is hard to see how infantile temptations can give rights, however much they may excuse peccadilloes. A child will be a trespasser still, if he goes on private ground without leave or right, however natural it may have been for him to do so."

 

            Then Scrutton L.J., in the same case, after completely rejecting the argument of how alluring and attractive these moving stairs are to little children, holds - if one may put it this way - that an allurement does not give rise to a licence and that, in view of the company's unrelenting objection to their visits, those children were trespassers and not licensees, and accordingly said (at pp. 473, 474) :

           

            "...The landowner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure them, but was under no liability if, in trespassing, they injured themselves on objects legitimately on is land in the course of his business. Against those he was under no obligation to guard trespassers."

 

            (d) The judgment of the House of Lords in the case of Addie and Sons v. Dumbreck (9). In this case the House of Lords followed the theory of the judgment in Hardy's case (8), and dwelt on the principles to be applied to the question of the owner's liability towards the trespasser. The facts were these:

           

            A four-year-old child was injured and died of its injuries while playing with a wheel connected by a moving cable to the hauling apparatus of a coalmine. This was worked electrically from the grounds of the mine, and was not visible from the place where it was being worked. The wheel was in a field surrounded by a fence, the gaps in which were more numerous than the parts in good repair, and strangers, youngsters and adults, would go in and out of it, whether to take a short cut or to play games. The company objected to strangers coming upon the premises, and their officials would remonstrate with the adults and warn the youngsters not to go there. From these facts the House of Lords, unlike the Court of Appeal, concluded that the children were trespassers, and relieved the company from paying damages. The finding of fact in the case is not relevant for our purposes. Nor us the importance lies in the legal ruling laid down concerning liability for the trespasser's injuries. Lord Hailsham L.C. said (at pp. 864, 365) :-

 

"The first and in my opinion only question which arises for determination is the capacity in which the deceased child was in the field and at the wheel on the occasion of the accident. There are three categories in which persons visiting premises belonging to another person may fall; they may go

 

1)      by the invitation, express or implied, of the occupier ;

2)      with the leave and licence of the occupier; and

3)      as trespassers.

 

            "The duty which rests upon the occupier of premises towards the persons who come on such premises differs according to the category into which the visitor falls. The highest duty exists towards those persons who fall into the first category, and who are present by the invitation of the occupier. Towards such persons the occupier has the duty of taking reasonable care that the premises are safe.

           

            "In the case of persons who are not there by invitation, but who are there by leave and licence, express or implied, the duty is much less stringent - the occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or to allow a concealed danger to exist upon the said premises, which is not apparent to the visitor, but which is known - or ought to be known - to the occupier.

           

            "Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some willful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser."

           

            Such is the rule of liability - or more precisely, the rule of absence of liability - of the owner or occupier towards the trespasser in the English law of torts. It has not since altered, as we shall see, and English case-law has not moved from that position to this day.

 

            (e) And now we come to the judgment of the House of Lords in the case of Excelsior Wire Rope Co. (2), the case in which the learned judge of the court below thought that there was an important doctrinal development and revision in relation to the principle expressed a year previously, with unsurpassed clarity, in the Addie-Dumbreck case (9), referred to above. But, as I have already indicated, the position is not so, as will appear from a careful scrutiny of the details of the case. The headnote to the case published in the Law, Reports is not accurate and is liable to mislead, as happened with the headnote in Cooke's case (5), which led many worthy judges astray, and nearly lead to the reversal of the clear ruling there laid down (see the remarks of Bankes L.J. in Hardy's case (8), at p. 467).

           

            The facts in that case were as follows:-

            A company engaged in the manufacture of wire rope established its plant near the railway. It connected the plant to the railway lines by a siding, and moved its wagons over the rails by means of a long wire rope which passed around a pulley, set up on someone else's plot of land under licence from the owner (the Marquess of Bute). A dynamo in the factory worked the pulley for a few minutes three times a week. The fence round the plot of land had "disappeared" and the children of the neighbourhood had their eye on that plot of land as a playground for themselves, and would go and "handle" the pulley-wheel. The company's employees did not disturb the children in their games on the plot of land or prevent them from getting to the wheel, and would turn them away from there only when the wheel was working and the wagons were in motion. On the day of the accident, when they were about to move a wagon, one of the workers, as was his custom, went to the wheel and drove the children away from there. But on that occasion the man was in no hurry to work the dynamo and delayed some twenty minutes before doing so (see the account of the facts as reported in 142 L.T.R. at p. 532).  Meanwhile the children had time to get near the wheel again and one four-year-old girl began to swing on the rope. The worker did not notice what she was doing because he did not look in her direction and, when the dynamo was started and the wheel began to turn, the girls hands were caught in the wheel or the rope and she was severely injured, together with her brother who rushed to her aid.

 

            A claim for damages against the company was made by the children's father. The judge of first instance held in favour of the plaintiff by deciding that the children were licensees; the judges of the Court of Appeal, including Scrutton L.J., confirmed the judgment, but not on the same ground as the judge below. They held that the children were trespassers and not licensees, yet nevertheless the company was liable to pay for the injury since it had been caused "by an act done by the appellant's servants with reckless disregard of the presence of children" (see pp. 405, 406). The House of Lords confirmed the judgment of the Court of Appeal, but it is not clear whether on the ground given by the latter, or on the ground given by the judge of first instance, or on a ground combining and fusing the two together, and I incline in fact to the last version. The judges of England, especially those of superior courts, are wont to ride several horses at once because of their strenuous - in my opinion somewhat exaggerated - efforts to limit the scope of their decisions to the facts of the particular case before them. The real reason for the decision was, if we want to be absolutely accurate, that there was no prohibition imposed on the children to be near the wheel when it was not working; their presence there was, therefore, permitted, and the company's servants were accordingly bound to see that they were sent away from there the moment they started working their dynamo, and not to rely on the check made by them twenty minutes earlier. That was the ground of the decision in Excelsior Wire Rope Co. Ltd. v. Callan (2), and that is what, in my opinion, distinguishes it from the facts in Addie's case (9). This is how Lord Buckmaster summed up the matter (at p. 410) :-

           

            "To the knowledge of the Excelsior Wire Rope Company these children played uninterruptedly round this post (the reference is to the post to which the pulley-wheel was affixed); there was nothing to prevent them doing it, and I cannot find that there is any evidence to show that, except at the moment when this machine was going to be set in action, they were ever driven away. It was therefore well known to the appellants that when this machine was going to start it was extremely likely that children would be there and, with the wire in motion, would be exposed to grave danger."

 

            In the judgment of Lord Warrington of Clyffe we read (at pp. 411, 419):-

           

            "There is ample evidence that, to the knowledge of the servants of the appellants, children were in the habit, not only of playing around this sheave and using it for purposes connected with their games, but were actually in the habit of playing with the machine, and the ropes and so forth attached to it, so that it was found necessary, when they were about to use the machine, to see that it had not been put out of gear by the children. Under those circumstances, it seems to me quite plain that there was a duty upon the present appellants, by their servants, when they were about to put this machine in motion, so that it would become a danger to any children who might be in the neighbourhood, to see whether or not at that moment there were children in such a position as to be exposed to danger".

 

            And a passage from the speech of Lord Thankerton (at p. 414) :-

           

            "...the children not only had constant and free access to the machine itself, but clearly to the knowledge of the appellants they were in the habit of interfering and playing with both the post and the wire rope, and it was only when the occasion of putting the machine into operation arose that there was any question of keeping the children away from that spot".

           

            That was the ratio decidendi in the judgment given in that case by the majority of the judges in the House of Lords, and only Lord Atkin, in his short judgment, sees the matter apparently in a different light, and determines the responsibility on the basis of the fact that the company was not itself the owner, and not even the occupier, of the plot of land; it was only licensed by the Marquess of Bute to put up the post with the wheel there, and so its liability towards the injured person was greater than that of the owner or of the occupier (see pp. 413, 413).

           

            In analysing the common ratio of the majority judges as aforesaid, and in trying to endow it with a more fundamental character, we find - so it seems to me - that there is a certain combination and fusion of both the notion of "licence" and the notion of "the reckless act". The children were allowed to be by the wheel; therefore it was a reckless act on the part of the company's servants to start the dynamo and the wheel without first ascertaining whether or not there were in fact children there at that very moment. But for that fact, that is to say. if the children had been forbidden to be on the spot at all, as happened in Addie's case (9) , it would have been neither a wilful act nor a reckless act on their part to set the said wheel in motion.

           

            And that very problem, namely, In what way Addie and Sons v. Dumbreck (9) differs from Excelsior Wire Rope Co. Ltd. v Callan (2), was dealt with by Scrutton L.J. in his judgment in Mourton v. Poulter (10), at p. 190. In the opinion of Scrutton L.J., the difference between these two cases is that in the first case a small hillock separated the wheel from its operators, and from where they stood they could not see the wheel and the children, whereas in the second case the starting signal was given at a distance of twenty yards from the wheel, and the man could have seen the children had he bothered to turn his head. However, it seems from what the learned Lord Justice immediately went on to say that he was not so certain of the correctness of this distinction - and rightly so - since there is no real basis for the factual distinction in the points that were emphasized in the latter judgment. Nevertheless, even if one assumes that that is indeed the correct distinction, that is still no authority for the view that, with the giving of the judgment in Excelsior v. Callan (9), the owner's liability towards the trespasser was broadened in principle, and that it henceforth extends (as the learned judge in the court below thought) also to an omission involving reckless disregard of the presence of the latter. For even in Excelsior v. Callan (2) there was no omission but a positive act, since the child was injured by the setting of the wheel in motion.

 

            Putting the matter shortly, there is nothing in the judgment given in the case of Excelsior v. Callan (9), which constitutes a development or revision of the ruling laid dozen in Addie's case (9), and the owner's (or occupier's) liability towards the trespasser still remains as it was. Its limits have not been overstepped and they are as they always were, namely, either a wilful act on the part of the owner, or an act involving reckless disregard of the presence of the trespasser. He is not liable for damage caused to the trespasser through "passive" negligence, that is to say, if he is injured by something - and the something is not dangerous - situated for some time past on the owner's land, and no new act has been done to injure the trespasser or endanger him. "As the land remains in the same state, a trespasser must take it as he finds it, and the owner is not bound to worn him." Those were the words of Scrutton L.J. himself (at p. 191) in setting out the reasons for the decision given by him in Mourton v. Poulter (10) and they also correspond to what was said by him in Hardy's case (8) (at pp. 473, 474).

           

            (f) In later judgments too we do not find any departure from that clear rule; on the contrary, we find it affirmed again and again. I shall not set out all the judgments given on this point since 1930. I shall only call attention to the remarks of Lord Morris in the case of Buckland v. Guildford Gas Light and Coke Co. (11), on p. 1092 (between the letters D and E), and to the judgment of the House of Lords in 1952 in Edwards v. Railways Executives (19), the two recent decisions to which counsel for the appellant drew our attention. It will be noted here that the rule which has been discussed above corresponds to the position in American law, as expressed in the majority judgment in the well-known case of United Zinc and Chemicals Co. v. Britt (19).

           

6.         It follows from what has been said that since in the present case there was no injurious act on the part of the owners (the pool had for some time been situated on their land, and they were not "working" it when the accident happened), and since, as the learned judge held, the children were trespassers, the negligence of the present appellant - the "passive" negligence as we have called it - does not make them liable for the payment of damages. And the conclusion that follows is that, if the view is sound that the criminal negligence required for a conviction under section 218 must be of a degree greater, or at the very least no less, than the civil negligence required for making a person liable to pay damages, the learned judge ought to have acquitted the appellant.

           

7.  I said if the view was sound, and with that we have reached the second, perhaps most important, question in this appeal. From what is said in paragraph 9 of the judgment of the court below, it seems that the learned judge was not entirely at case about the analogy between the rules of criminal and civil law - notwithstanding the fact that he made it the basis of his judgment. The problem is by no means an easy one, and we still lack precedents to guide us on to the correct path. In Shvili v. Attorney-General (1), Cheshin J. commented obiter, "that these factors (he is referring to the terms of the offence under section 218) are to a certain extent identical with the elements required to prove civil liability in an action arising from manslaughter by negligence in English law," but since there was no need for deciding the matter in that case, he did not go deeply into the problem, and did not explain to what extent they are identical with those factors. At all events, the very expression "to a certain extent" points - so it seems to me - to the lack of a complete resemblance between the two matters mentioned.

           

8.  Let us take a look at the wording of the section, exactly as it is written in the original English : -

 

"218. Any person who by want of precaution or by any rash or careless act, not amounting to culpable negligence, unintentionally causes the death of another person, is guilty of a misdemeanour and is liable to imprisonment for two years or to a fine of one hundred pounds."

...........................................................................

 

            It is quite plain that not every want of precaution and not every rash and careless act which causes death, is sufficient to convict a person of an offence under section 218. They must be of a certain "degree", and not too great; the act must involve negligence, and must not involve culpable negligence. I shall not enquire here where the borderline is to be drawn between the two, for I know that one cannot accurately fix its exact position. It is a question of degree, and the matter is left to the judge who hears the case. But one may certainly ask - and that is the question which interests us in this appeal : what is the relation between civil liability and criminal liability, and can the matter be put by saying that negligence which, for whatever reason, does not involve civil liability to pay damages, entails criminal liability for an offence under the section?

           

9. Now the question has apparently - and I stress the word apparently - been considered countless times in the English courts, and has been completely solved there, although the solution is not clear. Thus we read in the well-known judgment of Lord Hewart in R. v. Bateman (13), (at p. 16) :-

 

". . . . . the explanation of criminal negligence to a jury should not be a mere question of epithets. It is, in a sense, a question of degree..... but there is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime".

 

            And what is the difference? As to that, it is stated in an earlier passage (at p. 11) :-

           

". . . . . in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State. . . . ."

 

            So the "felonious intent" or mens rea, in the classical, and not the modern, meaning of the term, is the criterion of criminal responsibility, as distinct from civil liability, and that is the substantial difference arising from the distinction between the two categories of negligence.

           

            A similar idea had been expressed fifty years earlier by Brett J. in the case of R. v. Nicholls (14). A small child, the illegitimate son of a young spinster, died from lack of adequate nourishment, and his grandmother, who had voluntarily taken upon herself to maintain him, was put on trial on a charge of manslaughter by negligence, and acquitted. The instructions of Brett J. to the jury were (at p. 76) as follows :

 

"..... Mere negligence will not do, there must be wicked negligence, that is, negligence so great, that you must be of opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not."

 

            Similarly, in the charge of Stephen J. to the jury in the case of R. v. Doherty (15), we come across a concept, also dealing with the state of mind of an accused person, although it is not so clearly expressed.

           

". . . . . Manslaughter by negligence occurs when a person is doing anything dangerous in itself......and conducts himself in regard to it in such a careless manner that the jury feel that he is guilty of culpable negligence, and ought to be punished. . . . . But if there was only the kind of forgetfulness which is common to everybody, or if there was a slight want of skill, any injury which resulted might furnish a ground for claiming civil damages, but it would be wrong to Proceed against a man criminally in respect of such injury." (See p. 309.)

 

            Finally, one last reference, where stress was put, without pointing to the qualitative distinction which is involved, as was done in Bateman's case (13), on the "quantitative" difference - the difference of degree - between civil negligence and criminal negligence. I refer to the words of Lord Atkin in the well-known case of Andrews v. Director of Public Information (16), (at p. 47) : -

 

            "Simple lack of care such as will constitute civil liability is not enough. Nor purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."

           

10. It follows from all these authorities that civil liability is not the same as criminal liability, and that the latter (in cases of manslaughter by negligence) requires, as a sine qua non, a degree of negligence far higher, or more tainted with guilt, than the negligence that suffices to impose liability to pay damages.

 

11. What then is the conclusion to be drawn from these citations as regards the question raised by me at the end of paragraph 8? Can we maintain that standard when we come to  "measure" the degree of negligence required to convict a person of an offence under section 218?

 

            My answer to that is in the negative. For the problem with which we are dealing does not correspond with the example quoted, and I therefore inserted the word "apparently" at the beginning of the ninth paragraph. All the English authorities cited dealt with a charge of manslaughter by negligence - that is, the felony, falling in our country, under certain conditions, within the scope of the offence set out in section 212; 1) whereas our concern is with the special offence set out in section 218. The drawback is that the offence in section 218 is a novelty conceived in the library of the Palestine legislator; it has no counterpart in English criminal law, and so the distinction made in the English judgments quoted above has no application.

           

            Let me explain what I mean. The offence laid down in section 218 is an exceptional offence, and its provisions and exceptions are of the most special kind. It contains two almost opposites under one heading : negligence entailing punishment, yet for all that not culpable. Whatever the exact meaning of that adjective, one thing is certain : that here the legislator did not introduce the "felonious intent", the mens rea in the classical meaning of the term. This is not one of the usual phenomena in criminal legislation; it is by its very nature exceptional, even in the criminal legislation by regulation of our generation. See the stimulating words of Lord Goddard, C.J. in the judgment given in 1949 : -

           

"Of late years the courts have been so accustomed to dealing with a host of offences created by regulations and orders independent of guilty intention that it is desirable to emphasize that such cases should be regarded as exceptions to the rule that a person cannot be convicted of a crime unless he has not only committed a forbidden act or default but also that a wrongful intention or blameworthy condition of mind can be imputed to him." (Younghusband v. Luftig (17), at p. 370.)

 

            In other words, "mens rea" - the classical "mens rea" - is still one of the fundamental properties of criminal legislation, apart from those special cases where the legislator deliberately dispenses with it. Section 218 is one of the cases where the legislator has waived this important condition; he had his reasons, though he did not disclose them to us. The citizen is thereby given a special warning to take particular care with regard to other people's lives and not to do anything, even unknowingly, which endangers the life of a fellow-being. If a person is not careful, and a man loses his life, he gets his punishment as a warning to others not to make the same mistake again. The meting out of punishment here is, if one may say so, a precautionary measure employed by the legislator to safeguard the citizen's life against want of precaution on the part of his fellow-citizens. If such is the case, if that indeed was the intention and aim of section 218, there is no logic in the special criminal liability under this section being dependent upon and adjudged according to the terms and exceptions of civil liability.

 

            But then it may be asked, how is that possible? Can an act which does not suffice to make a person liable in damages, result in the same person being sent to prison for two years? My answer is, that there is nothing surprising in that; it is not the first time such a thing has happened, as is shown by the doctrine of "contributory negligence" : this serves (in certain circumstances) as a defence to a defendant in an action in tort, but is no defence to an accused in a criminal prosecution. Take another example which springs to mind in this very connection : the situation that existed here in Palestine between the publishing of the Criminal Code Ordinance, 1936, and the coming into force of the Civil Wrongs Ordinance, 1944. During that period it was certainly possible for a person to be held liable and punished for an offence under section 218, and yet not to be held liable and not to pay damages for precisely the same act, in the case of a civil Claim. The difference between the civil action and the criminal prosecution under section 218 is simple and clear : in the civil action the parties are citizen and citizen, and the matter under consideration is the payment of money for a monetary loss; in a criminal prosecution the parties are the citizen and the State, and the matter under consideration is the penalty of imprisonment (or fine) in order to prevent the loss of life; there will therefore be absolutely nothing illogical in acting with greater severity, and imposing liability for less negligence, particularly in the second case. Anyone who does not admit this distinction, and considers that the negligence necessary for a conviction under section 218 must be no less, and perhaps even greater, than the negligence required for liability in an action in tort, will be at pains to excuse and explain the palpable fact that the criminal liability under section 218 was limited only to cases of causing death, and the legislator did not extend it, either in the same section or elsewhere, to cover cases of wounding and bodily injury as well; for the general "criminal negligence" dealt with in Chapter 26 of the Criminal Code Ordinance, 1936 (sections 243-247, is not identical with the "non-culpable negligence" in section 218, but is of a higher degree, as its name implies.

 

12. The idea propounded here is fraught with very important consequences, but there is no necessity to draw all the possible conclusions from it within the framework of the present appeal. It is sufficient for as to restrict the principle herein to the specific, concrete problem before us, namely, whether the fact that the children, the victims of the accident, were trespassers (a fact which, in the circumstances of the case was, as we have seen, likely to serve us a bar to any civil claim for the payment of damages) is enough to result in the appellant's acquittal in respect of the criminal offence with which he has been charged under section 218. We must constantly bear in mind the fact that the children's visits in order to bathe in the pool were known and anticipated by the men working on the undertaking, but that they did not approve of them, so that the appellant's argument is not: "It did not occur to me that someone would dare to trespass on my property", but: "It did occur to me, but nevertheless I am exempt from liability." The question is whether to accept that argument in the criminal case before us.

 

            It seems to me that within these restricted limits, at all events, there is no room for query or doubt. Why is the trespasser not entitled to the payment of damages for the accident that occurred to him as a result of the passive negligence of the owner? Because the trespasser, as has been stated, "entered the place on his own responsibility"; because he agreed, as it were ("agreed" in the broad and not in the technical meaning of the term), to be responsible for the damage that would be caused to him as a consequence of his endangering himself. That being so, when does this concept - the concept of agreement and waiver - apply? When one is concerned with a civil, private action of an injured person seeking to replace an out-of-pocket loss, and not when the prosecution is a criminal, public one, brought by the State, with the purpose of preventing danger to life. For the life of the individual is not his private property, and he cannot give up or waive his right to it. Apart from that, the concern here is not for his own life alone.

           

13.       Finally, when the only possible defence available to the negligent defendant in an action in tort is that the injured plaintiff is a trespasser, then that defence will not avail him when he stands trial on a criminal charge under section 218.

 

            But there is one important exception to that rule, and it would be proper to state and stress it, for the avoidance of misunderstanding and error. Sometimes the fact that the deceased was a trespasser will serve the accused as a defence under section 218, not directly but indirectly, namely, when the fact is to be considered as reducing or canceling out the very negligence of the defendant. Putting it concretely: when, in the circumstances of the case, the accused is not bound to anticipate that the stranger who was killed would enter and be injured upon property that was not his. In such a case the judge will acquit the accused, not because of the deceased's act of trespass, but because of the accused's lack of negligence - a subtle distinction, but one that is fairly clear. In the present case there was no ground for such an argument, nor was it argued, as I have already indicated. The forbidden visits to the grounds of the pool were in this case offences regarded by children as of no consequence; the plant manager foresaw them, and could not fail to foresee them, so that such trespass, as a fact, was not calculated to reduce the appellant's negligence to the extent required in section 218. The sole question here, therefore, is whether it was capable of being a legal defence, in spite of the fact of negligence, and to that, too, the answer must be in the negative, on the ground explained at the end of the foregoing paragraph.

 

14. The conclusion that I have reached, therefore, is that since in the present case it was positively determined that the death of the children was caused by the negligence of the appellant within the meaning of section 218, the fact that the children were trespassers does not exempt him from criminal liability according to that section. There is equally no basis, in my opinion, for the appeal against the sentence.

 

            In my opinion, therefore, the appeal should be dismissed.

           

            CHESHIN J.  This is an appeal from a judgment of the District Court of Tel Aviv in which the appellant was convicted of causing death by want of precaution not amounting to culpable negligence, under section 218 of the Criminal Code Ordinance, 1936. and was sentenced to three months' imprisonment. The appeal is against both the conviction itself and the severity of the sentence.

           

2. The facts which brought the appellant before the court are not in dispute, and accordingly I have only to repeat with the utmost brevity the findings of the court below:-

 

A. The appellant is the manager of the "Even Ve-Sid" plant in Ramla. The grounds of the plant were unfenced, and on a moderately high rise is a square- shaped water-pool which covers an area of sixty-four square metres and serves the needs of the plant. The walls of the pool are slightly higher than the top of the rise, but the approach to the waters of the pool does not involve particular difficulty since a few stone steps lead from the ground to the edge of the walls. On the other hand, exit from the pool is difficult because the interior steps, situated under the level of the water, are slippery and serve as an insecure stepping-place. No satisfactory watch was placed over the pool, nor were any special precautions taken against strangers coming to bathe in it. Children of the neighbourhood, therefore, were in the habit of entering the grounds of the plant and of enjoying a dip in the pool when no one was looking on. The appellant, however, not only did not permit them to do so, but instructed his subordinates who worked at the place to drive away any child found wandering about on the premises of the plant close to the pool. The employees carried out these instructions, and occasionally, when they saw children bathing in the pool, would also remove the clothes left on the banks of the pool. This led several times to complaints and clashes between the employees and the children's parents. The appellant himself, too, would drive children away when they came to bathe in the pool.

 

B. On August 53, 1950, about midday, two children about nine years old named Valerie Dolman and Moshe Alters, entered the grounds of the plant, and scent down to bathe in the pool. These children had been warned once before not to come and bathe in the pool, but they paid no attention to that warning, and from the manner in which they surreptitiously crept into the grounds of the plant it was plain that they had the prohibition in mind. Close to half-past-three in the afternoon the dead bodies of these two children were taken out of the water, one holding the other's hand. The cause of death, as determined by the doctor who examined the bodies, was drowning.

 

C. Against this background the appellant was prosecuted. convicted and sentenced, as I have said.

 

3. The learned District Court judge held that the children were trespassers when they came to bathe in the pool, but considered that this fact did not exempt the appellant from criminal liability towards them. After reviewing the development of the case-law concerning negligence in the law of torts, he came to the conclusion that according to English law as it stands at present (that is to say, after the judgment in the Excelsior case (2), which will be referred to later) a person is under a civil liability even towards a trespasser, as long as he, whether by an act or by an omission, acts negligently to the extent of lack of consideration (in the words of the learned judge, "a mood of 'I don't care' "), and that that test must also be applied ashen we are enquiring whether the elements of the offence set out in section 218 are present. In the present case, therefore, the appellant, knowing of the danger awaiting children who bathe in the pool, took no sufficient steps to keep them away from the place and to prevent them going down to the pool. He thus acted negligently indicating "a mood of 'I don't care' ". The criminal liability stated in section 218, therefore, applies to him.

 

4.. Section 218 provides that : -

 

"Any person who by want of precaution or by any rash or careless act, not amounting to culpable negligence, unintentionally causes the death of another person, is guilty of a misdemeanour and is liable to imprisonment for two years or to a fine of one hundred pounds."

           

            From this section it is clear that the principal elements of the offence are twofold, namely: (a) causing death unintentionally, by (b) a want of precaution not amounting to culpable negligence.

            It does not say just "want of precaution", but "want of precaution not amounting to culpable negligence." It follows that the prosecution does not have to prove a high degree of negligence, felonious negligence, but that it is sufficient to prove want of precaution amounting to a slight degree of negligence. But the problem here is not the degree of negligence required to create the offence, but rather the question, in relation to whom is a person obliged to act with caution not amounting to negligence, and for the death of what class of persons will he be accountable under section 218 if he has not so acted cautiously towards them. Putting it another way, does section 218 set out in full all the elements of the offence stated in it, or is there one additional element, which is not expressly mentioned in it, because it is taken for granted and is in the very, nature of things.

           

5.  Section 218 has no counterpart in English criminal law, and we cannot, therefore, avail ourselves of the essential principles laid down in that law. But there are many precedents in English law concerning the civil liability involved in a person's negligence. It will not be entirely superfluous therefore to compare the substance of that same civil liability with the substance of the criminal liability stated in section 218, so as thereby to clarify and ascertain whether they differ from one another, and if they do, what is the difference between them insofar as the principle to be derived from them is concerned. .

 

6. One fundamental principle runs like a golden thread through the long line of English judgments dealing with the civil liability of a person for his neighbour's injuries. That principle is that liability depends on the duty that a person owes to his neighbour to take care, and that the duty imposed on a person in relation to a trespasser is not as heavy as that in relation to a licensee or invitee. In the case of Grand Trunk Railway Co. of Canada v. Barnett (3), before the Privy Council, which dealt with the rights of a trespasser who had been injured while travelling on a railway, Lord Robson said (at p. 369) :

 

            "The railway company was undoubtedly under a duty to the plaintiff not wilfully, to injure him; they were not entitled, unnecessarily and knowingly, to increase the normal risk by deliberately placing unexpected dangers in his way, but to say that they were liable to a trespasser for the negligence of their servants is to place them under a duty to him (the trespasser) of the some character as that which they undertake to those whom they carry for reward. The authorities do not justify the imposition of any such obligation in such circumstances."

           

            In the case of Latham v. Johnson (6), the question was this: what is the liability to the public of a landowner who allows the public, young and old, to pass over his land and to play on it. Farwell L.J., dealing with this question, cited with approval (at p. 405) the following words of Willes J., in the case of Gautret v. Egerton (18):-

           

            "To bring the case within the category of actionable negligence, some wrongful act must be shown, or a breach of some positive duty; otherwise, a man who allows strangers to roam over his property would be held to be answerable for not protecting them against any danger which they might encounter whilst using the licence."

 

            And if the extent of a person's liability towards a licensee is restricted within those bounds, how much more so towards a trespasser. It should be noted that at the end of his remarks (at p. 407), Farwell L.J. comes to the conclusion that the extent of a landowner's liability towards a child is no greater than his liability towards an adult.

           

7. In his judgment in the case of Latham v. Johnson (6), Hamilton L.J. divides the persons who come on to a man's premises into three categories, from the point of view of the latter's liability towards them. They are : invitees, licensees and trespassers. "The lowest", adds Hamilton L.J., "is the duty towards a trespasser. More care, though not much, is owed to a licensee - more again to an invitee."

 

8. The case of Hardy v. Central London Railways Co. (8) also dealt with the question of a landowner's liability towards a child trespasser who had been injured, and the following are short quotations from the remarks of the judges who sat in that case : -

 

Bankes L.J. : "If the plaintiff was a trespasser then he has no right of action, as there is no evidence of any allurement (placed there) with malicious intent to injure."

 

Warrington L.J. : "Once the conclusion is arrived at that the plaintiff was a trespasser, the judgment of the Court ought to be in the defendant's favour."

 

            Scrutton L.J. in unequivocal language makes clear what had only been hinted at in other places. The learned Lord Justice said : -

           

            "If the children were trespassers, the landowner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure them, but (the landowner) was under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of his business. Against those he was under no obligation to guard trespassers.''

 

9. In the case of Robert Addie v. Dumbreck (9), Lord Hailsham divides the persons that come to a man's premises into three classes, just as Hamilton L.J. did in Latham v. Johnson. (6), namely, invitees, licensees and trespassers; and after dealing with the onerous nature of the duty imposed upon the landowner towards the first two classes and the extent of the care that he is bound to take towards them, he comes to the third class and says (at p. 865) : -

 

            "Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least same act done with reckless disregard of the presence of the trespasser.''

 

10. Viscount Dunedin, too, spoke in the same spirit in his speech in the same case (at pp. 370, 371). In answer to the argument put forward there, that a person is obliged to fence his land, he lays down (at pp. 879, 878) that : -

 

            "There is no duty on a proprietor to fence his land against the world under sanction that, if he does not, those who come over it become licensees..... But when n proprietor protests and goes on protesting; turning away people when he meets them. . . . . and giving no countenance in anything that he does to their presence there, then I think no Court has a right to say that permission must be implied."

 

            The same learned judge as well does not see any difference between a child trespasser and an adult. The following are his words on this point (at p. 376) :-

           

            "The truth is that in cases of trespass there can be no difference in the case of children and adults, because if there is no duty to take care that cannot vary according to who is the trespasser."

 

11.       I do not think (as the learned judge in the court below thought) that the judgment in the case of Excelsior Wire Rope Co. v. Callan (2) reversed the principle expressed distinctly and in such clear language in the precedents cited. In the Excelsior case (2), it appears that two children, brother and sister, were injured on a plot of ground occupied by the defendant company, while playing with a pulley-wire which was used for moving goods wagons and was operated by a dynamo machine situated at a distance from the spot. The children of the neighbourhood were in the habit of playing on that plot of land, and the company's servants did not drive them away from the land except when they were about to work the dynamo machine and set the wire in motion. On the day of the accident also the company's servants so acted, but because of the great distance between the place where the machine stood and the place where the wire was stretched, the servants did not notice that the children had returned and come to play with the wire after they had been driven away from there. On the basis of those facts, Lord Buckmaster stated that : -

 

            "It was therefore well known to the appellants that when this machine was going to start it was extremely likely that children would be there and, with the wire in motion, would be exposed to grave danger.

           

            "In such circumstances the duty owned by the appellants, when they set the machinery in motion, was to see that no child was there, and this duty they failed to discharge."

           

            Viscount Dunedin in the same case repeats the essence of what he had previously said in Addie's case (9), and although he assumes that the children were trespassers, he comes to the conclusion that nevertheless the company must pay damages because it acted - in the language of Lord Hailsham in Addie's case (9) - "with reckless disregard of the presence of the trespasser", or, in the language of Viscount Dunedin himself in the same case - "an act so reckless as to be tantamount to malicious acting. "

           

            From these dicta it is clear that in the Excelsior case (2) the House of Lords did not intend to decide in opposition to the principles laid down by it and by other courts in previous cases as the learned judge thought in the present case, but on the contrary, the Excelsior case (2) serves as one more link in the long chain of judgments determining the liability, or absence of liability, of a landowner towards the various classes of people entering on his land, and the feature common to them all, namely, that towards trespasser there is no duty on the owner of land, apart from the duty not to do a positive act, with malicious intention or out of reckless lack of consideration of the fact of the trespasser being on the land.

           

12. The case of Mourton v. Poulter (10), was also decided according to the principles laid down in the precedents cited, and does not depart from them to the right or to the left. Scrutton L.J. says in the same case (at p. 191) : -

 

            "The liability of an owner of land to trespassers does not arise where there is on the land a continuing trap. . . . . There, as the land remains in the same state, a trespasser must take it as he finds it, and the owner is not bound to warn him. That, however, is a different case from the case in which a man does something which makes a change in the condition of the land, as where he starts a wheel, fells a tree, or sets off a blast when he knows that people are standing near. In each of these cases he owes a duty to these people even though they are trespassers to take care to give them warning."

 

13. From this group of cases, therefore, one rule, brief and clear, can be deduced: a landowner is not obliged to guard his trespasser or to warn him against any form of danger, apparent or concealed, found on his land. But the moment he proposes to do some act which involves a change in the state of the land and an increase of the danger, the duty is imposed on him, towards trespassers as well, to take reasonable care and to inform them of the change about to take place on the land. In every other case, to use the language of Lord Robson in Grand Trunk Railway Co. v. Barnett (3), "a man trespasses at his own risk".

 

14. That is the English rule in the law of torts, now as always, and it has remained so without any alteration until this day (see the two recent judgments on this point: Buckland v. Guildford Gas, Light & Coke Co. (11), and Edwards v. Railway Executive (12)).

 

15. Before passing to the question to what extent these English principles can serve as guides to the solution of the problem before as, let us linger for one moment only over the question in what way the rules of civil negligence are distinguishable from the rules of criminal negligence in English common law. The Court of Criminal Appeal considered this question thoroughly in the case of R. v. Bateman (13) in which Lord Hewart L.C.J. defines the distinction thus (at p. 10) : -

 

            "If A. has caused the death of B. by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A. owed a duty to B. to take care, that the duty was not discharged, and that the default caused the death of B. To convict A. of manslaughter, 'the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A.'s negligence amounted to a crime."

 

            Further on in the same judgment he said (at p. 11) : -

 

            "In the civil action, if it is proved that A. fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. ''

           

16. From this language we gather that negligence in English law is a matter of degree : if the negligence reaches a high degree, and goes beyond the restricted framework of making good the damage and of fixing compensation between citizen and citizen, it is regarded as a criminal offence; if it does not reach this high degree, it does not posses the element of criminality, and the injured person's remedy is in damages only.

 

17. This principle was aptly expressed in the case of Andrews v. Director of Public Prosecutions (16). In that case, Lord Atkin said (at p. 47) : -

 

            "Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."

           

18. These words spoken by the English judges on the question of the civil and criminal responsibility involved in acts of negligence can, in my opinion, show us the way to the solution of the question that I posed at the opening of my judgment. In support of a charge of manslaughter by negligence in English law, you have to prove that the accused acted with negligence of the highest order, with culpable negligence, with criminal negligence which holds a man's life as of no account, and does not value the lives of members of the public, and is akin to felony. Such felony is included in the law of this country within the scope of the offence stated in section 212 of the Criminal Code Ordinance. But there is a negligence lighter than that : that is negligence that does not reach the status of felony, being of a lower degree. English law does not count this negligence an offence at all, and it provides that civil law alone shall cover it, through the payment of damages. The legislator of the Criminal Code Ordinance, 1986, on the other hand, considered even this lower degree of negligence a criminal offence - to use his language : "want of precaution . . . . . not amounting to culpable negligence" - and in transferring the basis of the negligence from English civil law to the confines of the criminal law in this country, he found a place for it in section 218.

 

19. Thus we gather that negligence of the higher degree necessary to create a felony in English law is the basis of the offence stated in section 212; whereas the misdemeanour stated in section 218 is created by a lesser degree of negligence, which suffices to support a civil claim for the payment of damages. But it is necessary to state that whether we are concerned with criminal negligence in English law, corresponding to the felony stated in section 212, or with criminal negligence regarded as a misdemeanour under section 218, corresponding to civil negligence in English law and under our own Civil Wrongs Ordinance, we should always bear in mind the words of Lord Hewart L.C.J. in Bateman's case (18) on the common elements necessary for both criminal liability and civil liability in English law. One of those elements is the duty towards the victim to take care. In the absence of such duty, you cannot pin any guilty act on the person who caused the damage.

 

20. That was what this court stated in Shvili v. Attorney- General (1), where it was laid down (at pp. 474, 475) :-

 

            ". . . . . For the purposes of the misdemeanour in section 218, it is essential to prove three elements:

(a) that there was a duty imposed on the defendant towards his victim to take precautionary measures;

(b) that the defendant did not take those measures;

(c) and that as a result thereof the death of the victim was caused."

           

            Later in the same passage, the court added this observation of great import:

           

            "It is permissible perhaps to comment by the way, that these factors are to a certain extent identical with the elements required to prove civil liability in an action arising from manslaughter by negligence in English law.''

           

            These last remarks were made obiter, for they were not in fact necessary for a decision in the case. That explains the reservation contained in the expression, "to a certain extent." In the present case, on the other hand, the question of the duty of a person accused of an offence under section 218 towards his victim is the very spirit and breath of the matter under consideration here, and in my opinion there is no escape from the conclusion to which I have arrived, namely, that no offence under section 218 is committed unless a person is under a duty to his neighbour to take care towards him and that person has not fulfilled that duty in the circumstances stated in the section.

           

21. I shall mention one more factor of greater practical importance. Generally speaking, there is no such thing as bare negligence, negligence which has not caused real damage, and a person is not punished for an act (and the same applies to an omission), although there be in it a measure of negligence, unless the law expressly provides that the same act shall be regarded as a criminal offence. Examples of offences of bare negligence are to be found in section 243 of the Criminal Code Ordinance. A person is punished for such negligence, even though it does not result in actual damage. But where the act of negligence by itself does not amount to an offence, and the law does not provide an accompanying punishment, unless it causes damage, such as causing a person's death, would it be lawful or equitable to punish the doer of the act even though no duty was imposed on him to act cautiously in relation to the victim? Let me illustrate my remarks with some examples from everyday life :

 

A. The owner of a citrus-grove had neglected to attend to his grove situated in the heart of the village. The fence is broken down, and the children are in the habit of getting into the grove in order to pick the leftovers of the fruit and to look for birds' nests amongst the foliage of the trees. Whenever he sees the children wandering about in the grounds of the grove, the owner drives them away from there, but does not close the gap in the fence. A child crept uninvited into the grove, and while climbing one of the trees, fell down and was killed.

 

B. Reuven has built a house but has not put a railing round his roof. The approach to the roof from the staircase does not entail particular difficulty, and from the roof it is easy to get into the living-rooms. Reuven has caught Shimon a number of times wandering about on the roof of the house, and has reproachfully driven him away; hut even afterwards has not put up a railing and has not sealed the entrance to the roof. One night Shimon went on to the roof with the intention of stealing and in the darkness fell down on the pavement of the street below, and his body was shattered.

 

C. Levi has dug a lime-pit inside his grounds next to the house he is building, and has not covered it. He knows that at night-time people go on to his land with the intention of stealing building materials, but in his opinion the damage he is likely to suffer does not cost as much as the wages of a night watchman, and accordingly does not put a watch on the place or even place a warning lamp there. One night, two thieves got into the building which was in the course of erection, one fell off a rotten plank that was used as a ladder to go from floor to floor and broke his neck and the other one drowned in the lime-pit.

 

            Does law or justice require that the owner of the grove or Reuven or Levi be convicted of causing death under section 218? Towards invitees or licensees coming to a person's house, he is in duty bound to act cautiously, but what is his duty in relation to a trespasser committing an offence? Why should we assume that the legislator intended to fasten a criminal offence on to the shoulders of a man, not for an act which he deliberately did to someone who came to his house to commit a crime, but for an act which was done in good faith, or for an omission, that is to say, for not taking care for the welfare and safety of the offender, and for not seeing to it that the latter could carry out his nefarious purpose in complete safety?

           

22. There is, in my opinion, only one conclusion to be drawn, namely, where the legislator makes the creation of the offence dependant, not on the act of negligence itself, but on its effects in relation to a person (and it makes no difference whether those effects are death, according to section 2l2, or any other injury, according to section 244), there can be no conviction unless it is proved, inter alia, that the defendant owed a duty to the victim to take care, and that he did not carry out that duty. This conclusion, for the purpose of the offence stated in section 218, is linked and bound to the rule considered above, namely, that the landowner owes no duty towards an offender trespassing on his land apart from the duty not to injure him by a wilful act. For if that be not so, what then is the difference between a trespasser and an invitee or licensee as regards the criminal liability of the landowner? And what is the difference between a person who digs a pit on public property and one who digs on private property for the purposes of that liability?

 

23. Passing from these general principles to the concrete case before as :

 

            The two children, victims in the "Even Ve-Sid" plant, were trespassers. This was held by the learned judge, and the finding is not open to question. The fact that they were attracted by a child's fancy to the pool in the grounds of the plant, that is to say, that there existed an allurement on the appellant's property - that fact may constitute a factor, among other factors, for the purpose of settling the question whether they came to the place as invitees, licensees or trespassers. But once the fact has been determined (as it was determined in the present case) that they came as trespassers, they must be regarded as trespassers, and there is no longer any importance attaching to the question whether the pool served or did not serve as an allurement to them. Moreover, these children were not just trespassers, that is to say, persons who caused damage from the civil point of view (like the trespasser in English law and in the law of torts of this country), but also committed a criminal offence under section 286 of the Criminal Code Ordinance, 1936. For they had been driven away once or twice from the appellant's property, and nevertheless came back and bothered and annoyed him. Had they been of punishable age they could have been criminally prosecuted. The appellant's one duty towards them was not to do an act wilfully to injure them while they were on his property. He was not obliged to fence in the grounds of the plant so that they would not get into them or even to raise the height of the walls of the pool so that they would not bathe in the waters of the pool. That being so, the blame cannot be put on to his shoulders for the accident that occurred to them.

           

24. Putting it generally, the elements required to prove the offence stated in section 218 are in my opinion not to be found here, and accordingly I think that the appeal should be allowed, and the appellant acquitted.

 

            ASSAF J.  I concur in the opinion of my learned colleague, Cheshin J., and in a few words would add that in my opinion the same result would be arrived at in Jewish law.:

           

            The Mishna in Baba Kama, page 33a reads as follows : -

           

            "If employees come to the private residence of their employer to demand their wages from him and their employer's ox gores them or their employer's dog bites them, with fatal results, the employer is not liable for damage. 1) Others, however, say that employees have the right to come and demand their wages from their employer, and that the employer is liable."

           

            In the Gemara the explanation is given that if the employer lives in the same city and the employees could have claimed their wages waiting outside his house, then they must be deemed to have entered his premises without permission, and in that case all are agreed that the employer is not liable. And if he is in the habit of staying always at home, then they must be deemed to have entered his house with permission to claim their wages, and in that case all are agreed that he is liable. When an employer was concerned of whom it was not known whether he was to be found in town or not, and his employees called him from the entrance of his premises, and he said "yes" to them - does his answer constitute the granting of permission to enter or not ?

           

            At all events, we can see from that discussion, that as regards trespassers entering the landlord's property without permission, there is no duty imposed on him.

           

            Basing himself on that discussion, Maimonides lays down in Chapter 10 of Hilchot Nizkei Mamon, Halachot 11-12 :

           

            "If one enters privately-owned premises without the owner's permission - even if he enters to collect wages or a debt from the owner - and the owner's ox gores him and he dies, the ox must be stoned, but the owner is exempt from paying damages, since the victim had no right to enter another's premises without the owner's consent. When he stood at the entrance and called to the owner, and the owner answered "yes", and then he entered and was gored by the owner's ox and dies, the owner is not liable, for "yes" means no more than 'stay where you are until I speak to you'."

 

            And in Tur Hoshen Mishpat, Article 389, the rule is laid down :

           

            "When employees have entered the employer's property to ask for their wages and the employer's ox has gored them there or his dog has bitten them, if the employer is not accustomed to go out to the market, since he cannot always be found in the market, the employer is liable for injury done to them, for they enter his property with permission; but if he is a person usually to be found in the market, he is not liable, for then they enter without permission.

           

            "And my late father, the Rosh, of blessed memory, wrote: In these days it is the usual custom for employees to enter the employer's house to claim their wages, and even if he be a man who usually goes to the market, he does not carry money about with him in his pocket, to pay the employees, therefore according to the custom he is liable."

 

            Thus Rambam and the Rosh and the Tur all lay down the principle that a man is not bound to act with care, except towards those who enter his premises with permission. That permission does not indeed have to be express, and it depends on custom, provided it is a "usual custom" which is generally practised. On the basis of the words of the Rosh, Maharshal wrote in "Yam shel Shlomo" on Baba Kama, Chapter 8, Article 28 :

           

            "Therefore the law varies according to the custom prevailing at the time, and the employer is liable even if he is a man one can usually find in the market. We see that even among various employers, although all of them live at the same time and in the same place, the law will be different, according to the usage of each particular one of them to be found or not to be found in the market place; a fortiori the law will be different according to the different customs prevailing at different times and at different places."

 

            And it is worthwhile mentioning another passage from Maharshal in the same work that is pertinent to our case:

           

            "I wonder whether there ever was a time in which the custom prevailed - a custom of Sodom - that a man would not enter the house of his neighbour without permission - even if he had some business to transact there. I think the true position is that he is called a trespasser only for the reason, and in case, that the landlord protested against his entering, and refused to accept responsibility for him - unless it was the house of a craftsman which is open for everybody to enter and where everybody is regarded as entering with permission."

           

            A fortiori that is the position in the present case, where the appellant and the employees in the place, who were under his control, continuously objected to the children bathing in the pool, and the matter was also Known to the children's parents living near the place; and he certainly did not undertake to exercise care towards them. But persons entering a craftman's house or a shopkeeper's store are considered as entering with permission and he is bound to exercise care towards them.

           

            This distinction between a person who enters with permission and one who enters without permission is the determining factor not only for the purpose of determining liability in damages, but also for the purpose of determining responsibility before God, i.e. the obligation to take refuge in one of the cities of refuge for having killed another person by inadvertence. The Rambam holds, in reliance on the words of the Gamara in Makot and Baba Kama, in Chapter 6 Hilchot Rotzeah :

           

            "If one enters another's premises without permission and the owner kills him inadvertently, he is exempt from going to a City of Refuge, for Scripture says : 'Or who chances upon his neighbour in a wood'. As a wood is an area which everybody is entitled to enter, including the victim, so the Scripture is to be applied to any such place accessible to the public; hence the law imposing that penalty applies only to a place of this kind. Consequently, if one enters a carpenter's shop without permission, and a block of wood strikes him in the face and kills him, the carpenter is exempt from taking refuge. But if he enters with permission, the carpenter must take refuge."

 

            And in Talmud Yerushalmi, Baba Kama, chapter 8, article 8, we read :

           

            "Rabbi Yossi ben Hanina said: Where a man is standing and felling trees in his yard and an employee enters to claim his wages, and a block of wood falls on him and injures him, he is liable, and if the employee dies, he is not bound to take refuge."

           

            This statement is queried there in view of a contrary opinion held by Rabbi Hiya, and the query is answered in this way. Rabbi Hiya speaks of the case where he did not see him enter, whereas rabbi Yossi speaks of the case where he did see him enter. From this, the Tosaphot rightly conclude (Baba Kama, page 32b, Hayav Be'arba'a), that even when he had seen him enter, he is exempt from taking refuge, because he entered without permission; only when he entered with permission must the owner take refuge.

           

            We see once more that towards a person who enters with permission (even if not invited), there is a duty to act with particular care, even when the owner is engaged in his usual occupation, which does not prima facie involve danger. That is not so, however, in the case of a trespasser.

           

            There is a case reported that was brought before Maharam of Lublin. On account of the attacks of the Tartars on the border districts of Poland, the inhabitants of the District of Wolyn were obliged "to keep their dangerous weapons always ready for use against them", and to receive training from time to time in firing a gun. A certain Jew was training in his courtyard, firing at a marked target on the wall of his house, when a man came into the courtyard from the market, although the non-Jewish squad commander in charge of the Jew who was training, stood outside to warn passers-by not to enter the premises. He did so here, and warned the man not to enter his premises, but the man entered, a bullet hit him and he was killed. The man who fired the shot did not know that anyone had entered; and it was clear that he had no intention of injuring him. The man who had fired the shot came before Maharam to seek a legal ruling; in such cases the person who had caused the harm was usually ordered to go into exile, to fast and to perform additional penances. Taking into account the circumstances of the case, Maharam found it proper not to send him into exile, and one of the reasons given was that the deceased had himself contributed to the result because he had been warned not to enter the place (Responsa Maharam of Lublin, 43). Although there is no complete parallel between that case and the present case, because there the owner of the premises performed an act endangering life, yet there is support, and partial authority for, the rule that a person who enters without permission, and particularly if he is warned not to enter, takes his life into his own hands and releases the other from his duty of care, and from the duty to see whether anyone is on the Premises.

           

            It is true that according to Jewish law every person is obliged to fence every place that constitutes a danger to a man's life, even of a person who enters without permission, and Rambam lays down this rule, based on sources in the Torah and in the commentaries of the sages, in Chapter 11 of Hilchot Rotseah Ushmirat Nefesh :

           

            "Making a parapet on one's roof is a positive commandment, for Scripture says: 'Thou shalt make a parapet for thy roof'. . . . . whether it be one's roof or anything else that is dangerous and might possibly be a stumbling block to someone and cause his death - for example, if one has a well or a pit, with or without water, in his yard - the owner is obliged to build an enclosing wall ten handbreadths high, or else to put a cover over it lest someone fall into it and be killed. Similarly regarding any obstacle which is dangerous to life, there is a positive commandment to remove it and to beware of it, and to be particularly careful in this matter, for Scripture says: 'Take heed unto thyself and take care of thy life'. If he does not remove dangerous obstacles and allows them to remain, he disregards n positive commandment and transgresses the prohibition: Bring no blood."

 

            However, while he "disregards a positive commandment and transgresses the prohibition: Bring no blood", he is not civilly liable for the injuries or the death of a person who entered his premises without permission, and he is also under no criminal liability, that being the great distinction between one who digs a pit on public property and one who digs on private property. A person is obviously forbidden to rear a dangerous dog within his house, unless it is held by chains of iron and tied to the permission and that dog bites him and even kills him, the owner of the dog is exempt from liability towards him (Shulhan Aruh, Hoshen Mishpat, 409). Save for a person who enters a craftman's house, it being customary to enter his house for his craft, for he enters with permission (see the observation of Riva, quoted in the early commentaries and in Tur Hoshen Mishpat, Article 421), "even though he enters for nothing (with no intention of buying ?) the shopkeeper is liable, for he had to guard the life" of the person who entered (Haprisha, ibid). 1

 

Appeal allowed. Conviction and sentence set aside.

Judgment given on February 12, 1953.

 


1) For text of s. 218 see infra, p. 216.

1) Criminal Code Ordinance, 1936, section 212:

Manslaughter:

212. Subject to the provisions of section 214 of this Code, any person who by an unlawful act or omission causes the death of another person is guilty of a felony. Such felony is termed manslaughter

 

1) Lit. "for ransom money" 

Ports and Railways Authority v. Zim Integrated Shipping Services, Ltd.

Case/docket number: 
CA 4530/91
Date Decided: 
Tuesday, October 10, 2000
Decision Type: 
Appellate
Abstract: 

Facts: The present case raises the question of liability for damage caused during the course of pilotage of a ship.  A ship and a dock were damaged during the course of the pilotage of a ship in the dock.  The owner of the Ship, Zim Integrated Shipping Services, Ltd. repaired the damage that was caused to the Ship, and demanded that the Ports and Railways Authority reimburse it for the cost of the repair.  The owner based the demand on the negligence of the Ports and Railways Authority and the negligence of the pilot for whose actions it was claimed the Ports and Railways Authority bore vicarious liability.  The two central questions that were addressed were: do the owners of a ship have a cause of action against the employer of a pilot who caused damage to a ship in the course of piloting in the area of a port? And, if so, how is the liability to be distributed between the owners of the ship and the pilot’s employer if the damage was caused by the joint fault of the pilot and the ship’s crew.  The District Court imposed two thirds of the liability for the damage on the pilot, and the remaining third on the captain.  The court, based on vicarious liability attributed the liability of the pilot to the Ports and Railways Authority and the liability of the captain to Zim.  The practical ramification of this distribution is that Zim’s suit against the Ports and Railways Authority was successful only in part and the Ports and Railways Authority was required to pay Zim two thirds of the cost of repair of the ship.  The Ports and Railways Authority appealed this decision.

 

Held:  The Court partially allowed the respondent’s appeal.  The court determined that the Ports and Railways Authority alone is liable to Zim by way of vicarious liability for the pilot’s negligence.  However, the pilot, were he to be sued to compensate Zim for the damage caused to the Ship, would only be obligated, given the contributory negligence of the captain, for half the damage.   Therefore, the Ports and Railways Authority is only obligated to compensate Zim for half of the damage.  The appellants were ordered to pay the respondent’s fees in the sum of NIS 30,000.

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

 

 CA 4530/91

Ports and Railways Authority

v.

Zim Integrated Shipping Services, Ltd.

 

The Supreme Court sitting as the Court of Civil Appeals

[October 10th, 2000]

Before Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, I. Zamir

Appeal on the Judgment of the Haifa District Court (Justice T. Strassberg-Cohen) on September 1, 1991 in CC 1195/86.

Facts: The present case raises the question of liability for damage caused during the course of pilotage of a ship.  A ship and a dock were damaged during the course of the pilotage of a ship in the dock.  The owner of the Ship, Zim Integrated Shipping Services, Ltd. repaired the damage that was caused to the Ship, and demanded that the Ports and Railways Authority reimburse it for the cost of the repair.  The owner based the demand on the negligence of the Ports and Railways Authority and the negligence of the pilot for whose actions it was claimed the Ports and Railways Authority bore vicarious liability.  The two central questions that were addressed were: do the owners of a ship have a cause of action against the employer of a pilot who caused damage to a ship in the course of piloting in the area of a port? And, if so, how is the liability to be distributed between the owners of the ship and the pilot’s employer if the damage was caused by the joint fault of the pilot and the ship’s crew.  The District Court imposed two thirds of the liability for the damage on the pilot, and the remaining third on the captain.  The court, based on vicarious liability attributed the liability of the pilot to the Ports and Railways Authority and the liability of the captain to Zim.  The practical ramification of this distribution is that Zim’s suit against the Ports and Railways Authority was successful only in part and the Ports and Railways Authority was required to pay Zim two thirds of the cost of repair of the ship.  The Ports and Railways Authority appealed this decision.

Held:  The Court partially allowed the respondent’s appeal.  The court determined that the Ports and Railways Authority alone is liable to Zim by way of vicarious liability for the pilot’s negligence.  However, the pilot, were he to be sued to compensate Zim for the damage caused to the Ship, would only be obligated, given the contributory negligence of the captain, for half the damage.   Therefore, the Ports and Railways Authority is only obligated to compensate Zim for half of the damage.  The appellants were ordered to pay the respondent’s fees in the sum of NIS 30,000.

Legislation cited:

Torts Caused by Ships in Pilotage Ordinance 1939 ss. 1, 2.

Torts Ordinance [New Version], ss. 2, 11, 13, 13(A) (2) (B), 14, 35, 36, 84(A), 84(B).

Ports Ordinance [New Version] 5731-1971, ss. 13, 53.

Shipping (Sailors) Law 5733-1973, ss.1, 36.

Import and Export Ordinance [New Version] 5731-1971, s. 1.

Addition to the Law Extending the Emergency Regulations (Supervision of Sailing Vessels) (Consolidated Version) 5733-1973, r. 29.

Magella

Ports and Railways Authority Law, 5721-1961, s. 24(A).

 

Regulations Cited:

Haifa Port Regulations [January 7, 1933].

Ports Regulations 5731-1971, rr. 1, 37, 47, 47(a), 69, ch. 6.

Ports Regulations (Pilotage of Vessels in the Ports) 5724-1964.

Ports Regulations (Pilot Licensing) 5724-1964. 

Addendum to the Ports Regulations (Prevention of Collisions in the Sea) 5737-1977.

Prevention of Contamination of Sea Water with Oil (Implementation of the Treaty) Regulations 5747-1987, r. 1.

Shipping (Sailors) Regulations 5736-1976, rr. 22(A), 23.

 

Israeli Supreme Court cases cited:

  1. CA 804/80 Sidaar Tanker Corporation v. Eilat-Ashkelon Pipeline Company Ltd., IsrSC 39(1) 393.
  2. CA 542/73 Cargo Ships “El Yam” Ltd. v. Ports Authority IsrSC 30(1) 173.
  3. CA 502/78 State of Israel v. Nisim IsrSC 35(4) 748.
  4. CA 360/80 Michon LeMateh Ltd. v. Karnit-Fund for Compensation of Victims of Road Accidents IsrSC 35(2) 383.
  5. CA 22/75 Edri v. Azizian IsrSc 30(1) 701.
  6. FH 38/75 Cargo Ships “El Yam” Ltd. v. the Ports Authority IsrSC 30(2) 645.
  7. CA 817/81 Ports Authority in Israel v. Zeno (unreported).
  8. CA 469/64 Shiphart and Eskorant Genelsheft, A Ross and Kwo v. the Ports Authority in Israel IsrSC 19 (2) 207.
  9. CA 582/71 National Insurance Institute v. the Ports Authority IsrSC 27(1)650.
  10. CA 85/60 Water Works Company Ltd. v. Segel IsrSC 14 1939.
  11. CA 197/58 Eylon v. Yadi IsrSC 12 1459.
  12. CA 54/64 Peretz v. Keren Kayemeth LeIsrael Ltd. IsrSC 18(3) 387.
  13. FH 15/88 Melekh v. Kurhauser IsrSC 44(2)89.
  14. CA 1170/91 B’chor v. Yehiel IsrSC 48(3) 207.
  15. CA 145/80 Waknin v. Bet Shemesh Local Council IsrSC 37 (1) 113.
  16. CA 243/83 Jerusalem Municipality v. Gordon IsrSC 39(1) 113.

 

 

Israeli District Court cases cited:

  1. CC (Haifa) 786/87 Zim v. Ports Authority (unreported).

                                  

American cases cited:

  1. United States v. Port of Portland, 147 F. 865 (1906).
  2. City of Long Beach v. American President Lines, 223 F.2d 853 (9th Cir., 1955).
  3. National Development Company v. City of Long Beach, 187 F.Supp. 109 (1960); 70 Am.Jur. 2d sec. 443 (1987)). 

 

English cases cited:

  1. Workington Harbour and Dock Board v. Towerfield  (Owners) [1950] 2 All. E. R. 414
  2. The Esso Bernicia [1989] 1 All E.R. 37, 58-60

 

Australian cases cited:

  1. Oceanic Crest Shipping Co. v. Pilbara Harbour Services Pty. Ltd. 160 C.L.R. 626

 

Israeli books cited:

[24] Barak, Vicarious Liability in Tort Law (1964)

 

Israeli articles cited:

[25] G. Tedeschi ‘Employer Immunity and the Liability of the Employee’, Mishpatim 13 (1983) 81.

[26] Englard ‘Half a Jubilee to the Civil Torts Ordinance – Problems and Trends’ Mishpatim 5 (1973-1974) 564.

[27] D. Freedman ‘The Law of Property and the Law of Fault’ The Sussman Book (1984) 241.

[28] Gilad ‘Forty Years of Israeli Law – Chapters in Tort Law’ Mishpatim 19 (1980) 647.

[29] D. Mor ‘Liability for Defective Products – Policy Considerations’ Iyunei Mishpat 6 (1978).

[30] Y. Bahat (Buchhalter) ‘Dual Vicarious Liability for the Acts of an Employee – As of When?’ Iyunei Mishpat 4 (1975) 478.

 

Foreign books cited:

  1. R.P.A. Douglas, G.K. Geen, The Law of Harbours and Pilotage (London, 4th ed., 1993).
  2. A.L. Parks, E.V. Cattell, The Law of Tug, Tow and Pilotage (London, 3rd  ed., 1994).
  3. G. Gilmore, C.L. Black, The Law of Admiralty (New York, 2nd ed., 1975).
  4. C. Hill, Maritime Law (London, 4th ed., 1995).
  5. G.K. Geen, R.P.A. Douglas, The Law of Pilotage (London, 2nd ed., 1983).
  6. T.J. Schoenbaum, Admiralty and Maritime Law (Minnesota, 2nd ed., 1994).
  7. R.G. Marsden, On Collisions at Sea (London, 12th ed., S. Gault and others (eds.), 1998).

 

 

Foreign articles cited:

  1. G.C. Stephenson “A Pilot is a Pilot: Compulsory Pilots – Vessel Owner’s Responsibilities for Intervention and Personal Injury” 70 Tulane L. Rev. (1995-1996) 633.

 

Other:

  1. 70 Am. Jur. 2d (Rochester and San Francisco, 1987).

 

 

For the appellant—Ilan Orli.

For the respondent—Shlomo Freedman.

 

JUDGMENT

Justice I. Zamir

The Questions

 1.  This appeal raises two fundamental questions as to the law which applies to pilotage of ships within the area of a port:

[a]  Do the owners of a ship have a cause of action against the employer of a pilot (in fact, against the Ports and Railways Authority) who caused damage to a ship in the course of piloting within the area of a port?

[b]  Assuming the answer is in the affirmative, how is the liability to be distributed among the owners of the ship and the pilot’s employer, if the damage was caused by the joint fault of the ship’s crew and the pilot.

The questions stem primarily from the Torts Caused by Ships in Pilotage Ordinance 1939 (hereinafter: “the Pilotage Ordinance”).  And this is the language of the ordinance in its entirety, as it was originally (in its translation to Hebrew) and as it remained without amendment (even without a new version in Hebrew) from that day until today.

“An ordinance that imposes liability on a vessel’s owners and captains for damage caused as a result of pilotage in the ocean.

1. This ordinance shall be titled Torts Caused by Vessels in Pilotage Ordinance 1939.

   2.  Irrespective of what is said in any Ottoman law or any other law or ordinance, the owners or captain of any vessel in pilotage, whether the pilotage is compulsory or otherwise, will be liable for any loss or damage caused by the vessel or by an error in the navigation of the vessel.”

The Occurrence of the Damage

2.  The damage in this case occurred to the ship Yaffo (hereinafter – “the Ship”) at the Ashdod Port (hereinafter – “the Port”) on September 8, 1979.  That day the Ship entered the port carrying security equipment.  Due to the type of cargo, the Ship had to be turned (in an elliptical motion) and tied to the dock with its bow pointing to the exit.  This maneuver took place, as is customary, with the help of a pilot employed by the Ports and Railways Authority (hereinafter – “the Ports Authority” or “the Authority”).  The pilot was assisted by two of the Authority’s tugboats, which stayed close to the bow and stern of the Ship.  He boarded the Ship prior to its entry into the Port, and gave orders to the two tugboats and the Ship’s crew.  The captain, together with the pilot, was on the navigation bridge of the Ship, and supervised the execution of the orders that the pilot gave to the Ship’s crew.

As the Ship approached the dock it became necessary to brake its advance.  The braking was achieved by activating the motors against the direction of the sail.  The speed of braking was determined by the pilot, in accordance with the distance of the Ship from the dock.  Reports as to the distance were sent to the pilot from two sources: the one source, the workers of the Ports Authority, some of whom waited for the Ship on the dock and some of whom drove the tugboats; the second source, the Ship’s captain, based on reporting that he received from the first officer of the Ship who was at the bow of the Ship.

At a certain stage in the maneuver the pilot ordered a speeding up of the braking speed.  Half a minute after that the pilot changed the order, and ordered a reduction in the speed of the braking.  Suddenly the pilot received a report that the location of the Ship was at a distance of only 5 meters from the dock.  This distance did not fit the Ship’s speed of advancement.  Therefore, the pilot attempted to execute an emergency braking of the Ship.  But this braking also did not succeed in stopping the Ship on time.  The bow of the Ship collided with the dock.  As a result of this collision the Ship and the dock were damaged.

The owner of the Ship, Zim Integrated Shipping Services, Ltd. (hereinafter – “Zim”), repaired the damage that was caused to the Ship, and subsequently demanded that the Ports Authority reimburse it for the cost of the repair.  The reason for the demand was the negligence of the Authority and the negligence of the pilot for whose actions the Authority bears vicarious liability.  After the Authority denied the request, Zim filed suit in the Haifa District Court (in 1986).

The Proceedings in the District Court

3.  The Ports Authority defended itself from the suit with various claims.  For the purpose of this appeal, it will suffice to mention four of the claims.  First, the Ports Authority claimed that there was no negligence on the part of the pilot, as the insufficient braking speed was determined by the pilot on the basis of an erroneous report supplied by the first officer of the Ship as to the distance of the Ship from the dock.  Second, in addition to the negligence of the first officer, the collision was caused by the negligence of the captain, who blindly adopted the guidance of the pilot to reduce the braking speed, and did not fulfill his duty to employ independent discretion when authorizing such an instruction.  In this situation, according to the Authority’s claim, the relatively large contribution to the damage on the part of the first officer and the captain severed the causal link between the negligence of the pilot and the damage.  Third, even if there was negligence on the part of the pilot, the vicarious liability for this negligence is placed on Zim, which was assisted by the pilot for the maneuver, and in this framework supervised (via the captain) his actions.  Fourth, the law in Israel imposes strict liability on a ship’s owner for the damage caused to a ship or by a ship during the course of pilotage, whether the responsibility for the damage is placed on the ship or the ship’s crew or whether the responsibility is placed on another party.  The source for this law, the Ports Authority explained, is to be found in the Pilotage Ordinance.  See paragraph 1 supra.

4.  Evidence as to the details of the event was brought before the District Court.  After examining the evidence, the Court (Justice Strassberg-Cohen) decided to dismiss both the factual claims and the legal claims of the Ports Authority which countered its fundamental liability for the damage.

In the factual realm, the court found that the pilot played a part in causing the collision.  It established that the pilot did not have a good reason to reduce the braking speed immediately after he decided, in light of the nearing of the Ship to the dock, to increase the braking speed.  The pilot enabled the Ship to move at a faster speed than the speed that was necessitated by the distance of the Ship from the dock, and thereby contributed to its late stopping.  The claim, that sees the pilot as one who only assists or advises the Ship’s crew, was also dismissed.  The court ruled that during the course of the maneuver the pilot gave the Ship’s crew orders, and not advice, as to the speed of the Ship.

Despite these determinations, the District Court did not attribute full fault for the damage to the pilot.  It attributed a portion of the fault to the Ship’s captain.  According to the judgment, the captain’s fault stems from the fact that he refrained from intervening in an order that was given by the pilot to reduce the braking speed.  The captain received a report as to the real distance of the Ship from the dock, both from the first officer of the Ship and from the people on shore.  Therefore, he was capable, on the basis of the knowledge and qualifications that he had acquired, to deduce from these reports that the speed of advance that the pilot ordered is too high and may end in a collision.  He even was capable of translating this conclusion to a practical result, as the necessary status within the ship of orders given by the pilot does not take the reins of command over the ship out of the captain’s hands, which includes the ability to fix or cancel a mistaken command which is directed from the pilot to the ship’s crew.

After weighing the pilot’s fault against the captain’s fault, the District Court decided to impose two thirds of the liability for the damage on the pilot, and the remaining third on the captain.  The court translated this liability to the vicarious liability of the employers of the pilot and of the captain, and accordingly attributed the liability of the pilot to the Ports Authority and the liability of the captain to Zim.  The practical ramification of this distribution is that Zim’s suit against the Ports Authority was successful only in part, such that the Ports Authority was required to pay Zim only two thirds of the cost of repair of the Ship.

5.  To reach this result the District Court had to overcome another claim of the Ports Authority.  This is the claim which attributes liability for the entire damage to Zim, not based on the regular principles of Tort Law, but by power of a special law, which is expressed in the Pilotage Ordinance, according to which the owners of a ship bear liability for any damage that is caused in the course of the pilotage of the ship.  See supra paragraph 1.  The court accepted the Authority’s claim that the liability of a ship owner according to the Pilotage Ordinance is strict, but dismissed the claim that such strict liability prevents the suit of the owners against those who damaged the ship.  It explained this by the fact that strict liability according to the Pilotage Ordinance adds a cause of action, but does not detract from existing causes of action.  It was intended to make it easier for one who suffered damage from a ship during the course of pilotage, and to enable him to defray his full damages from the ship, without having to get into the distribution of liability between the ship’s crew and the pilot.  However, at the same time, all the other causes of action which emerge in the framework of the general law due to the occurrence of the damage continue to exist, whether to the benefit of the injured party against the tortfeasor, or whether to the benefit of the one tortfeasor against other tortfeasors.  On the basis of this determination the Court concluded that the Pilotage Ordinance does not detract from the right to sue which Zim has vis-à-vis the Ports Authority for the damage caused to the Ship.  This right, said the District Court, is founded in the general principles of Tort Law, as they were established in the Torts Ordinance [New Version], and the Pilotage Ordinance does not gnaw away at this right at all.

The Appeal

6.  The Ports Authority is appealing the judgment.  In the original appeal it challenged the determinations of the District Court on all fronts, both the factual front and the legal front.  Later, in the course of hearing the appeal, the dispute was narrowed.  The Ports Authority agreed to withdraw its reservations against the factual findings included in the judgment.  It also agreed with Zim, in order to simplify the proceedings, that the negligent conduct of the pilot and the captain was equal.

7.  After removing the factual obstacles from the pathway of the appeal, only the legal claims of the Ports Authority against the judgment of the District Court remained.  The claims are concentrated on these issues: first, the Pilotage Ordinance; second, the status of a pilot who is on a ship.  These issues, although they differ from one another, are tied to one another.  The Ports Authority does not accept the construction that the District Court gave to the Pilotage Ordinance, primarily because it disagrees as to the way in which the District Court conceived of the relationship between the owner of the ship, the captain and the pilot.  It does not agree with the approach of the District Court, which sees the primary purpose of the Pilotage Ordinance to alleviate matters for a third party who suffers damage from a ship in pilotage, but rather is of the view that the primary purpose of the ordinance is to encourage the captain of a ship to intervene in mistaken decisions of a pilot and thereby to lessen the dangers posed by pilotage.  The duty placed on the captain to supervise the pilot, stems, in the opinion of the Ports Authority, from the division of roles between the two, in the framework of which the pilot advises the captain, and the captain alone carries command responsibility.  According to the Authority’s claim, recognition of the existence of a cause of action in favor of a ship, outside of the Pilotage Ordinance, will undermine the duty of supervision placed on the captain.

This and more.  According to the Authority’s claim, to the extent that it is a matter of the tort of negligence (from which the District Court drew the liability of the Ports Authority vis-à-vis the Ship), it is not even necessary to go as far as the Pilotage Ordinance in order to deny the liability of the pilot toward the ship owner.  Since the tort of negligence is based on the existence of a duty of care, and in consideration of the hierarchical distribution of roles between the captain and the pilot, it is not proper to impose on the pilot a duty of care toward the ship owner.  Such a duty will not encourage the captain to prevent damage during the course of pilotage and will erode discipline on the ship, in the face of foreseeable conflicts over authority between the pilot and the captain.

The Ports Authority claims, alternatively, that even if a duty of care was imposed on the pilot toward the ship owner, such a duty would not have the power to justify the result reached by the District Court.  This is so, first, because vicarious liability for negligence of the pilot during the course of the pilotage is imposed on the ship owner and not on the employer of the pilot; second, since the increased duty of care of the captain increases his degree of liability, as compared with the degree of liability of the pilot, to the point of severing the causal connection between the negligence of the pilot and the damage; third, because the increased duty of care of the captain, must, at the very least, increase the liability of the captain, and impose the majority of the damages on him and not the pilot.

8.  Given the importance of a determination on these claims, which in part are coming up in this Court for the first time, the judges on the original panel considering the appeal decided to continue the proceedings before an expanded panel of judges.

9.  The cornerstone in the appeal of the Ports Authority is the claim as to the status of the pilot in the relationship between the ship owner, the captain and the pilot.  This claim may also have ramifications as to the construction of the Pilotage Ordinance.  Therefore, we will clarify it first.  For this purpose it is appropriate to first clarify the essence of pilotage and the law that applies to it.

Pilotage

10.  Pilotage was intended to assist in the movement of vessels in narrow, closed, or winding waterways.  Vessels may end up in such a path in the course of sailing (for example in straits, a channel or river) and is bound to find itself in such a path at the beginning of its sail or at its conclusion, when it sets sail from the port or is about to anchor in it.  In fact, pilotage in a port is more common than pilotage in other places.  In many countries, including Israel, pilotage only takes place in a port.  This being the case, we will limit ourselves to pilotage in a port.

The area of a port poses before a vessel, especially a large vessel, dangers unlike those in sailing in open waters: breaking waves, shoals, palisades, wharfs, other vessels, shallow waters, low tide, and more.  The success of the maneuver which is executed in these conditions is very much dependent on recognizing the territorial and weather conditions particular to one port or another.  As a result, the permanent crew of a vessel does not have sufficient knowledge and ability to cope with the particular dangers of a given port.  In many cases, the permanent crew is also lacking sufficient knowledge as to the work patterns and rules of behavior particular to a port.  Therefore, the permanent crew requires help from a skilled agent, who has proficiency in the facts that are particular to the port.  Ostensibly, such assistance can be given to vessels as it is given to aircraft, via the transmission of data and guidance from ashore.  However, in fact, this method is not sufficient for successful pilotage of vessels.  Unlike with aircraft, which is done entirely by the crew members, navigating a ship in a port is often done with the integration of people from within the ship and outside of it: the ship’s crew; operators of tugboats which are harnessed to the ship and which lead it within the port; people on shore who assist in tying the ship and undoing the tie; and more.  The need to coordinate between all these entities, which requires special knowledge and training, with the ground conditions particular to the port and the requirement for maximum precision of the movement in it, does not enable making do with remote control of the ship.  The safety of the pilotage requires direct and close guidance and supervision.  That is the role of the pilot.  The pilot who is generally a captain, who has undergone training in pilotage, is expert in data that is particular to the port.  He stays on the ship from the moment of entry to the area of the port until it is anchored at the dock, and later from the beginning of the sail until leaving the borders of the port.  During the course of the pilotage he checks the location and speed of the ship relative to other objects in the area of the port, stationary and mobile, and guides the ship’s crew, those in the tugboat and those on shore, accordingly, as to the alignment, timing, and speed of the ship.  As to the essence of the pilotage and the roles of the pilot see further in CA 804/80 Sidaar Tanker Corporation v. Eilat-Ashkelon Pipeline Company Ltd., [1] at 410-417.

11.  Pilotage duties and the status of the pilot are regulated in various countries by an extensive system of statutory law, including special laws.  See, for example, in England, the Pilotage Act 1987.  On the other hand, in Israel, there are no more than a few statutory provisions in these matters: the Pilotage Ordinance, which deals with liability for damage caused during pilotage, and two sections of the Ports Ordinance [New Version] 5731-1971, which establish a duty of licensing of pilots (section 13) and offenses of pilots (section 53).  The rest of the matters which relate to pilotage were left to regulations.  The first topic which was regulated in the regulations, still in the Mandate period, was the duty to be assisted by pilotage services in the area of the port.  See the Haifa Port Regulations (January 7, 1933).  The regulations have been improved from time to time and were applied to additional matters.   Today, the sixth chapter of the Ports Regulations 5731-1971 is dedicated to pilotage.  This chapter includes provisions as to competence of pilots, licensing of pilots, the duty of pilotage and clearing the way for a ship in pilotage.  These provisions, like the rest of the provisions in the Ports Regulations, apply only in the realm of the Haifa Port, the Ashdod Port, and the Eilat Port.  See the definition of “port” in regulation 1 of the Ports Regulations.  The pilotage in other ports is regulated, to date, in previous regulations: Ports Regulations (Pilotage of Vessels in the Ports) 5724-1964, and Ports Regulations (Pilot Licensing) 5724-1964.  See further, as to all the ports, regulation 29 to the Addendum to the Ports Regulations (Prevention of Collisions in the Sea) 5737-1977.

The arrangement that was established in the law and the regulations as to the duty of pilotage and the status of the pilot generated criticism.  The criticism pointed to the fact that the arrangement is outdated and does not coordinate with the developments that have occurred in the field of maritime, that it leaves important questions without an answer and that as a result of the deficiencies in the legislation there is occasionally a lack of accord between law and practice.

The criticism led to the establishment of two committees for examining the law of pilotage in Israel.  The first committee was appointed by the Minister of Transportation in the mid eighties and presented a report in 1990.  It found deficiencies in the legislation which relates to pilotage, and recommended a series of amendments in various areas, including on the question of liability for damages in the course of pilotage.  It was of the view, in contrast to the existing situation, that it would be proper to establish primary arrangements as to pilotage in primary legislation.  But the recommendations of the committee were not implemented.

In 1994 the Minister of Transportation appointed a second committee to re-examine the same matter.  This committee also found various topics requiring amendment, including liability of the pilot for damages in the course of pilotage.  However, even though the committee’s recommendations were submitted to the Minister already in 1994, to date there has still not been a decision made in the Ministry of Transportation to adopt them.

The recommendations of the two committees were formulated after thorough and comprehensive work, including comparison of the laws in other countries.  They point in a clear and convincing manner to the need to change the outdated law, which has gone almost entirely unchanged for decades, and to adapt it to the situation on the ground that has developed steadily.  Freezing the law weighs down the activity in the ports and also, as the present case proves, determinations in conflicts which stem from pilotage.

The present case, which raises the question of liability for damage caused during the course of pilotage, exemplifies the need for change in the legislation.  This question should have been answered in the framework of the Pilotage Ordinance from 1939 which deals, as its name indicates, with “torts caused by ships in pilotage”.  However, in fact, the answer provided in the Ordinance to this question is partial and opaque.  The shortcomings of the Pilotage Ordinance were described in the report of the two committees which examined the issue of pilotage.  But despite the recommendations of those committees the Ordinance has not, to date, been amended.  If the recommendations had fallen on attentive ears, it probably would have simplified and shortened the proceedings in the present case.  However, as the recommendations have not been addressed, and the Pilotage Ordinance has been left unchanged, the court has been left with the task of clarifying what the Ordinance states and filling in what the Ordinance has left lacking as to liability for damage caused during the course of pilotage.

A preliminary question to this end, which has no answer in the legislation, relates to the essence of the relationship between the pilot and the captain of a ship.

Pilot and Captain

12.  Pilotage places the captain of a ship in an unusual situation.  The captain is the commander of the ship.  His authority to give orders on the ship gives him responsibility for every act and omission on the ship.  This responsibility assumes that the captain has the knowledge and ability in all areas of operation of the ship.  Therefore, he can supervise what occurs on the ship, guide the ship’s crew and prevent errors by any person operating the ship.

This presumption is corrupted in the case of pilotage.  The need for the services of an external pilot stems from the inability of the ship’s crew, including the captain, to pilot the ship independently.  As a result, a difficulty is created in subordinating the pilot to the command of the captain: since the pilot is more expert and more qualified than the captain in pilotage, whether and when is it to be required of the pilot to comply with commands given by the captain as relates to pilotage? Whether and when is it to be expected that the captain interfere in orders given by the pilot relating to pilotage?

These questions have been dealt with more than once by courts overseas.  Generally, they have avoided the extreme position which imposes responsibility for the pilotage only on the pilot or only on the captain, and have defined the relationship between the captain and the pilot as a relationship of cooperation and reciprocity.  In this type of relationship, the authority and responsibility for pilotage is divided between the captain and the pilot.  However, the authority and responsibility for pilotage are not equally divided.  The authority of the captain, and as a consequence his responsibility, need to take into consideration the priority that the pilot has in terms of the expertise that is required for pilotage.  Therefore, the authority and responsibility of the captain must be limited to unusual circumstances.  So too, the authority and responsibility of the pilot, while justified in terms of the expertise required for pilotage, must take into account the special status of the captain as the commander of the ship.  As the commander of the ship the captain has close familiarity with the ship’s crew and the ship’s systems, and it gives him information the pilot does not have as to the technical and human abilities and limitations of the ship, which may influence executing the pilotage.  Therefore the authority and responsibility of the pilot is to be limited to circumstances which do not jeopardize the command status of the captain and do not ignore the special knowledge and experience he has regarding the ship.  The right integration of the various considerations leaves the pilot a wide range of discretion in piloting the ship, and with that preserves the captain’s ability to intervene in this discretion in unusual cases, in which the behavior or decision of the pilot appear to the captain to be dangerous or especially erroneous.  In any case, even if the captain decides not to interfere in a decision made by the pilot, he still must alertly follow the pilot’s functioning, and pass on to him any information necessary to ensure that the ship’s crew fulfills the pilot’s orders and draw the pilot’s attention to any mistake in pilotage.  This was the approach of the courts in England and the United States already in the 19th century, and this is also the accepted approach in various countries in case law and legislation, until today.

(See R.P.A. Douglas & G.K.Geen, The Law of Harbours and Pilotage (London, 4th ed., 1993) 199-220[31]; A.L. Parks & E. V. Cattell, The Law of Tug, Tow and Pilotage (London, 3rd ed., 1994)[32] 1008-1010; G. Gilmore & C.L. Black The Law of Admiralty (New York, 2nd ed., 1975) [33] 597-598; C. Hill Maritime Law (London, 4th ed., 1995) [34] 512; G.C. Stephenson ‘A Pilot is a Pilot: Compulsory Pilots - Vessel Owner’s Responsibilities for Intervention and Personal Injury’ [38] 633, 635-636.)

13.  The right reserved to the captain to intervene in decisions of the pilot must be used with great restraint and care.  There are two reasons for this.  The first reason is the proficiency of the pilot.  For this reason the captain must exercise extra caution before deciding to give preference to his opinion over the opinion of the pilot, all the more so when he seeks to take the piloting reins from the pilot and pilot the ship himself.  The second reason lies in the confusion that contradictory commands sow among the ship’s crew.  A central condition for the success of the operation of the ship, including pilotage, is the certainty of the ship’s crew as to the source authorized to give commands on the ship.  Interference by the captain in the pilot’s orders may sabotage this certainty.

With that, in extreme cases, the captain’s right to intervene not only justifies his intervention but may also demand such intervention, and imposes liability on the captain for failure to intervene.

14.  Is the formula for the relationship between a captain and a pilot similar in Israel to the accepted formula in other countries?  The District Court, after examining the law and hearing evidence answered this question in the affirmative and stated as follows:

“Pilotage is placed – both by law and in fact – in the hands of the pilot, the port person, and his status is not the status of an advisor alone.  His orders are commands which the ship’s people follow while it is in pilotage.  Despite this, this status does not neutralize the status and responsibility of the captain.  The captain does not let the reins of command of the ship out of his hands, and he has in his power and in the knowledge he is favored with, enough to enable him to intervene when necessary.”

The Ports Authority, the appellant, does not accept this determination.  In its view, the pilot does not have practical authority on the ship, and only has the status of advisor to the captain.  It claims that this is the law not only in Israel but also outside of Israel.

But the Ports Authority errs as to the law outside of Israel.  In many countries, in particular in common law countries, which serve as a central source of inspiration for pilotage law in Israel, the captain and the pilot divide between them authority and responsibility for pilotage.  The Ports Authority relies, inter alia, on a report (from 1911) of a committee that was appointed in England in order to examine the subject of pilotage.  One of the recommendations of the committee was that the law define the legal relationship between the captain and the pilot in a manner that will increase the authority of the captain.  However, in contrast to the impression that the Ports Authority is creating, this recommendation was not accepted by the English legislature and was not implemented, not in the Pilotage Law of 1913 (that was legislated pursuant to the committee’s recommendations) and not in later incarnations of this law.  (See Douglas and Green, paragraph 12 supra, [31] at pp. 162, 201-203).  Moreover, even the committee in England did not seek to reach the situation the Ports Authority is headed toward, meaning expropriating control of the pilotage of the ship from the pilot.  All that was recommended was to increase the (parallel) control of the captain over the pilotage, with the goal of encouraging him to intervene in the pilotage.  (See G.K. Geen & R.P.A. Douglas, The Law of Pilotage (London, 2nd ed., 1983) [31] at 81).

Does the law in Israel deviate from the accepted approach throughout the world?  The Ports Authority hangs on to two provisions in the Ports Regulations 5731-1971, which show, in its view, that in Israel the pilot is no more than an advisor to the captain.  The first provision is in sub-regulation 47(a).  The sub-regulation established the duty of pilotage in the port:

“A captain will not bring a vessel into the port and will not remove a vessel from the port, and will not tie mooring gear or detach it and will not execute any other maneuver with a vessel in the port, unless there is a pilot on the vessel with whom he is consulting.”

The Ports Authority emphasizes “consulting”.  In its view, that is the essence of the relationship between the captain and the pilot.

The second provision is found in regulation 69.  This regulation defines the duties of the captain during mooring at the port:

“A captain of a vessel will prevent any damage that may be caused to the dock or to any other structure in the port as a consequence of pilotage, mooring, or fettering of a vessel, or during loading or unloading.”

According to the claim of the Ports Authority imposing the duty to prevent damage during pilotage on the captain alone, and not on the pilot as well, means that the pilot is not in charge of pilotage, but only assists the captain with advice.

I believe that the Ports Authority has gone too far in the conclusions it draws from the two regulations.  These regulations were not meant to regulate the relationship between the captain and the pilot.  They deal with matters which have no connection to this relationship: the duty of a ship to be assisted by a pilot (regulation 47) and the duty of care of a captain toward the port (regulation 69).  Therefore, it is not proper to build castles on these regulations regarding the relationship between the captain and the pilot.  It is to be presumed that the formulator of the regulations, if indeed he wanted to establish anything as to this question would reveal his intention in a more detailed and explicit manner.  In any event, the conclusions of the Ports Authority are not even necessitated by the regulations themselves.  Sub-regulation 47(a) which deals with the advice that the captain receives from a pilot does not rule out the possibility that this advice has binding status on the ship.  Indeed, there is nothing preventing the advice of the pilot having the character of a command, as long as the captain has decided not to make use of his (rare) authority to give a contradictory command.  As Justice Berinson explained in CA 542/73 Cargo Ships “El Yam” Ltd. v. Ports Authority [2] at 178:

“In theory, even when a ship is in pilotage the pilot is merely the advisor of the captain and the final responsibility for piloting the ship does not fall out of the captain’s hands.  In fact, during the normal course of events, he need not do more than listen to the ‘advice’ of the pilot and fulfill it.”

Justice Netanyahu said similar things in the Eilat – Ashkelon Pipeline case [1] at 406-407:

“He [the pilot] does not replace the captain but only advises him, although taking into consideration the proficiency unique to him, this is advice that is to be taken, but the captain remains responsible, and in unique and exceptional cases is entitled to act in contradiction of the advice.”

Even regulation 69 which requires the captain to prevent damage to the port’s structures, does not state that the pilot does not bear a similar duty.  The duty of a pilot to prevent such damage does not require a legislated provision, as in Israel the pilot is a port employee, and thus is required to act with care with his employer’s property.

Moreover, as opposed to the regulations presented by the Ports Authority as a sign that the pilot does not have authority in pilotage of a ship, a series of laws and regulations can be pointed to which specifically support the status of the pilot as the holder of authority on the ship.  Thus, for example, when the legislator had to, on a number of occasions, define the term “shipmaster”; he took care to exclude the pilot from the definition (which focuses on control or command of a vessel).  See section 1of the Shipping (Sailors) Law 5733-1973; Section 1 of the Import and Export Ordinance [New Version] 5739-1979; section 1 of the Addition to the Law Extending the Emergency Regulations (Supervision of Sailing Vessels) (Consolidated Version) 5733-1973; regulation 1 of the Ports Regulations 5731-1971; regulation 1 of the Prevention of Contamination of Sea Water with Oil (Implementation of the Treaty) Regulations, 5747-1987.  If the Ports Authority is correct in the claim that in any event the pilot does not have status to issue commands on a ship, why did the legislator find it necessary to exclude the pilot from the definition of a commander of a vessel?  Additional proof against the Ports Authority is found in the Shipping (Sailors) Regulations 5736-1976.  Regulation 22(a) of these regulations requires that one who serves as a shipmaster of a vessel will have certain certification.  But regulation 23 establishes an exception to this.  It says: “regulation 22(a) will not apply to the service of a pilot certified for vessels, when the vessel is required, by any law, including foreign law, to make use of his service, and the pilot has responsibility for navigating the vessel”.  This is a clear statement, which attributes to the pilot, at least if it is compulsory for him to be on the ship, responsibility for pilotage.

15.  Since the text of the legislation does not support the approach of the Ports Authority as to the status of the pilot, the question is to be asked whether there is a substantive reason which supports this approach.  The Ports Authority presents two such reasons.  First, it claims, recognition of the authority and responsibility of the pilot weakens the willingness of the captain to take precautionary measures during the pilotage and thereby increases the danger posed by the pilotage.  I do not accept this claim.  As has already been said, the authority and responsibility of the pilot do not come at the expense of the authority and responsibility of the captain, but only complement it.  The captain, even when he brings a pilot aboard the ship, does not absolve himself of any duty of care which generally applies to the shipmaster of a ship, including the duty to monitor orders coming from the pilot and the duty to examine the degree of accord of the orders with the reality on the ground.  The captain who is assisted by a pilot also does not absolve himself of the duty to intervene in a particularly dangerous or clearly erroneous decision of the pilot.  Indeed, recognition of the authority and responsibility of the pilot may discourage the captain from intervening in borderline cases, when he is not convinced of the error of the pilot.  But, such discouragement is intended and welcome, in light of the professional advantage of the pilot over the captain in all that relates to pilotage.  See paragraph 12 supra.

The second reason is the fear of creating dual authority over the ship.  Dual authority brings on contradictory commands, and contradictory commands destroy the certainty and discipline on the ship.  However, the solution that the Ports Authority provides to prevent splitting the authority, meaning, denying the pilot’s authority, is not the only solution to be considered.  Another possible solution is limiting the (residual) authority of the captain.  Such limitation prevents contradictory commands during the routine course of pilotage, and at the same time ensures the intervention of the captain in exceptional cases, when the proximity or magnitude of the danger justifies the price entailed in contradictory commands.  This solution is preferable to the solution of the Ports Authority, as it gives weight to the proficiency of the pilot and enables gleaning from it the maximum benefit during the normal course of events.

16.  In conclusion, in Israel, as in other countries, the pilot, in particular if his services are imposed on the ship, is not just an advisor to the captain.  He carries operational authority as to pilotage.  The orders he gives obligate the ship’s crew.  Excluding exceptional cases, they also obligate the captain.  This being the case, the pilot bears responsibility for pilotage.  This responsibility obligates him to execute the pilotage with care.  The responsibility of the pilot does not stand alone.  Alongside it there is the responsibility of the captain.  This responsibility stems from the roles placed on the captain during the course of pilotage: to assist the pilot, to ensure that his orders are implemented, and to intervene in his decisions if they display special danger.  The captain also must fulfill these roles with care.

17.  The roles that are imposed during the course of pilotage, on the pilot on the one hand and the captain on the other hand, and in any case distribution of responsibility which is derived from these roles, do not necessarily match the degree of liability of the captain and the pilot for damage caused as a consequence of pilotage.  In the area of pilotage, the translation of authority and responsibility to liability in torts is not simple, as the distribution of liability in torts involves additional considerations, which are not tied to the division of roles among those causing the damage.  It would have been possible, in order to understand the significance of these considerations to hold a separate hearing on the question of the relative liability of the pilot and the captain.  However the Pilotage Ordinance, which is a central source in Israel for establishing liability as a consequence of pilotage, does not take that route.  It regulates the liability of the captain together with the liability of the ship owner, and imposes on both of them equal degrees of liability.  The reason for this is rooted, it appears, in the vicarious liability of the ship owner for the actions of the captain.  Since the liability is routed, in the end, to the ship owner, it is preferable to examine the distribution of liability from the perspective of the relationship between the pilot and the ship owner.  We will now turn to that question.

Pilot and Ship Owner

18.  The ship owner, as distinguished from the captain, is not on the ship at the time of pilotage, and does not have the necessary proficiency to execute the pilotage. Therefore, according to the general law, it is not possible to hold the ship owner personally liable for torts which occur during the course of the pilotage.  On the other hand, the ship owner is the captain’s employer, and therefore has vicarious liability for torts that the captain carries out during the course of his employment.  See section 13 of the Torts Ordinance [New Version].  See also section 36 Shipping (Sailors) Law 5733-1973.  However, does the ship owner also have vicarious liability for torts carried out by the pilot?

Vicarious liability, according to the Torts Ordinance, is conditioned on the existence of an employment relationship or agency relationship between the tortfeasor and the one on whom liability is being imposed.  See sections 13-14 of the Ordinance; CA 502/78 State of Israel v. Nisim [3] at 753-754.  Does such a relationship exist between the ship owner and the pilot?  When this question is examined against the background of the Torts Ordinance, we find the Ordinance relates differently to the two types of pilots: on the one hand, a pilot whose services the ship owner, himself or via the captain, uses on his own initiative or by his own free will (hereinafter – “voluntary pilot”); and on the other hand a pilot whose services the ship owner is required to use, and has no control over the choice of the pilot (hereinafter – “compulsory pilot”).  The difference in relating to the two types of pilots is expressed in section 13(a)(2)(b) of the ordinance which absolves “one who was forced by law to use the services of a person the choice of whom  is not given to him” from liability for the act or omission of that person.  The language of the section is clearly limited to a compulsory worker and this includes a compulsory pilot, and does not encompass a voluntary pilot.  The legislative history of the section points to the fact that its purpose was to apply the common law rule that absolves ship owners from vicarious liability for a compulsory pilot, in Israel.  (See G. Tedeschi ‘Employer Immunity and the Liability of the Employee’, [25] at 94-96). Indeed, today, such immunity, which stems from the common law, is given to ship owners in the United States.  (See Parks & Cattell [32](supra paragraph 12) at pp. 1023-1025; Gilmore & Black [33] (supra paragraph 12), at p. 520; 70 Am. Jur. 2d sec. 443 (1987) [39]).

Were section 13(a)(2)(b) of the Torts Ordinance to stand alone, it would, in accordance with a construction based on its text and purpose, be sufficient to almost entirely preclude the attribution of vicarious liability to ship owners for acts and omissions of pilots.  This is so, because pilotage in Israel is primarily carried out based on a duty imposed in regulation 47 of the Ports Regulations 5731-1971 and the identity of the pilot is determined by the Ports Authority, the pilot’s employer.  However, section 13(a)(2)(b) is not the only piece of legislation which deals with vicarious liability of a ship owner for the pilot.  Another piece of legislation on the same matter is the Pilotage Ordinance.  The Pilotage Ordinance obligates the ship owner (together with the captain) to pay for damage caused during the course of the pilotage of the Ship, even if the pilotage was compulsory.  This obligation appears in section 2 of the Ordinance, which says as follows:

“Despite all that is said in any Ottoman law, or in any other law or ordinance, the owners or the captain of any ship in pilotage, whether the pilotage is by compulsion or whether in another way, will be responsible for all loss or damage caused by the ship or by an error in driving the ship.”

This provision, according to its opening text, establishes an exception to the regular law that should have applied to the liability of the ship owner for damages caused in pilotage.  It also places vicarious liability on the ship owner for a tort caused by a compulsory pilot, although the regular tort law does not recognize such responsibility.  Moreover, in 1939, when the Pilotage Ordinance was passed, the liability it placed on the ship owner and the captain was an innovation, not only for a compulsory pilot, but also for a voluntary pilot.  The explanation for this was that, until 1947, which is the year of commencement of the Torts Ordinance, tort law (which was based on the Magella) did not recognize the principle of vicarious liability, and as a result vicarious liability could not be attributed to the ship owner even for a tort of a voluntary pilot.  Imposing such vicarious liability required a special law, and the Pilotage Ordinance in fact created this law, without distinguishing between a compulsory pilot and a voluntary pilot, “regardless of what is said in any Ottoman law or any other law or any other ordinance.”  This intention of the Pilotage Ordinance also emerges clearly from the explanatory notes to the proposed ordinance (Palestine Gazette 867 (16) p. 146) which state as follows:

“The ordinance was passed in order to also apply to cases where the guidance [meaning pilotage] is not compulsory, as in Palestine (the Land of Israel) the principle of ‘transferring responsibility to another’ according to which the ship owner or its captain is responsible for the act of the guide [pilot] is not recognized as there is not an explicit law to this end here.”

In the continuation of the explanatory notes it is stated that the ordinance is based on section 15 of the English Pilotage Law of 1913, which was in force at the time.  And so, this section as well, according to its text as well as its legislative history, imposes vicarious liability for acts and omissions of a compulsory pilot on a ship owner: prior to the legislation of the article (in the year 1913) it was not possible to attribute to the ship owner anything other than vicarious liability for torts of a voluntary pilot, and the owners were immune from liability for the torts of a compulsory pilot.  This immunity caused significant difficulties, and weighed heavily upon both the execution of the pilotage and managing legal proceedings related to pilotage.  Due to these difficulties various countries agreed in 1910, in the Brussels International Convention for the Unification of Certain Rules with Respect to Collision of Vessels (of 1910) to rescind this immunity (article 5 of the treaty).  A year later a national committee in England decided to adopt the approach of the treaty and change the pilotage law in England accordingly.  This recommendation was adopted in section 15(1) of the Pilotage Law of 1913, which came into force in 1918.  In accordance with the recommendation of the committee, the amendment of the law did not have the intention of imposing on the ship owner personal liability for the damage caused in pilotage, but only to rescind the immunity that owners had from vicarious liability for a compulsory pilot.  The text of the amendment clearly reflects this intent, as it only equalizes, as to owner liability, compulsory pilotage to non-compulsory pilotage.

“... the owner or master of a vessel navigating under circumstances in which pilotage is compulsory shall be answerable for any loss or damage caused by the vessel or by any fault of the navigation of the vessel in the same manner as he would if pilotage were not compulsory.”

Indeed this is also how the courts in England, including the House of Lords, understood section 15(1) of the law from the year 1913.  (See Workington Harbour and Dock Board v. Towerfield  (Owners) [1950] 2 All. E. R. 414 at 433-432 (hereinafter: “Towerfield ”)[21];  The Esso Bernicia [1989] [22] at 58-60; a similar approach was taken by the Supreme Court of Australia, when it interpreted the relevant local law, which is phrased (with minor changes which are not substantive) like section 15(1) of the English law.  (See Oceanic Crest Shipping Co. v. Pilbara Harbour Services Pty. Ltd. [23] at 644-645, 684-685).

Since the Mandatory Pilotage Ordinance was based, as the proposed ordinance shows us, on section 15(1) of the English law, there is an additional reason to see in this ordinance, as the courts in England saw in section 15(1), a source for vicarious liability of a ship owner for the tort of a pilot, even where he is a compulsory pilot.  This conclusion has two glaring consequences.  The first consequence is that the liability of the ship owner is conditioned upon the existence of liability on the part of the pilot.  This consequence stems from the essence of vicarious liability, which does not form until after the personal liability of the employee or the agent has formed.  [See CA 360/80 Michon LeMateh Ltd. v. Karnit-Fund for Compensation of Victims of Road Accidents [4] at 387; A. Barak, Vicarious Liability in Tort Law (1964)[24] 71.]  The second consequence is that the liability of the ship owner does not cancel and does not reduce the liability of the pilot toward the injured party, but is only added to it.  This consequence stems from section 11 of the Torts Ordinance, according to which the tortfeasor and the one bearing vicarious liability for the tortfeasor are seen as two who “are jointly liable for the same act as joint tortfeasors and can be sued for it jointly or severally.”  (See CA 22/75 Edri v. Azizian [5] at 707-709; CA 502/78 [3](supra) at p. 761).

19.  It can be said that the Pilotage Ordinance imposes on the ship owner vicarious liability for the tort of a compulsory pilot, even if the pilot is considered for this purpose a compulsory employee of the ship owner.  If this is so, the Pilotage Ordinance, being a specific law, establishes an exception to the provision in section 13(a)(2)(b) of the Torts Ordinance, which is a general law.  It is also possible to say that the vicarious liability of the ship owner for the tort of the pilot, by authority of the Pilotage Ordinance, is liability for the tort of an agent as opposed to an employee.  If so, such liability is consistent with the provision in section 14 of the Torts Ordinance, which establishes vicarious liability of a principal for the tort of an agent, and does not exclude a compulsory agent from the rule.  It appears that it is preferable, from among the two possibilities, to regard the pilot, for the purpose of the vicarious liability of the ship owner, as the agent of the ship owner and not the employee of the ship owner.

The El Yam Ruling

20.  In opposition to the conclusion which stems from that which is said above that the Pilotage Ordinance imposes on the ship owner vicarious liability for the tort of the pilot, there is the judgment of this court in CA 542/73 Cargo Ships “El Yam”  Ltd. v. The Ports Authority [6] (hereinafter – “El Yam”).  In the El Yam case the Supreme Court dismissed the approach as to the vicarious liability of the ship owner, and ruled that the Pilotage Ordinance imposes on the ship owner absolute (personal) liability for any damage caused in pilotage.  In that case the ship owner was sued to compensate the Ports Authority and the insurer of the Authority for damage that the ship caused during pilotage to a barge which belonged to the Authority.  The ship owner sent a third party notice to the pilot as the cause of the damage, and to the Ports Authority as the employer of the pilot.  The District Court, and following it the Supreme Court, presumed that the barge was not damaged due to the negligence of the ship’s owner, the captain or the pilot.  Without fault on which to base the cause of action for the suit it was necessary, ostensibly, to dismiss the suit.  However, despite this, the court allowed the suit.  It saw in the Pilotage Ordinance a source for the liability of the ship owner even without fault on the part of the ship’s crew or the pilot.  Justice Witkon, who wrote the main opinion, was aware of the fact that it is not necessary to interpret the Pilotage Ordinance in this way.  He presented and analyzed (at pp. 175-177) the history of the Ordinance as well as the different interpretation that the parallel provision in England received, according to which there is no more in the law than attribution of vicarious liability.  He even noted (at p. 177) that “I would therefore say that until now I would tend to accept the claim of the ship owner that the liability is not absolute but only vicarious”.  However, this interim conclusion did not remain the final conclusion of the judgment.  It was decided on the basis of another rationale which supports the opposing interpretation that Justice Witkon chose to prefer “not without hesitation”.  And what is the rationale?  That the phrasing of the Pilotage Ordinance (“responsible for any loss or damage”) is very similar to another statutory provision in England that regulates the liability for damages that a ship causes to the structures of the port: section 74 of the Harbours, Docks and Piers Clauses Act, 1847.  That provision was interpreted in English case law as imposing on the ship owner strict liability for the damages to the port, even without fault.  Lacking a hint in the language of the Pilotage Ordinance to the distinction between the liability established in it and the liability established in the English law of 1847, Justice Witkon preferred to compare the Ordinance to the English law, and to also see the Ordinance as imposing strict liability that does not require fault.  Justices Berinson and Kister agreed with Justice Witkon.  Justice Berinson admitted (at pp. 178-179) that the result of the judgment is “unusual” and may “occasionally bring about strange results”.  He also was willing to presume that this result does not reflect the original intent of the legislator of the Pilotage Ordinance.  Despite all this he decided to join the interpretation of Justice Witkon, for its accord with the language of the Ordinance, and taking into account the fact that it does not lead to a complete absurdity.

The ship’s owner, who was held liable for the damage caused to the barge, petitioned for a further hearing on the judgment.  President Agranat denied the petition: FH 38/75 Cargo Ships “El Yam” Ltd. v. the Ports Authority [7].  He too was of the opinion that the interpretation that was given in the judgment to the Pilotage Ordinance is anchored in the text of the ordinance and was justified given the background of the English law from the year 1847.

It is worth noting that the historical tie and the textual similarity between the Pilotage Ordinance and section 15 of the English pilotage law from the year 1913 do not enable the reconciliation of the judgment in the El Yam case and English case law, which interpreted section 15 only as a source of vicarious liability.  (See paragraph 18 supra).  Indeed, Justice Witkon related (at p. 178) to the Pilotage Ordinance and to section 15 in one breath, and his determination as to the similarity to the English law from the year 1847 is applicable to the Pilotage Ordinance and section 15 equally.  It turns out, therefore, that the judgment in the El Yam case also challenges the interpretation that was given by the House of Lords in England to section 15 of the English pilotage law.

Criticism of the Ruling

21.  The ruling that was made in the El Yam case generated criticism.  The criticism also came from this court: CA 804/80 Sidaar Tanker Corporation v. Eilat-Ashkelon Pipeline Company Ltd. [1] (hereinafter: “Eilat-Ashkelon Pipeline Company”).  A company that held the rights to run the oil port in Ashkelon sued the owners and the operator of a ship for damage caused by the ship, with a pilot on board, to the port’s structures.  This suit relied, inter alia, on the cause of action that was recognized in the El Yam case, meaning, the personal and strict liability of the ship owners in pilotage according to the Pilotage Ordinance.  Use of this cause of action raised the question of the defenses which defendants have against such a suit.  Since this question arose following the ruling in the El Yam case, which brought the law of strict liability of ship owners into the world, the Supreme Court considered it appropriate to precede and clarify this ruling.  It did so as it had doubts as to the correctness of the ruling.  In light of these doubts the panel of justices was expanded, and the parties, to which the Attorney General was joined, were invited to argue before the expanded panel on the question whether this ruling was to be deviated from.  However, by the time the moment of decision on this question arrived, the original parties approached the Court and informed it that they were willing, for the purpose of resolving the appeal, to view the ruling in the El Yam case as binding.  The Court adopted this agreement, and presumed as well, for the purpose of that case, that the ruling stands as is.  On the basis of this presumption the court ruled that the strict liability does not deny the ship owner the defenses which are available to any person causing damage according to the Torts Ordinance.  However, the court did not make do with this.  It considered it appropriate, beyond that which was necessary, to point to the difficulties that the ruling in the El Yam case raises.  Justice Netanyahu presented a number of queries as to the ruling, both in term of the substantive perspective and the historical perspective, and summarized (at p. 405) as follows:

“All these are questions of rationale, and all that I can answer is just this, that the text of the ordinance appeared to the judges who ruled in said CA 542/73 [2] so clear and unequivocal such that they preferred its literal interpretation as imposing a strict liability in light of the English case law as to section 74, although, as the hon. Justice Berinson has shown. . .  this brings about strange results. . .  this ruling prefers the literal interpretation not only over the historical interpretation but also over the interpretation according to the legislative aim.”

See also her words continued at p. 422-423.

Justice Barak also did not spare criticism from the ruling in the El Yam case.  He noted (at p. 427) that the result that emerges

“is surprising, as generally in the shipping world the principle is followed according to which the liability (at least in a collision between ships) is based on fault, and only in exceptional cases (such as damage to public ports) is this deviated from. . .  The Supreme Court was aware of the fact that its approach may ‘occasionally lead to strange results’    . . .  and contain some confusion but considered itself compelled to reach this result, as ‘when the text itself is sufficiently clear, we can do no more than apply the law as is and allow the Israeli legislator to straighten things out if and to the extent that they are not pleased with it. . .  For myself I am of the opinion that it is not to be said that the text is clear, if it does not fulfill a goal that was made clear to the interpreter.”

Later Justice Barak explained the unreasonableness in the distinction that the ruling in the El Yam case creates between a ship which does damage during the course of pilotage and a ship that does damage outside of the course of pilotage.  He added:

“Indeed, the interpretation of the Supreme Court in CA 542/73 [2] is a difficult one. . .  It is to be hoped that a way will be found to repair the situation, whether by way of changing case law or by way of legislation.  Of the two, the latter is preferable, which can take account of special situations that require special regulation.”

This call, inasmuch as it was directed at the legislature, did not bear fruit.  See supra paragraph 11.  To date, there has not been before this court a good opportunity to re-examine the continued validity of the ruling in the El Yam case.  This being so, this ruling is still valid.  From time to time it created difficulties before the courts, but in all cases the case law has managed, in one way or another, to overcome the strict liability and, in addition, impose liability on one who is not the ship owner, while leaving the ruling intact.  See CA 817/81 Ports Authority in Israel v. Zeno [7](hereinafter – “Zeno”): the strict liability according to the Ordinance does not prevent the owners of the ship from suing the Ports Authority and the Pilot for participation in the compensation that the owners were obligated to pay the third party that suffered damage from the ship; CC(Haifa) 786/87 Zim v. Ports Authority [17]: the strict liability according to the Ordinance does not rule out a suit by the ship owner against the pilot and his employer for damage that was caused to the ship in pilotage as a result of the negligence of the pilot.  In the judgment the subject of this appeal as well, the District Court was able to bypass the ruling in the El Yam case: it saw in strict liability, which is imposed according to the ruling in the framework of the Pilotage Ordinance, an additional but not exclusive cause of action that the damage gives rise to.  On the basis of this determination the District Court saw nothing to prevent the injured party (in this case the Ship) basing its suit against the tortfeasor (in this case the pilot and his employer) on a general tort in accordance with the Torts Ordinance (in this case the tort of negligence).  See paragraph 5 supra.

22.  In theory, the rationale of the District Court in this case, if it is correct, makes the need to examine the ruling in the El Yam case superfluous in this instance as well.  However, Zim, the respondent in this appeal, while it supports the rationale of the District Court, does not miss out on the opportunity that has been created to examine the ruling.  It claims that this court, as opposed to the District Court, has a better rationale for reaching the same conclusion that was reached by the District Court.  How so? While the District Court was compelled to give deference to the ruling in the El Yam case, and therefore was forced to give a limiting interpretation, in a manner that does not block causes of action outside of the Pilotage Ordinance; on the other hand, this court does not have to pave its way between the challenges created by the ruling, but can eliminate the ruling from the road.  This, according to Zim’s claim, is how the Court should rule.  If this would occur, and the liability of the ship owner and the captain according to the Pilotage Ordinance will be as it was meant to be, vicarious liability for the pilot, it will no longer be necessary to invest efforts in order to bypass strict liability.  The road to a suit by a ship owner against the pilot will then be paved and simple, like in any torts lawsuit of an employer or principal against an employee or an agent that caused damage.

A Change in the Ruling

23.  Indeed, in my view, it would be appropriate for this court to take the path suggested by Zim.  The ruling in the El Yam case was made some time ago.  Already then the court noted that the path of historical construction of the Pilotage Ordinance, which apparently reflects the legislator’s intent, leads to a different ruling, meaning, that the responsibility imposed according to this ordinance on the owners and the captain of the Ship is not strict liability but vicarious liability for the pilot.  Despite this the court preferred a literal interpretation which led it to impose strict liability.  The court was aware that strict liability is “an unusual result” and that it may “at times lead to strange results”.  And the court even presented these results explicitly.  However, as the Court said, in the words of Justice Berinson (p. 179) “if the legislator chose to use a text whose literal translation is strict liability, and it is not entirely absurd, I am of the opinion that we must give it force.”  See supra paragraph 20.

Ten years later, in the Eilat Ashkelon Pipeline Company case, the Supreme Court was willing to re-examine the validity of the ruling in El Yam.  The panel of the court was even expanded for this purpose.  In the end, the court did not examine the ruling as the parties expressed their willingness to accept the ruling as binding law.  Despite this, the court did not refrain from sharp criticism of the ruling, and even recommended amending the law.  See supra paragraph 21.  Since then more than fifteen years have passed and the law has remained as it was.

Two government committees were appointed by the Minister of Transportation to examine the law in this matter: the first submitted a report in 1990; the second – in 1994.  The two committees recommended changing the existing law regarding the damage caused during the course of pilotage.  The recommendations of both committees have remained as unturned stones until today.  See supra paragraph 11.

This time as well the court decided to expand the panel in the appeal.  Indeed, the time has come to deal head-on with the criticism that has been voiced against the ruling in the El Yam case, including by this Court, and to examine this law at its core.  Indeed, for just such a situation as this, the legislator exempted the Supreme Court from the principle of binding precedent.

24.  The essence of the criticism that has been voiced against the ruling in the El Yam case relates to the results that stem from the ruling.  Already in the El Yam case Justice Berinson said that this ruling may lead to strange results.  That would be an understatement.  The ruling leads to inappropriate results.  Here, for example, are a number of results that stem from the strict liability that was imposed in the El Yam case on the owners and the captain of the ship for any damage caused by the ship during the course of pilotage.

First, strict liability such as this creates a dissonance between the law in Israel and the law in the rest of the world.  It is an established rule in the maritime law of other countries, that liability for damage in which a ship is involved (apart from damage to port structures) is determined by the fault principle.  (See Gilmore & Black (supra paragraph 12) [33] at p. 486; T.J Schoenbaum Admiralty and Maritime Law (Minnesota, 2nd ed., 1994) [36] at 714; Marsden, On Collisions at Sea (London, 12th ed., by S. Gault, 1997) [37] at 61-62).

Second, strict liability creates a distortion within the law in Israel.  It is more severe, without good reason, specifically with the owners and the captain of a ship that is in pilotage.  As for a ship that is not in pilotage, the law for the owners and captain is equal, in principle, to the law for any tortfeasor, whose liability is limited to the damage caused as a result of personal fault (in the category of negligence or in another category).  Indeed, liability in torts generally requires fault.  (See I. Englard ‘Half a Jubilee to the Civil Torts Ordinance – Problems and Trends’ [26] at 572; D. Freedman ‘The Law of Property and the Law of Fault’ [27] at 241.)  What is the justification for deviating from this principle specifically when the ship is piloting its way in the port with the assistance of an external pilot?  In order to answer this question it is necessary to turn to the considerations which normally justify liability without fault in torts: creating an unusual risk; a special need for deterrence; possibility of distributing damage using insurance; insufficient economic capacity of the person at fault for causing the damage; and the like.  (See I. Gilad ‘Forty Years of Israeli Law – Chapters in Tort Law’ [28] at 649-650; D. Mor ‘Liability for Defective Products – Policy Considerations’ [29] at 78).  However, these considerations cannot support distinguishing between a ship in pilotage and a ship in another situation.  The pilotage does not create an unusual risk, but in fact reduces the risk that arises from the ship’s presence in the area of the port.  The pilotage also does not change the situation in terms of insurance, as the circle of those potentially suffering damage from a ship in pilotage is similar to such a circle from a ship that is not in pilotage.  Considerations of prevention and deterrence also do not justify relinquishing the fault requirement: the level of care of the pilot, which is a central tier in the safety of pilotage, will not increase as a result of imposing strict liability  on the owners and the captain.  On the other hand, the level of care of the captain during the course of pilotage which is expressed in the level of his supervision over the functioning of the pilot, will not be reduced if there is imposed on him (and on the ship owner) only vicarious liability for the pilot’s actions.  Such vicarious liability provides sufficient security as well for the payment of compensation, as it frees the person suffering the damage from the dependence on the economic capacity of the pilot.  Therefore, deterrence and collection needs also do not justify imposing strict liability on the owners and the captain.

Third, strict liability is not justified even according to the English law which the court relied on in the El Yam case.  Indeed section 74 of the English law of 1847 imposes on the owners of a ship strict liability for any damage to a port’s structures.  See supra paragraph 20.  However, this unusual liability was established by the English law in order to provide special protection to the port which serves the public.  Therefore, even if we presume that it is appropriate to adopt such liability in Israel, despite the absence of a law equivalent to the English law of 1847, the liability should have been limited to the circumstances in which it applies in England, meaning, the damage that the ship caused to a structure in the port.  But the court in Israel broadened the strict liability to any type of damage caused by a ship in pilotage in any location.

This is only a partial list of inappropriate results which stem from the ruling in El Yam.  (See further in the El Yam case, pp. 178-179, and the Eilat Ashkelon Pipeline Company case, at pp. 405, 427, 444).

25.  These results are not a decree from above.  They are not even a decree from the legislator.  The legislator of the Mandate period, as stated, did not intend to impose strict liability in the Pilotage Ordinance, but rather, as in the parallel English law of 1913, to impose vicarious liability.  See supra paragraph 18.  The court in El Yam also admitted this.  However, it preferred to rule in accordance with a literal interpretation, as though the text of the Ordinance left it no choice.

This is surprising.  As already in those days, years ago, the court was not enslaved to literal interpretation.  Generally, it avoided to the best of its ability a literal interpretation when such interpretation led it to a substantively inferior result.  In particular when the text of the law was not unambiguous.  And here, the text of the Pilotage Ordinance on the question of strict liability is not unambiguous: the Ordinance does not explicitly state that it imposes strict liability.  See the version of the Ordinance supra paragraph 1.  Even the English source, from which the court drew the strict liability, is not unambiguous.  It is true, as the court noted that the House of Lords interpreted section 74 of the English law of 1847, which uses language similar to the language of the Pilotage Ordinance, in such a way that creates strict liability.  See the Towerfield case, supra paragraph 18.  However, even the House of Lords did not adhere to this interpretation.  In the same judgment it interpreted the same language, this time in section 15 of the Pilotage Law of 1913, in a manner that creates vicarious liability and not strict liability.  (See Ibid.)  The House of Lords proved thereby that the language tolerates vicarious liability or strict liability in equal measure.  What, if so, led the court in the El Yam case to specifically impose strict liability?  It is possible that the reason is that in the El Yam case no fault was proven on the part of the pilot, the captain or the owners of the ship that caused the damage.  See paragraph 20 supra.  In such a situation, in which there was no fault on which to hang the damage, vicarious liability was not sufficient to compensate the person suffering the damage.  It is possible, therefore, that the desire to compensate the injured party is what influenced the court in the El Yam case, in a conscious or unconscious manner, to choose the path of strict liability.

However, whether or not this is the case, the ruling in the El Yam case has been perceived as a sweeping law that imposes strict liability on the ship owner and the captain in general, even when there is fault, including when there is fault on the part of the pilot.  (See Eilat Ashkelon Pipeline Company case and the Zeno case, supra paragraph 21.)  This broad conception is the source of the problem.  And what is the solution to the problem?

26.  As is known, over the years a change has occurred in the interpretive policy of the Court.  The keystone of construction, for some time now, is not literal construction but purposive construction.  Meaning, to the extent allowed by the text of the law, the Court strives to interpret the law in such a manner that will advance the purpose of the law.  The purpose of the law is to establish a good and logical rule, according to the matter under consideration, which will integrate with the broader network of legal rules and social values.  It is also proper to interpret the Pilotage Ordinance accordingly.

If so, then what is the proper interpretation of the Pilotage Ordinance?  The history of this ordinance teaches us clearly that the intent of the Ordinance, as was the intent of the parallel English law from 1913, was to impose liability for the fault of the pilot on the owners and the captain of the ship as vicarious liability.  This and no more. There is nothing in the history of the English law or the Pilotage Ordinance which justifies imposing strict liability on the owners and the captain even in the absence of fault.  See paragraph 18 supra.  Moreover, the strict liability is also not justified from other aspects.  It is not justified from the aspect of the purpose of the Ordinance, it leads to strange, if not inappropriate, results, and it is not consistent with the accepted rules as to liability for damage in similar contexts.  See paragraph 24 supra.  Therefore, there is no reason to say that the Pilotage Ordinance imposes strict liability on the owners or the captain for damage caused in the course of pilotage. It imposes vicarious liability on them and that is all.

However, it is to be asked whether this conclusion is consistent with the language of the Pilotage Ordinance which imposes dual liability: first, liability “for any loss or damage caused by the vessel” (hereinafter – “the first paragraph”); second, liability for “any loss or damage caused . . .  by an error in the navigation of the vessel” (hereinafter – the “second paragraph”)?  The second paragraph speaks explicitly of damage caused as a result of fault, while the first paragraph speaks in broad language of any damage, and not necessarily damage caused as a result of fault.  Is it to be concluded from this that there is also a difference in the law as to the liability imposed on the owners and the captain, between damage caused as a result of fault in driving the ship (in which case vicarious liability is imposed) and damage caused without such fault (in which case strict liability is imposed)?  The answer is negative, as the history of the Ordinance is one, as is the purpose and they lead to one clear conclusion: that the intent of the Ordinance is to impose only vicarious liability.  However, if this is so, what is the explanation and what is the reason for the existence of two paragraphs one next to the other?  The answer is that the dual language of the Pilotage Ordinance was copied from the dual language of the parallel law in England, meaning section 15 of the English Pilotage Law of 1913.  And here, the courts in England, which interpreted the liability according to section 15 of the Pilotage Law as vicarious liability only, applied this interpretation not only to the second paragraph in this section  (“for any loss or damage caused. . . by any fault of the navigation of the vessel”) which parallels the second paragraph in the Pilotage Ordinance, but also to the first paragraph in the section (“for any loss or damage caused by the vessel”), which parallels the first paragraph in the Pilotage Ordinance.  See the language of the section and the interpretation of the section supra paragraph 18.  Meaning, the dual language, as it was interpreted by the courts in England, is none other than a matter of format, which was intended to clarify or generalize, and not a matter of substance, and in any event it was not meant to distinguish between strict liability in one paragraph and vicarious liability in the second paragraph.  Such is the law in England.  There is no basis to presume that the legislator of the Mandate period, who copied the language from England, intended a different interpretation.  Therefore, this is also the law in Israel.  The conclusion is that absent personal liability for the damage on the part of the pilot or on the part of another person on the ship’s crew, there also is not vicarious liability of the owners or the captain of the ship and the Pilotage Ordinance does not impose any other liability on them.

It is worth noting that this conclusion is consistent with the judgment handed down by this court ten years before the ruling was made in the El Yam case: CA 469/64 Shiphart and Eskorant Genelsheft, A Ross and Kwo v. the Ports Authority in Israel [8] at 216-217.

27.  This being so, in conclusion, the Pilotage Ordinance, according to its original intention at the time and according to its correct meaning today, does not impose on the owners and on the captain of the Ship strict liability, as was ruled many years ago in the El Yam case, but only vicarious liability.  And it is one and the same whether, as in the language of the Ordinance, the damage was caused “by the vessel or by an error in the navigation of the vessel”.  This is the law from here on in.

This being so, what is the inherent benefit in the Pilotage Ordinance?  When the Pilotage Ordinance was passed, in 1939, it not only contained benefit it contained innovation.  The innovation, which was copied from the English law, was in the very idea of vicarious liability, which was absorbed as a general principle in the Land of Israel only eight years later, with the coming into force of the Torts Ordinance in 1947.  However, since then, of course, this innovation has dissipated.  What, then, is left today of the Pilotage Ordinance.

The Pilotage Ordinance still has benefit.  As according to section 13(a)(2)(b) of the Torts Ordinance, vicarious liability is not imposed on an employer “who was forced by law to use the services of a person the choice of whom  is not given to him.”  While the Pilotage Ordinance also imposes on the ship owner vicarious liability for damage caused by a compulsory pilot.

28.  Subsequent to all of this, what is the result that emerges from this ruling in the case before us?  In the case before us it is agreed that the pilot was negligent.  Zim can sue the pilot for his negligence.  For this purpose the Torts Ordinance is sufficient, and there is no need for the Pilotage Ordinance.  However, Zim, of course, does not make do with the personal liability of the pilot.  It wishes to impose liability on the Ports Authority as well, by force of the vicarious liability of the Authority for the pilot.  This being so, the question arises whether the Ports Authority can defend itself from Zim’s lawsuit, with the claim that Zim itself bears vicarious liability for the negligence of the pilot.  At this stage, therefore, the question of the vicarious liability of Zim for the negligence of the pilot according to section 2 of the Pilotage Ordinance, enters the picture.

But, prior to examining the question of the vicarious liability of Zim for the negligence of the pilot, it is appropriate to clarify the question of the relationship between the pilot and the Ports Authority.  Does this relationship produce vicarious liability of the Ports Authority for the negligence of the pilot?

The Pilot and the Ports Authority

29.  All agree that the pilot, when he was navigating the Ship, was an employee of the Ports Authority: he was bound to it by an employment contract, was integrated in its operations, received a salary and benefit from it, executed the pilotage with equipment supplied by it, and so on as to signs indicating an employment relationship.  The status of the pilot as an employee of the Ports Authority even received recognition in the Ports Regulations 1971: they define (in regulation 37) the representative of the Ports Authority as an “employer” of the pilot in the ports of which the Authority is in charge.  However, the existence of an employment relationship, in the standard sense, is not a sufficient condition, nor a necessary condition, for the existence of vicarious liability according to section 13 of the Torts Ordinance.  In order for vicarious liability to exist, it is necessary that the tortfeasor be an “employee” of the liable one, in the unique sense attributed to this term in the ordinance.  This sense requires, in accordance with the definition in section 2 of the ordinance, “complete control” of the employer as to the manner in which the employee conducts the work for him.  As to the complete control test see, for example, CA 582/71 National Insurance Institute v. the Ports Authority [9] at 654-656; CA 502/78 State of Israel v. Nisim [3] 758-759.  The Ports Authority claims that according to this test it does not bear vicarious liability for the pilot.  And why? Because the pilot is subject, when he is executing the pilotage, to the control of the captain, as to the manner of execution, and in any case the Ports Authority, as the permanent employer of the pilot, does not have “complete control” of the execution of the pilotage.  The Ports Authority supports this claim with references from other legal systems, which refused to recognize vicarious liability of the authority in charge of the port for the torts of a pilot, even where he was compulsory.

As did the Ports Authority, I too will discuss this claim in two stages.  In the first stage I will examine the result that arises from the Torts Ordinance.  After that I will examine the well-known impact of comparative law on this result.

30.  As stated, the Ports Authority claims that it does not have “complete control” of the pilot, as is required by the Torts Ordinance, in order to formulate vicarious liability of an employer for an employee.  I do not accept this claim.  Let us presume, for the purposes of this discussion, that the captain has no authority over pilotage, and that the pilot controls the pilotage exclusively.   In this situation is vicarious liability imposed on the Ports Authority for the damage that the pilot caused during pilotage?  According to the logic of the Authority, the answer must be in the negative, as the authority does not have control, not even partial control, of the decisions the pilot makes during pilotage.  Indeed, the Authority is entitled, and at times even must, draw conclusions against a pilot who shows lack of care, including ceasing to employ him or filing a complaint against him to the Pilot Licensing Committee, which was established in accordance with the sixth chapter of the Ports Regulations 5731-1971.  However, it does not have authority to intervene in the professional discretion of the pilot during pilotage.  Does this mean that it does not have “complete control” over the pilot as required for the purpose of vicarious liability?  Certainly not.  Countless judgments have imposed vicarious liability on employers for torts of professional employees such as, for example, vicarious liability of medical institutions for torts of doctors.  What, if then is the proper test for the existence of complete control for the purpose of vicarious liability of an employer for an employee?

“The complete control of the manner of execution is expressed in the fact that the employer determines the organizational and technical framework in which the employee will work . . .  the employee is not free to perform the work he is given as he wishes.  He must perform it in the organizational and technical manner which is established by the employer.  It is true, the employer is not permitted to interfere in the professional discretion of the employee, and is not permitted to instruct him as to how to use the tools and materials which are at his disposal, but he still is permitted to tell him which tools and materials to use” (A. Barak Vicarious Liability in Tort Law (1964) [24] 131.  See also at pp. 132-135, 167).

See also CA 85/60 Water Works Company Ltd. v. Segel [10] at 1949; CA 502/78 [3] (paragraph 29 supra) at pp. 758-759.

According to this test, it is clear that the Ports Authority must bear vicarious liability for the pilot.

However, in addition to the vicarious liability of the Ports Authority for the pilot, by force of the status of the Authority as an employer, there is also, by force of the Pilotage Ordinance, vicarious liability of Zim for the pilot.  Does the vicarious liability of Zim cancel out the vicarious liability of the Ports Authority?  It would have been proper to examine this question seriously if the vicarious liability of Zim had also stemmed from employer status.  In this situation it is to be asked whether it is proper to have vicarious liability of a permanent employer and of a temporary employer, simultaneously, for the tort of one employee.  (As to this question see on the one hand, CA 197/58 Eylon v. Yadi [11], at 1460-1461; CA 54/64 Peretz v. Keren Kayemeth LeIsrael Ltd. [12] at 392; on the other hand see CA 502/78 [3] (paragraph 29 supra), at p. 761.  See also Barak,  (supra), at pp. 137-138, 152; Y. Bahat (Buchhalter) ‘Dual Vicarious Liability for the Acts of an Employee – As of When?’ [30])  However, in my view, vicarious liability of the ship owner for the pilot based on the Pilotage Ordinance does not stem from an employment relationship but from an agency relationship, see supra paragraph 19.  Vicarious liability of a principal for an agent, as distinguished from vicarious liability of an employer for an employee, is not conditioned upon control by the principal of the agent, but in the substitution of the principal with the agent, and it does not impinge on the complete control that the Ports Authority, as the permanent employer of the pilot, has over the work of the pilot.  Therefore, Zim’s vicarious liability does not prevent the vicarious liability of the Authority.  Compare CA 502/78 [3] (supra paragraph 29) at p. 761.

31.  The Ports Authority also seeks to release itself of vicarious liability for the negligence of the pilot on the basis of the law in other common law countries.  Indeed, England, Canada, New-Zealand and Australia do not recognize vicarious liability of the entity in charge of the port for damage caused by the pilot.  However, the law in these countries has grown against the background of special legal arrangements, different from the arrangements practiced in Israel.  Inter alia, the body in charge of the port in these countries is not authorized in pilotage, but pilotage is the independent business of the pilot, while in Israel, as has been established in section 24(a) of the Ports and Railways Authority Act, “The Authority is permitted to work, whether on its own or via others, in any service provided at the port,” and the pilotage services are included in this.  Detailed comparison among the legal arrangements common in those countries and the legal arrangements common in Israel would require a long and detailed discussion, and I do not see fit to lengthen and complicate matters further, when they are already complex and exhausting.  Therefore, I will say only this, the different background to the laws that apply in the matter at hand, in Israel on the one hand and in other countries on the other, very much weakens the weight that is to be given to comparative law.  I will say further that there are also common law countries that recognize vicarious liability of the entity in charge of the port for the damage caused by the pilot.  (See, as to the United States, United States v. Port of Portland, 147 F. 865 (1906)[18]; City of Long Beach v. American President Lines, 223 F.2d 853 (9th Cir., 1955)[19]; National Development Company v. City of Long Beach, 187 F.Supp. 109 (1960)[20]; 70 Am.Jur. 2d sec. 443 (1987) [39]).  Therefore, comparative law cannot change the conclusion that the Ports Authority bears vicarious liability for the pilot.

However, since Zim also bears vicarious liability for the pilot, the question arises as to the distribution of liability between the pilot, the Ports Authority and Zim.  In order to answer that question we will now examine the relationship between the ship owner and the Ports Authority.

The Ship Owner and the Ports Authority

32.  The joining of the ship owner and the Ports Authority in vicarious liability for the pilot means that each one of them carries liability together with the pilot.  As a result, one who was injured by the pilot can sue the pilot, the ship owner, and the Authority, whether jointly or severally.  See Torts Ordinance section 11 and section 84(a).  (See also CA 22/75 Edri v. Azizian [5] at 709-710; FH 15/88 Melekh v. Kurhauser [13] at 103.)

The joint liability of the pilot, the ship owner and the Ports Authority frees the party suffering damage from dealing with distribution of liability between the three responsible parties.  Distribution of liability between the three only comes up in the internal relationships between them.  Generally, from a practical standpoint, there is importance to the distribution of liability between these two: the ship owner and the Ports Authority.  What, if so, is the distribution of liability between these two?  Like in any case of joint tortfeasors, here too the court must, according to section 84(b) of the Torts Ordinance, ensure distribution of liability “according to justice and integrity, taking into account the degree of responsibility of the person for the damage.”  This section, as it has been understood in the case law, requires that the distribution be done on the basis of moral blame of each of those responsible in a proportional manner.  See, for example, CA 1170/91 B’chor v. Yehiel [14] at 218.  What, then, is the relation between the moral blame of the ship owner, who bears vicarious liability for the pilot and the moral blame of the Ports Authority which also bears vicarious liability for the pilot?

It is difficult to attribute moral blame for one who bears vicarious liability and therefore it is also difficult to distribute the liability on the basis of moral blame between two who bear vicarious liability for the same person.  Thus, there is a temptation to distribute the liability between them equally.  However, the question is, will equal distribution of liability between the Ports Authority and the ship owner achieve, in the words of section 84(b) of the Torts Ordinance, justice and integrity, taking into account the degree of responsibility of each of them for the damage.

33.  There is a difference in the essence of the vicarious liability of the Ports Authority and the ship owner.  The vicarious liability of the Ports Authority is the regular employer-employee vicarious liability.  It is based on reasons which generally justify vicarious liability: distribution of the damage, ability to supervise the employee, the benefitting of the employer from the employee’s work, and more.  On the other hand, the vicarious liability of the ship owner for the pilot is special vicarious liability: it does not stem from an employment relationship; it also does not stem from a common agency relationship; it stems from a temporary relationship which has been imposed on the ship owner by law.  See supra paragraphs 18-19.  Indeed, for these reasons the common law released ship owners from vicarious liability for a compulsory pilot, and for these reasons ship owners in the United States enjoy such a release until today.  See supra paragraph 18.  Why, therefore, did the English legislator (in 1913) and following it the legislator in the Land of Israel (in 1939), cancel the release from vicarious liability which the common law gave to ship owners in compulsory pilotage?  The English legislator adopted the recommendations of the national committee (from 1911) which was established following the Brussels International Convention for the Unification of Certain Rules with Respect to Collision of Vessels (of 1910).  Therefore, we can learn about the considerations of the English legislator from the considerations of the committee and the treaty.  These considerations, as emerges from the legal literature were two:

[a]  The legislator sought to make it easier for a third party, who suffered damage from a pilot, to be compensated for the damage.  As the pilots in England operated (until 1987) as independent contractors, and the Port Authority was not responsible for their actions, it was important for the person suffering damage that liability for the damage be imposed on the ship owner.  However, a lawsuit against the ship owner was liable to encounter difficulties, based on the need to point to the fault of the ship owner or the captain.  In many cases the ship owner would defend himself against such a lawsuit by redirecting the fault onto the pilot; the pilot would redirect the fault to the captain; and the person suffering damage would have difficulty determining where the fault lay, and was even likely to leave the proceedings empty-handed.  Therefore the law came and established that the person suffering damage was entitled to sue the ship owner, by way of vicarious liability, for compensation of damage caused by the fault of the pilot.  See Douglas and Green (paragraph 12 supra) [31] at p. 199.

[b]  The legislator sought to increase the safety of pilotage.  Prior to amending the law, the captain did not have a good incentive to follow the course of the pilotage and supervise the pilot’s work, as there was no concern that the captain or the ship owner would be held liable for damage that the pilot was at fault for.  The opposite: it was specifically the involvement of the captain in pilotage that would expose him (and the ship owner) to liability for such damage.  However, it is clear that the involvement of the captain in pilotage advances the safety of the pilotage.  See G.K. Geen & R.P.A. Douglas the Law of Pilotage (London, 2nd ed., 1983) [35] at 81.

In light of the historical background of the Pilotage Ordinance, it is appropriate to say that these two considerations were the considerations that were also at the basis of the vicarious liability of the ship owner (and of the captain) for a pilot in Israel.

But these considerations which are sufficient to impose on the ship owner liability toward the person suffering damage for damage caused by the pilot, should not necessarily determine the distribution of liability for damage between the ship owner and the Ports Authority.  As, in terms of the person suffering damage, after he is ensured that he will be able to receive the compensation he is entitled to from the ship owner, it is not his concern whether and how the ship owner shares liability with the Ports Authority.  For the purpose of distribution of liability between the ship owner and the Ports Authority for damage caused by the pilot, it is to be remembered that according to the regular rules of the Torts Ordinance, the ship owner did not need to bear any liability for damage caused by compulsory pilotage; the liability imposed on the ship owner by the Pilotage Ordinance does not come to exempt the Ports Authority from liability, but to benefit the person suffering damage; as in general there is no substantive reason to exempt the Ports Authority from the vicarious liability imposed on it as with any employer, or to reduce the liability imposed on it, for damage caused by its employee, meaning, by the pilot.

Even in terms of the safety of the pilotage, there is no reason to determine, in the relationship between the ship owner and the Ports Authority that the ship owner needs to bear part of the damage caused by the pilot.  In any case, as has already been stated, the captain must supervise the pilot, and if he is negligent in his supervision he bears direct liability for the damage, and the ship owner bears vicarious liability, according to the degree of responsibility of the captain.  See supra paragraphs 14-16.

What if then is the conclusion as to the distribution of liability between the Ports Authority and the ship owner in light of section 84(b) of the Torts Ordinance, which establishes that the court will determine the distribution according to justice and integrity taking into consideration the degree of responsibility for the damage?  The conclusion is that in general the responsibility for the damage caused by the pilot will be imposed, in the relationship between the Ports Authority and the ship owner, fully on the Ports Authority.

This is generally the case, but not necessarily always so.  The question as to what is required based on justice and integrity taking into consideration the degree of responsibility for the damage is also dependent on the circumstances of the case. Therefore, the possibility is not to be ruled out that in special circumstances the court will have a special reason to deviate from the rule, and to impose on the ship owner some of the responsibility for the damage that was caused by the pilot.

34.  In the case before us Zim sued the Ports Authority for damage caused to Zim itself.  To the extent that the damage was caused by the fault of the pilot, Zim can sue the Ports Authority, which bears vicarious liability for the pilot, for compensation of Zim for this damage.  In theory, the Ports Authority can go back to Zim, which also bears vicarious liability for the pilot in accordance with the Pilotage Ordinance, and demand distribution of liability for the damage that was caused by the pilot between the Ports Authority and Zim.  However, as said, in the relationship between the Ports Authority and Zim, the liability for the damage caused by the pilot is generally imposed on the Ports Authority only.  Therefore, and absent a special reason to impose some of the liability on Zim, the Ports Authority cannot build on the claim that Zim also bears vicarious liability for the pilot, in order to reduce some of the compensation that it is liable for in light of its vicarious liability for the pilot.

Under these circumstances the Ports Authority is left with only two claims against Zim: the first, that the damage to the Ship was not caused by the negligence of the pilot; and the second, that the damage to the Ship, even if it was caused as a result of the negligence of the pilot, was also caused by the negligence of the captain, and therefore the compensation that the Ports Authority must pay Zim is to be reduced according to the proportion of the negligence of the captain.

The Negligence of the Pilot and the Captain

35.  The District Court determined that the Ship was damaged as a result of the joint negligence of the pilot and the captain.  The court attributed two-thirds of the damage to the pilot and one third to the captain.  See supra paragraph 4.  In the framework of the appeal hearing the Ports Authority and Zim agreed that the captain and the pilot were equally negligent, and that the negligent conduct of the captain and the pilot is what caused the Ship to hit the dock.  See paragraph 6 supra.  This is sufficient to determine that two of the elements of the tort of negligence in accordance with section 35 of the Torts Ordinance were fulfilled regarding the captain and the pilot: “negligent conduct” and “damage”. However, this still is not sufficient to impose personal liability in negligence on the captain and the pilot.  In order for joint negligent conduct that caused damage to lead to joint liability in negligence, it is necessary according to section 35 of the Torts Ordinance, that the two people whose conduct was negligent have a duty of care toward the person suffering the damage.  Did the negligent conduct of the captain and the pilot breach a duty of care of each of them toward Zim.

The central pillar of the duty of care, as stated in section 36 of the Torts Ordinance, is foreseeability.  The ability to foresee brings with it, generally, a duty to foresee.  In order to deviate from this rule, special considerations of legal policy must exist against imposition of the duty.  See, for example, CA 145/80 Waknin v. Bet Shemesh Local Council [15]; CA 243/83 Jerusalem Municipality v. Gordon [16].

In the case before us the Ship collided with the dock as a result of the speed of braking which was not coordinated with the distance of the Ship from the dock.  The District Court determined, as a factual matter, that the captain and pilot could have known, and perhaps even knew in fact, what the distance was, what the speed was, and what was the foreseeable result of an error in coordinating the speed with the distance.  See supra paragraph 4.  Zim never challenged this determination.  As said, the Ports Authority also now reconciles itself to this result.  See paragraph 6 supra.  Therefore, there is no reason not to affirm it.  The consequence is that the captain and the pilot were able to foresee the occurrence of the damage.  This concludes the factual portion of the negligence.

The District Court further determined that the captain and the pilot were not only able to foresee the occurrence of the damage but also should have foreseen its occurrence and taken precautionary measures to prevent it.  The Ports Authority claims that the District Court erred when it applied such a duty to the pilot.  See supra paragraph 7.  However, as we have already stated, the Authority is mistaken: the law in Israel, as in the rest of the world, is that a pilot is responsible for pilotage along with the captain.  See supra paragraphs 14-16.

The conclusion is that the joint negligent conduct of the captain and the pilot violated a joint duty of care of the captain and pilot, and this breach is what brought about the collision of the Ship with the dock.  Absent contrary considerations, it is to be said that the joint duty of care is distributed equally between the captain and the pilot.  Meaning, in light of the fact that the negligent conduct was equal and there was a single damage, the (personal) liability of the captain and the pilot for the negligence is also equal.

The Result

36.  The result is that the Ports Authority alone is liable to Zim by vicarious liability for the pilot’s negligence.  However, the pilot, were he to be sued to compensate Zim for the damage that was caused to the Ship, would be obligated, in light of the contributory negligence of the captain, for only half the damage.  The same applies to the Ports Authority.

Accordingly, the appeal is to be partially affirmed in the sense that the Ports Authority must pay Zim for only half of the damage and not two thirds as the District Court ruled. 

Orders to pay expenses and attorneys fees in the District Court will remain in force as ordered by the District Court.

Since adjustment of the amount of compensation stems from the parties’ agreement as to the degree of negligence that each party is liable for, while on the fundamental realm the claims of the Ports Authority were dismissed, the Authority must pay Zim’s court costs in this appeal in the total sum of NIS 30,000.

 

Vice-President S. Levin

I agree.

 

Justice T. Or

I agree.

 

Justice E. Mazza

I agree.

 

Justice M. Cheshin

I agree.

 

Decided as per the decision of Justice I. Zamir.

 

11 Tishrei 5761

October 10, 2000

 

 

Pamesa Ceramica v. Yisrael Mendelson Ltd

Case/docket number: 
CA 7833/06
Date Decided: 
Tuesday, March 17, 2009
Decision Type: 
Appellate
Abstract: 

Facts: Pamesa Ceramica (‘Pamesa’), a Spanish company, manufactured floor tiles that were imported into Israel by companies later acquired by Yisrael Mendelson Engineering Technical Supply Ltd (‘Mendelson’). These were subsequently bought by a construction company, Yaakov and Tovi Eisenberger Building and Public Works Co. Ltd (‘Eisenberger’), and used in the construction of a residential building in Kiryat Motzkin.

 

After the buildings became inhabited, a defect was found in the tiles. Eisenberger replaced the tiles and sued Mendelson for reimbursement of the price of the tiles and the work involved in replacing them, and for compensation for damage to its reputation (in a total amount of NIS 1,173,100). Mendelson sent a third party notice to Pamesa claiming Pamesa was liable for any amount that it would be found liable to pay to Eisenberger.

 

The District Court found the importer to be fully liable for the defective tiles. It also upheld the third party notice, rejecting Pamesa’s claim it was not notified of the defect in the products within a period of two years and therefore the third party notice was prescribed under the Sale (International Sale of Goods) Law, 5731-1971. The District Court held that Pamesa had been aware that the tiles were problematic, and that the prescription period of two years in the Sale (International Sale of Goods) Law, 5731-1971, only applied to contractual claims, but not to claims in tort, and Pamesa had been negligent in the manufacture of the tiles.

 

All three parties appealed the judgment of the District Court to the Supreme Court. Eisenberger appealed solely on the question of quantum of damages for the damage to its goodwill. Mendelson appealed the finding that it was liable to Eisenberger. Pamesa appealed the finding that it was liable to Mendelson.

 

The main question in the appeal was whether the prescription period of two years in the Sale (International Sale of Goods) Law can be circumvented by a buyer who does not give notice of a defect in goods by raising a claim against the seller (manufacturer) in tort.

 

Held: The Supreme Court allowed Pamesa’s appeal. Even if Pamesa had been aware that the tiles were problematic, this was insufficient. Article 40 of the Hague Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods of 1964 provides that the prescription period of two years for international sales of goods will not apply if the seller knew of the defect, but the buyer needs to prove that the seller knew of the specific defect being alleged. Awareness of ‘problems’ in a certain product is insufficient. Mendelson should have given Pamesa notice within two years of receiving the goods, and since it did not do so, the action was prescribed under the Sale (International Sale of Goods) Law.

 

The Supreme Court held that the District Court was essentially correct when it held that a buyer may sue a seller (manufacturer) for negligence in an international sale of goods after the two year prescription period has expired. But after the two year prescription period has expired, the seller no longer has strict liability under the Sale (International Sale of Goods) Law, and the buyer is required to prove negligence. The Supreme Court held that Mendelson had not discharged the burden of proving that Pamesa had in fact been negligent.

 

Mendelson’s appeal was allowed solely on the question of deducting Value Added Tax from the amount awarded, a question that Eisenberger did not address in its arguments.

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

Facts: Pamesa Ceramica (‘Pamesa’), a Spanish company, manufactured floor tiles that were imported into Israel by companies later acquired by Yisrael Mendelson Engineering Technical Supply Ltd (‘Mendelson’). These were subsequently bought by a construction company, Yaakov and Tovi Eisenberger Building and Public Works Co. Ltd (‘Eisenberger’), and used in the construction of a residential building in Kiryat Motzkin.

After the buildings became inhabited, a defect was found in the tiles. Eisenberger replaced the tiles and sued Mendelson for reimbursement of the price of the tiles and the work involved in replacing them, and for compensation for damage to its reputation (in a total amount of NIS 1,173,100). Mendelson sent a third party notice to Pamesa claiming Pamesa was liable for any amount that it would be found liable to pay to Eisenberger.

The District Court found the importer to be fully liable for the defective tiles. It also upheld the third party notice, rejecting Pamesa’s claim it was not notified of the defect in the products within a period of two years and therefore the third party notice was prescribed under the Sale (International Sale of Goods) Law, 5731-1971. The District Court held that Pamesa had been aware that the tiles were problematic, and that the prescription period of two years in the Sale (International Sale of Goods) Law, 5731-1971, only applied to contractual claims, but not to claims in tort, and Pamesa had been negligent in the manufacture of the tiles.

All three parties appealed the judgment of the District Court to the Supreme Court. Eisenberger appealed solely on the question of quantum of damages for the damage to its goodwill. Mendelson appealed the finding that it was liable to Eisenberger. Pamesa appealed the finding that it was liable to Mendelson.

The main question in the appeal was whether the prescription period of two years in the Sale (International Sale of Goods) Law can be circumvented by a buyer who does not give notice of a defect in goods by raising a claim against the seller (manufacturer) in tort.

 

Held: The Supreme Court allowed Pamesa’s appeal. Even if Pamesa had been aware that the tiles were problematic, this was insufficient. Article 40 of the Hague Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods of 1964 provides that the prescription period of two years for international sales of goods will not apply if the seller knew of the defect, but the buyer needs to prove that the seller knew of the specific defect being alleged. Awareness of ‘problems’ in a certain product is insufficient. Mendelson should have given Pamesa notice within two years of receiving the goods, and since it did not do so, the action was prescribed under the Sale (International Sale of Goods) Law.

The Supreme Court held that the District Court was essentially correct when it held that a buyer may sue a seller (manufacturer) for negligence in an international sale of goods after the two year prescription period has expired. But after the two year prescription period has expired, the seller no longer has strict liability under the Sale (International Sale of Goods) Law, and the buyer is required to prove negligence. The Supreme Court held that Mendelson had not discharged the burden of proving that Pamesa had in fact been negligent.

Mendelson’s appeal was allowed solely on the question of deducting Value Added Tax from the amount awarded, a question that Eisenberger did not address in its arguments.

 

Appeal CA 7833/06 allowed. Appeal CA 8125/06 allowed in part. Appeal CA 8495/06 denied.

 

Ettinger Estate v. Jewish Quarter Company

Case/docket number: 
CA 140/00
Date Decided: 
Monday, March 15, 2004
Decision Type: 
Appellate
Abstract: 

Facts: The late Michael Ettinger died after falling into an unfenced pit at an archaeological site located near a playground in the Old City of Jerusalem. He was twelve years old. The appellants, his estate and family, sued the respondents for compensation in the District Court. The main issue considered in the Supreme Court on appeal was whether the estate was entitled to compensation for loss of the deceased’s earning capacity in the ‘lost years’ — the years of working life that the deceased lost because he died as a result of the respondents’ negligence. This issue had been considered more than twenty years earlier, in Estate of Sharon Gavriel v. Gavriel, where the majority held that legislation was required to allow an award of compensation for loss of earning capacity in the ‘lost years.’ But no legislation to this effect had been enacted in the interim.

 

A second issue that was considered in the appeal was whether the respondents should have been found liable to pay punitive damages.

 

Held: The time had come to reconsider the issue of compensation for loss of earning capacity in the ‘lost years.’ The Supreme Court held that:

 

Where a person suffers a reduction of life expectancy as a result of a tortious act, he is entitled to compensation for the loss of earning capacity in the ‘lost years.’

 

Where a person dies as a result of a tortious act, his claim to compensation for the loss of earning capacity in the ‘lost years’ passes to his estate. If the deceased has dependants who are awarded compensation for loss of support in the ‘lost years,’ this compensation is deducted from the compensation payable to the estate for loss of the deceased’s earning capacity in the ‘lost years,’ to prevent double liability being imposed on the tortfeasor.

 

The Supreme Court left undecided the question of whether Israeli courts have the power to award punitive damages, since the facts of this case did not warrant an award of punitive damages in any case.

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

CA 140/00

CA 550/01

1.       Estate of the late Michael Ettinger deceased

2.       Chaya Ettinger

3.       Yosef Ettinger

4.       Yael Ettinger

v

1. Company for the Reconstruction and Development of the Jewish Quarter

2.       Jerusalem Fund

3.       Jerusalem Municipality

4.       Reuven Shalom

5.       Yitzhak Feitliss

6.       Mordechai Borochov

 

The Supreme Court sitting as the Court of Civil Appeal

[15 March 2004]

Before President A. Barak, Vice-President T. Or and Justices E. Mazza, D. Dorner, E. Rivlin

 

Appeal on the judgment of the Jerusalem District Court (Justice Y. Adiel) on 18 November 1999 in CC 4/95.

 

Facts: The late Michael Ettinger died after falling into an unfenced pit at an archaeological site located near a playground in the Old City of Jerusalem. He was twelve years old. The appellants, his estate and family, sued the respondents for compensation in the District Court. The main issue considered in the Supreme Court on appeal was whether the estate was entitled to compensation for loss of the deceased’s earning capacity in the ‘lost years’ — the years of working life that the deceased lost because he died as a result of the respondents’ negligence. This issue had been considered more than twenty years earlier, in Estate of Sharon Gavriel v. Gavriel, where the majority held that legislation was required to allow an award of compensation for loss of earning capacity in the ‘lost years.’ But no legislation to this effect had been enacted in the interim.

A second issue that was considered in the appeal was whether the respondents should have been found liable to pay punitive damages.

 

Held: The time had come to reconsider the issue of compensation for loss of earning capacity in the ‘lost years.’ The Supreme Court held that:

Where a person suffers a reduction of life expectancy as a result of a tortious act, he is entitled to compensation for the loss of earning capacity in the ‘lost years.’

Where a person dies as a result of a tortious act, his claim to compensation for the loss of earning capacity in the ‘lost years’ passes to his estate. If the deceased has dependants who are awarded compensation for loss of support in the ‘lost years,’ this compensation is deducted from the compensation payable to the estate for loss of the deceased’s earning capacity in the ‘lost years,’ to prevent double liability being imposed on the tortfeasor.

The Supreme Court left undecided the question of whether Israeli courts have the power to award punitive damages, since the facts of this case did not warrant an award of punitive damages in any case.

 

Appeal allowed in part.

 

Legislation cited:

Basic Law: Human Dignity and Liberty.

Enforcement Law, 5727-1967, s. 12.

Liability for Defective Products Law, 5740-1980.

Patents Law, 5627-1967, s. 183.

Penal Law, 5737-1977, ss. 304, 309(5).

Road Accident Victims Compensation Law, 5735-1975, ss. 4, 6.

Road Accident Victims Compensation (Calculation of Compensation for Non-Pecuniary Loss) Regulations, 5736-1976, r. 4.

Road Accident Victims Compensation (Periodic Payments) Regulations, 5738-1978, r. 3.

Torts Ordinance [New Version], ss. 19, 19(a), 19(b), 19(d), 76, 78, 78-81, 79, 80, 81(1).

 

Israeli Supreme Court cases cited:

[1]      CA 295/81, Estate of Sharon Gavriel v. Gavriel [1982] IsrSC 36(4) 533.

[2]      CA 22/49 Levy v. Mosaf [1950] IsrSC 4 558.

[3]      CA 357/80, Naim v. Barda [1982] IsrSC 36(3) 762.

[4]      FH 29/83, Sahar Insurance Co. Ltd v. Cahanka [1985] IsrSC 39(1), 833.

[5]      CA 95/55 Salomon v. Adler [1955] IsrSC 9 1905.

[6]      CA 116/81 Estate of Aharon Knafo v. Arnon Tussia-Cohen [1982] IsrSC 36(4) 580.

[7]      CA 248/86 Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [1991] IsrSC 45(2) 529.

[8]      CA 642/89 Estate of Meir Schneider v. Haifa Municipality [2002] IsrSC 56(1) 470.

[9]      CA 4022/98 The Technion, Israel Technological Institute v. Twister, Takdin (SC) 99(2) 255.

[10]    CA 110/86 Gevaram v. Heirs of the late Shalom Manjam [1988] IsrSC 42(2) 193.

[11]    HCJ 693/91 Efrat v. Director of the Population Register at the Ministry of Interior [1993] IsrSC 47(1) 749.

[12]    CA 2939/92 General Federation Medical Fund v. Rachman [1995] IsrSC 49(2) 369.

[13]    CA 70/52 Grossman v. Roth [1952] IsrSC 6 1242.

[14]    CA 79/65 Israel Steel Enterprises Ltd v. Malca [1965] IsrSC 19(2) 266.

[15]    CA 5794/94 Ararat Insurance Co. Ltd v. Ben-Shevach [1997] IsrSC 51(3) 489

[16]    CA 44/76 Atta Textile Co. Ltd v. Schwartz [1976] IsrSC 30(3) 785.

[17]    CFH 7794/98 Ravid v. Clifford [2003] IsrSC 57(4) 721.

[18]    CA 30/80 State of Israel v. Asher [1981] IsrSC 35(4) 788.

[19]    CA 722/86 Youness v. Israel Car Insurance Pool [1989] IsrSC 43(3) 875.

[20]    CA 541/63 Reches v. Hertzberg [1964] IsrSC 18(2) 120.

[21]    CA 773/81 Estate of Robert Freilich v. State of Israel [1982] IsrSC 36(4) 816.

[22]    CA 237/80 Barsheshet v. Hashash [1982] 36(1) 281.

[23]    CA 141/89 Mahmoud v. Shamir Insurance Co. Ltd, Takdin (SC) 91(3) 1329.

[24]    CA 384/74 Estate of David Azoulay v. Vulcan Casting Enterprises Ltd [1976] IsrSC 30(1) 374.

[25]    CA 2376/93 Estate of Michal Kedar v. HaSneh Insurance Co. [1995] IsrSC 49(1) 594.

[26]    CA 148/53 Penetz and Egged Operative Group Ltd v. Feldman [1955] IsrSC 9(3) 1711.

[27]    CA 482/89 Estate of Sarah Abir v. Ferber [1993] IsrSC 47(3) 107.

[28]    CA 506/82 Sontag v. Estate of David Mendelsohn [1986] IsrSC 40(3) 113.

[29]    CA 64/89 Gabbai v. Lausanne [1994] IsrSC 48(4) 673.

[30]    CA 206/87 General Federation Medical Fund v. Estate of Dr Meir Edison [1991] IsrSC 45(3) 72.

[31]    FH 24/81 Honovitz v. Cohen [1984] IsrSC 38(1) 413.

[32]    CA 32/60 Felixberg v. General Manager of the Railway [1960] IsrSC 14 1629.

[33]    CA 778/83 Estate of Sarah Saidi v. Poor [1986] IsrSC 40(4) 628.

[34]    CA 489/79 Eliyahu Insurance Co. Ltd v. Estate of Violet Tzaig [1981] IsrSC 35(2) 123.

[35]    CA 5/84 Yehezkel v. Eliyahu Insurance Co. Ltd [1991] IsrSC 45(3) 374.

[36]    CA 471/93 Estate of David Hyams v. Hyams, Takdin (SC) 97(2) 969.

[37]    CA 1503/94 Israeli Phoenix Insurance Co. Ltd v. Estate of Baruch Berman, Takdin (SC) 96(2) 796.

[38]    CA 154/70 Bida v. Rubin [1971] IsrSC 25(2) 43.

[39]    CA 682/69 Hamudot v. Shapira [1970] IsrSC 24(1) 686.

[40]    CA 501/84 Migdal Insurance Co. Ltd v. Miron [1988] IsrSC 42(2) 89.

[41]    CA 610/75 Rotem v. Nof [1978] IsrSC 32(1) 799.

[42]    CA 1299/92 Estate of Aliza Mor v. Rom [1996] IsrSC 50(1) 697.

[43]    CA 541/88 Protection of Nature Society v. Estate of Ora Forman [1992] IsrSC 46(1) 133.

[44]    CA 204/85 State of Israel v. Mizrahi [1988] IsrSC 42(2) 113.

[45]    CA 587/87 Malca v. Aktin [1990] IsrSC 44(4) 168.

[46]    CA 311/85 Efraimov v. Gabbai [1988] IsrSC 42(3) 191.

[47]    CA 634/88 Attiya v. Zaguri [1991] IsrSC 45(1) 99.

[48]    CA 209/53 Weizman v. Zucker [1954] IsrSC 8 1428.

[49]    CA 685/79 Atrash v. Maalof [1982] IsrSC 36(1) 626.

[50]    CA 335/59 Reichani v. Tzidki [1961] IsrSC 15 159.

[51]    CA 326/88 Zimmerman v. Gavrielov [1992] IsrSC 46(1) 353.

[52]    CA 142/89 Gamliel v. Oshiot Insurance Co. Ltd, Takdin (SC) 90(3) 683.

[53]    CA 1977/97 Barzani v. Bezeq, the Israel Telecommunication Corp. Ltd [2001] IsrSC 55(4) 584.

[54]    LCrimA 2976/01 Assaf v. State of Israel [2002] 56(3) 418.

[55]    CA 216/54 Schneider v. Glick [1955] IsrSC 9 1331.

[56]    CA 81/55 Kochavi v. Becker [1957] IsrSC 225.

[57]    CA 277/55 Rabinowitz v. Sela [1958] IsrSC 12 1261.

[58]    CA 30/72 Friedman v. Segal [1973] IsrSC 27(2) 225.

[59]    CA 670/79 HaAretz Newspaper Publishing Ltd v. Mizrahi [1987] IsrSC 41(2) 169.

[60]    CA 711/72 Meir v. Governors of the Jewish Agency for Israel [1974] IsrSC 28(1) 393.

[61]    CA 3654/97 Kartin v. Ateret Securities (2000) Ltd [1999] IsrSC 53(3) 385.

[62]    CA 372/65 Dehan v. Francis [1965] IsrSC 19(4) 192.

[63]    CA 15/66 Shinar v. Hassan [1966] IsrSC 20(2) 455.

[64]    CA 283/89 Municipality of Haifa v. Moskowitz [1993] IsrSC 47(2) 718.

[65]    CA 235/78 Hornstein v. Ohavi [1979] IsrSC 33(1) 346.

[66]    CA 184/80 Eigler v. HaMagen [1981] IsrSC 35(3) 815.

[67]    CA 2801/96 El-Al Israel Airlines Ltd v. Yifrach [2001] IsrSC 55(1) 817.

[68]    CA 675/82 Asadi v. Cohen, IsrSC 38(4) 449.

[69]    CA 180/88 Ozeri v. Sarufi, Takdin (SC) 90(3) 606.

[70]    CA 3843/90 Ohayon v. State of Israel, Ministry of Defence, Takdin (SC) 93(3) 428.

[71]    CA 286/55 Wolfovitz v. Fisher [1957] IsrSC 11(1) 379.

[72]    CA 402/75 Estate of Yisrael Mashiach v. Rosenblum [1976] IsrSC 30(3) 97.

[73]    CA 2517/93 A v. Katahin, Takdin (SC) 94(2) 335.

[74]    CA 6978/96 Amar v. General Federation Medical Fund [2001] IsrSC 55(1) 920.

[75]    CA 2055/99 A v. Israel Chief Rabbinate, Takdin (SC) 2001(2) 240.

[76]    CA 163/99 Estate of Diav Mizawi v. Dori Engineering Works Co. Ltd, Takdin (SC) 2000(1) 187.

[77]    CA 5938/97 Peleg v. Tardiman, Takdin (SC) 2000(1) 187.

 

Israeli District Court cases cited:

[78]    CC (TA) 1549/96 Levy v. Hadassah Medical Organization, Dinim (DC) 32(1) 622.

[79]    CC (Hf) 1581/94 Hattib v. State of Israel, Dinim (DC) 32(7) 163.

 

American cases cited:

[80]    Doe v. United States, 737 F. Supp. 155 (1990).

[81]    Prairie Creek Coal Mining Co. v. Kittrell, 153 S.W. 89, 94 (1912).

[82]    Littman v. Bell Telephone Co. of Pennsylvania, 315 Fa. 370, 172 A. 687 (1934).

[83]    In re Joint Eastern & Southern District Asbestos Litigation, 726 F. Supp. 426 (1989).

[84]    United States v. Carroll Towing Co., 159 F. 2d 169 (1947).    

[85]    Mclaughlin v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 143 N. W. 2d 32 (1966).

[86]    Morrison v. State, 516 P. 2d 402 (1973).

[87]    Borcherding v. Eklund, 55 N.W.2d 643 (1952).

[88]    Crecelius v. Gamble-Skogmo, Inc., 13 N.W. 2d 627 (1944).

[89]    Burke v. United States, 605 F. Supp. 981 (1985).

[90]    Fein v. Permanente Medical Group, 695 P.2d 665 (1985).

[91]    Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974).

[92]    Ehlinger v. State, 237 N.W.2d 784 (1976).

[93]    Hughes v. Chicago, R.I. & P. Ry. Co., 129 N.W. 956 (1911).

[94]    Olivier v. Houghton County St. Ry., 101 N. W. 530 (1904).

[95]    Hindmarsh v. Sulpho Saline Bath Co., 187 N.A. 806 (1922).

[96]    Balmer v. Dilley, 502 P. 2d 456 (1972).

[97]    Runyon v. District of Columbia, 463 F. 2d 1319 (1972).

[98]    Weaver v. Ford Motor Co., 382 F. Supp. 1068 (1974).

[99]    Hope v. Seahorse, Inc., 651 F. Supp. 976 (1986).

[100]  Murray v. Philadelphia Transp. Co., 58 A. 2d 323 (1948).

[101]  Ferne v. Chadderton, 69 A. 2d 104 (1949).

[102]  Greene v. Texeira, 505 P. 2d 1169 (1973).

[103]  Prunty v. Schwantes, 162 N. W. 2d 34 (1968).

[104]  Sanderson v. Steve Snyder Enterprises, Inc., 491 A. 2d 389 (1985).

[105]  B.M.W. of North America Inc., v. Gore, 116 S. Ct. 1589 (1996).

 

Australian cases cited:

[106]  Skelton v. Collins, 115 C.L.R. 94 (1996).

[107]  Sharman v. Evans (1977) 138 C.L.R. 563.

[108]  Rose v. Motor Vehicle Insurance Trust (1974) 48 A.L.J.R. 352.

[109]  Fitch v. Hyde-Cates, 150 C.L.R. 482.

[110]  Uren v. John Fairfax & Sons Pty Ltd (1966) 117 C.L.R. 118.

[111]  Lamb v. Cotogno (1987) 74 ALR 188.

 

Canadian cases cited:

[112]  Andrews v. Grand & Toy Alberta Ltd. [1978] 2 S.C.R. 229.

[113]  The Queen in right of Ontario v. Jennings [1966] 57 D.L.R. 2d 644.

[114]  Sigouin (Guardian in litem of) v. Wong (1992) 10 C.C.L.T. 2d 236.

[115]  Dube v. Penlon Ltd. (1994) 21 C.C.L.T. 2d 268.

[116]  Toneguzzo-Norvell v. Burnaby Hospital (1994) 1 S.C.R. 114.

[117]  Semenoff v. Kokan (1991) 84 D.L.R. (4th) 76.

[118]  Duncan (Estate of) v. Baddeley (2000) A.B.C.A. 277.

[119]  Brown v. University of Alberta Hospital (1997) 145 D.L.R. 4th 63; [1997] 4 W.W.R. 645 (Alta. Q.B.).

[120]  Granger v. Ottawa General Hospital (1996) 7 O.T.C. 81; (1996), 63 ACWS (3d) 1278, [1996] OJ No. 2129 (Ont. Gen. Div.).

[121]  Duncan (Estate of) v. Baddeley (1997) 196 A.R. 161.

[122]  Marchand v. Public General Hospital of Chatham (2000), 51 O.R. (3d) 97 (C.A.).

[123]  Saint John Regional Hospital v. Comeau (2001) MBCA 113.

[124]  Balkos v. Cook (1991) 75 O.R. 593.

[125]  Rayner v. Knickle (1991) 88 Nfld. & P.E.I.R 214.

[126]  Woollard v. Coles, 85 A.C.W.S. (3d) 564 (1998).

[127]  Galand Estate v. Stewart (1992) 135 A.R. 129.

[128]  Brooks (Estate of) v. Stefura (1998) 2000 ABCA 276.

[129]  Vorvis v. Insurance Corp. of British Columbia (1989) 1 S.C.R. 1085.

[130]  Muir v. Alberta (1996) 132 D.L.R. (4th) 695.

[131]  Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130.

[132]  Coughlin v. Kuntz (1989) 42 B.C.L.R. (2d) 108.

 

English cases cited:

[133]  Pope v. D. Murphy & Son Ltd [1961] 1 Q.B. 222.

[134]  Oliver v. Ashman [1962] 2 Q.B. 210; [1961] 3 All ER 323.

[135]  Pickett v. British Rail Engineering Ltd [1980] A.C. 136; [1979] 1 All ER 774.

[136]  Lim Poh Choo v. Camden & Islington Area Health Authority [1980] A.C. 174.

[137]  Croke v. Wiseman [1981] 3 All ER 852.

[138]  Phillips v. London & South Western Railway Co. [1879] 5 Q.B.D. 78.

[139]  Roach v. Yates [1938] 1 K.B. 256.

[140]  Harris v. Brights Asphalt Contractors Ltd [1953] 1 Q.B. 617.

[141]  Wise v. Kaye [1962] 1 Q.B. 638; [1962] 1 All ER 257.

[142]  McCann v. Sheppard [1973] 1 W.L.R. 540; [1973] 2 All ER 881.

[143]  Harris v. Empress Motors Ltd [1983] 3 All ER 561; [1984] 1 W.L.R. 212.

[144]  Phipps v. Brooks Dry Cleaning Services Ltd [1996] P.I.Q.R. Q100; 140 SJ LB 173.

[145]  Connolly v. Camden & Islington Area Health Authority [1981] 3 All ER 250.

[146]  Adsett v. West [1983] 2 All ER 985.

[147]  Gammell v. Wilson [1982] A.C. 27; [1981] 1 All ER 578.

[148]  White v. London Transport Executive [1982] Q.B. 489; [1982] 1 All ER 410.

[149]  Sullivan v. West Yorkshire Passenger Transport Executive [1985] 2 All ER 134.

[150]  Kandalla v. British European Airways Corp. [1981] Q.B. 158; [1980] 1 All ER 341.

[151]  Khodaparast v. Shad [2000] 1 W.L.R 618; [2000] 1 All ER 545.

[152]  Kuddus v. Chief Constable of Leicestershire Constabulary [2001] 3 All ER 193.

[153]  Cassell & Co. Ltd v. Broome [1972] A.C. 1027; [1972] 1 All ER 801.

[154]  Loudon v. Ryder [1953] 2 Q.B. 202; [1953] 1 All ER 741.

[155]  Rookes v. Barnard [1964] A.C. 1129; [1964] 1 All ER 367.

[156]  A.B. v. South West Water Services Ltd [1993] Q.B. 507; [1993] 1 All ER 609.

[157]  Australian Consolidated Press v. Uren [1969] 1 A.C. 590; [1967] 3 All E.R. 523.

[158]  A. v. Bottrill [2002] 3 W.L.R. 1406.

[159]  Heil v. Rankin [2000] 2 W.L.R. 1173; [2000] 3 All ER 138.

 

Irish cases cited:

[160]  Doherty v. Bowaters Irish Wool Board Ltd [1968] I.R. 277.

[161]  Conley v. Strain [1988] I.R. 628.

[162]  Conway v. INTO [1991] 2 I.R. 305.

 

New Zealand cases cited:

[163]  Taylor v. Beere [1982] 1 N.Z.L.R. 81.

 

South African cases cited:

[164]  Goldie v. City Council of Johannesburg, 1948 (2) S.A. 913 (W.).

[165]  Lockhat's Estate v. North British and Mercantile Insurance Co. Ltd (1959) 3 S.A. 295 (A.)).

 

For the appellants — Y. Neeman, B. Katzman.

For respondents 1-3 — Carmeli Arnon & Co.

For respondents 4-5 — M. Kaplinsky.

For respondent 6: Adv. Tz. Noach.

 

 

JUDGMENT

 

 

Justice E. Rivlin

Introduction

1.    The main issue that requires a determination in the distressing case before us concerns the right of a person, who is injured as a result of a tort and whose life expectancy is shortened, to compensation for the loss of his earning capacity in the ‘lost years,’ i.e., those years by which his working life expectancy was reduced as a result of his death. This very question was considered by this court in CA 295/81 Estate of Sharon Gavriel v. Gavriel [1]. The majority opinion in that case (President Y. Kahan, Vice-President M. Shamgar and Justice M. Bejski) held that in Israeli law the injured person is not entitled to compensation for this head of damage. The minority (Justices A. Barak and S. Levin) were of the opinion the court should recognize the right of an injured person to compensation.

Approximately twenty years have passed since the judgment in Estate of Sharon Estate v. Gavriel [1] was given, and the issue of the ‘lost years’ has come before us once again.

Background

2.    The late Michael Ettinger (hereafter — the deceased), who was born in 1976, was playing with a friend of the same age at a playground, close to his home, in the Jewish Quarter of the Old City of Jerusalem. He fell into the ‘Nea Archaeological Site,’ an unfenced pit, which has a concrete floor at the bottom, that was situated nearby (hereafter — the accident). The deceased suffered injuries to his head and was taken to hospital, where he died the next day. He was only twelve years old.

The appellants in CA 140/00 — the estate, parents and sister of the deceased — filed an action in the District Court, in which they argued that the estate should be awarded compensation for the lost earning years of the deceased. The appellants also asked that the respondents be found liable for punitive damages, in view of the conviction of respondents 1, 4, 5 and 6 in a criminal trial that was brought against them, on a charge of negligently causing the death of the deceased (an offence under ss. 304 and 309(5) of the Penal Law, 5737-1977). The appellants also asked that they should be awarded damages for the non-pecuniary damage of the reduction of the deceased’s lifespan.

According to a procedural arrangement reached between the parties, which was given the force of a court decision, the factual basis that was determined in the judgment in the criminal trial was submitted to the trial court, and it was submitted to us also. Within the framework of that arrangement, it was agreed also that the respondents waive any contention of contributory negligence on the part of the deceased or negligence on the part of his parents.

3.    The Jerusalem District Court (his honour Justice Y. Adiel) held that the rule in Estate of Sharon Gavriel v. Gavriel [1], which as aforesaid does not recognize the entitlement of an injured person to compensation for the loss of earning capacity in the ‘lost years,’ is still valid today, after the enactment of the Basic Law: Human Dignity and Liberty. Therefore the District Court dismissed the claim on this head of damage. The court also held that there was no basis for awarding punitive damages in this case. Nonetheless, in view of the fifty-nine years by which the life expectancy of the deceased was shortened, the District Court awarded compensation in favour of the estate for non-pecuniary damage, in an amount of NIS 350,000, with interest from the date on which the deceased died.

4.    The two appeals before us are directed against the judgment of the District Court. CA 140/00 is directed against the decision of the trial court on the issue of the ‘lost years’ and the punitive damages. The appellants argue that the changes that have taken place in Israeli law, since the rule in Estate of Sharon Gavriel v. Gavriel [1] was decided — including the enactment of the Basic Law: Human Dignity and Liberty — justify a re-examination of that decision. Earning capacity — so the appellants claim — falls within the constitutional property right, and an infringement of this right, by way of a reduction of life expectancy, requires, in their opinion, an award of compensation. According to the appellants, recognition of a right to compensation for the lost earning years is consistent with the remedial purpose that underlies the law of torts, and is consistent with considerations of justice, in that it can prevent a situation in which wrongfully causing death leads to lesser financial consequences that causing personal injury. Such compensation is also required, in the appellants’ opinion, in view of policy considerations that require an effective deterrent. The appellants also point to the fact that the rule in Estate of Sharon Gavriel v. Gavriel [1] addressed the provisions of the Road Accident Victims Compensation Law, 5735-1975 (hereafter — the Compensation Law), whereas here we are dealing with a claim under the Torts Ordinance [New Version] (hereafter — the Ordinance or the Torts Ordinance). According to them, the two are not the same in so far as the justification for compensation for the loss of earning capacity in the ‘lost years’ is concerned.

The appellants complain, as aforesaid, also about the decision of the trial court not to find the respondents liable for the payment of punitive damages. In this matter they argue that the conduct of the respondents, as expressed in the criminal judgment against them, indicates apathy, indifference and blatant contempt for human life. This conduct led to a tragic result. Therefore, the appellants are of the opinion that the respondents should be found liable for the payment of punitive damages.

The respondents, for their part, are of the opinion that no intervention is required in the District Court decision not to award the appellants compensation for the loss of the deceased’s earning capacity in the ‘lost years.’ According to them, there is no justification for departing from the rule determined in Estate of Sharon Gavriel v. Gavriel [1], and in essence they relied on the reasons given there. The respondents also claim that no intervention is required in the decision of the District Court not to award the appellants punitive damages. In this respect, the respondents argue that it is doubtful whether the court, under the provisions of Israeli law, has jurisdiction to award punitive damages, and that in any event in their case there was no element of intention or deliberateness, which is a condition for awarding such damages.

In the counter-appeal, the respondents argue that the court was excessive in the amount that it awarded for the non-pecuniary damage arising from the reduction of the deceased’s life expectancy. In their opinion, the amount that was awarded for this head of damage is inconsistent with the abundant case law, and in this case, so they claim, the fixed tariff in the Compensation Law should be used, for the non-pecuniary damage, as the criterion for awarding compensation.

5.    An additional dispute between the parties broke out within the framework of the enforcement of the judgment given by the trial court, and it concerns the question of what is the date as of which the amount awarded for the reduction of life expectancy should be calculated. The Chief Enforcement Officer applied, in this regard, to the District Court, by virtue of his power under section 12 of the Enforcement Law, with a request for clarification. The District Court clarified that the amount that was awarded was calculated and determined as of the date of the judgment. The appellants in CA 550/01 object to this decision, and they also claim that the amount that was awarded for the reduction of life expectancy is too little, does not reflect the damage caused and is inconsistent with prevailing case law.

The appellants also complain, within the framework of CA 550/01, that the District Court did not award the estate compensation for pain and suffering. The honourable registrar of this court, Justice B. Okun, granted the appellants an extension of the time for filing the appeal in this matter.

6.    We will consider the questions in the appeals before us in the following order. First we will consider the fundamental question concerning the right to compensation for the loss of earning capacity in the ‘lost years,’ and the specific question concerning the entitlement of the deceased’s estate to compensation for this head of damage. Next we will consider whether there were grounds, in the circumstances of this case, to award the appellants punitive damages. Finally we will decide the other arguments raised before us. In the final analysis, we will recommend that the appeal in CA 140/00 should be allowed, in so far as the question of the ‘lost years’ is concerned, and that there are no reasons for intervention in the other determinations of the trial court.

The issue of the ‘lost years’

Presentation of the issue

7.    The awarding of compensation in the law of torts has the primary purpose of placing the injured person in the position he would have been in had it not been for the wrongful act, in so far as it is possible to do this by means of a pecuniary payment (CA 22/49 Levy v. Mosaf [2], at p. 564; CA 357/80, Naim v. Barda [3], at p. 772; A. Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) 243 (1983)). The compensation for the loss of earning capacity is also intended to achieve this purpose. This compensation — which belongs to the category of pecuniary heads of damage — takes into account the harm to the earning capacity of the injured person as a result of the wrong that was done to him. Therefore, if a person suffers personal injury as a result of a tortious act, and he is no longer able to continue working as before, the court will award him compensation for the loss of earning capacity. The amount of the compensation will be determined in accordance with the capitalized value of the difference between the potential earning capacity of the injured person, had the damage not occurred, and his actual earning capacity after his injury (see FH 29/83, Sahar Insurance Co. Ltd v. Cahanka [4], at p. 836).

The loss of earning capacity is examined, of course, also by taking into account the working life expectancy of the injured person. ‘Indeed, it is well-known that when formulating a “compensation equation,” for the purpose of the loss of earning capacity in the future, the length of the period for which the calculation is made is one of the main elements’ (D. Katzir, Compensation for Personal Injury (fourth edition, 1998), at p. 241). But the question is — and this is the main focus of the appeal before us — does the reduction of the working life expectancy of the injured person, as a result of a tortious act, have any effect on the compensation that will be awarded for the head of loss of earning capacity?

The question before us therefore concerns those cases in which the life expectancy of the injured person is shortened, as a result of the tortious act, to less than the retirement age that he would have had if it had not been for that act. Sometimes the reduction of life expectancy is partial, i.e., the injured person does not die shortly after the accident, but he is expected to live a shorter period of time as a result of the accident. In other cases, the reduction of the life expectancy is total, meaning that the injured person dies in the accident or shortly thereafter, with the result that he is unable to file a claim for his damage. Whichever is the case, the question arises as to whether the injured person (whose life expectancy was partially reduced and who files a claim when he is still alive) or his estate (when the injured person dies before filing a claim) is entitled to compensation for the loss of earning capacity in the ‘lost years’ — those years in which he was expected to earn from his labour, had his life not been shortened by the wrong. This question was left undecided in CA 95/55 Salomon v. Adler [5], at p. 1912, and it was decided by a majority, as aforesaid, in the decision of the Supreme Court in Estate of Sharon Gavriel v. Gavriel [1]. We will first focus on the ruling that was decided in that case.

The ruling in Estate of Sharon Gavriel v. Gavriel

8.    The late Sharon Gavriel was killed in a road accident, when she was approximately eight years old. Her estate filed a claim under the Compensation Law, inter alia for the loss of earning capacity.

The majority opinion in that case was that whether the case involves an injured person who is alive and whose life expectancy has been shortened, or the estate of an injured person who has died, the court should not recognize damage, nor award compensation, for the loss of earning capacity during the ‘lost years.’ President Y. Kahan, who wrote the leading majority opinion, said that an award of compensation for this head of damage meant a ‘minor revolution’ in the law of torts, and it was of significant economic consequences. President Kahan recognized that denying compensation to an injured person who is living for the ‘lost years’ may lead to an unjust result from the viewpoint of dependants, where at the time of death of the injured person he would not be entitled to compensation (either because he had been awarded compensation or because he received it in another way). This was because the provisions of s. 78 of the Torts Ordinance make the awarding of compensation to dependants conditional upon the injured person being entitled to compensation, when he passed away. However, President Kahan was of the opinion that there were no grounds for resolving this injustice by awarding compensation for the ‘lost years,’ since this, in itself, leads to other injustices that are even more serious. Consequently President Kahan held that the issue should be left to the legislature.

President Kahan further held that regarding earning capacity in the ‘lost years’ as an asset was ‘artificial,’ and so too was the reasoning making the award of the compensation conditional upon the injured person being unable to accumulate wealth and to make use of it as he sees fit. In President Kahan’s view, the ‘idea that a child who is killed in an accident suffers damage by being deprived of the possibility of working and earning throughout the whole period of a normal working life divorces the terms ‘pecuniary damage’ and ‘loss of an asset’ from their normal meaning and gives them an unrealistic meaning.’ President Kahan further thought that there were no grounds for extending the circle of supported persons beyond those persons specified by the legislator (namely the dependants), and he warned against a double payment to the estate and to the dependants and against a situation in which the compensation would fall into the hands of persons who suffered no damage, as an unjustified windfall. In summarizing his remarks, President Kahan said that ‘it is possible that the compensation for the head of damage of loss of life expectancy should be increased, and in this way expression should be given to the feeling of outrage against a situation in which, when the injury results in the death of the injured person, often the compensation does not at all reflect the seriousness of the injury.’ He further said that ‘it is possible that we should award, under the head of damage of pain and suffering, compensation for an injured person who is alive, for the suffering he endures as a result of his not being able to receive income and to make use of it as he sees fit.’

Vice-President M. Shamgar and Justice M. Bejski. each in his own words, joined with the opinion of President Y. Kahan.

9.    The opinion of Justice A. Barak, with which Justice S. Levin agreed, was different. Justice Barak thought that the court should recognize an entitlement to compensation under a head of damage of ‘the lost years’ — both in a claim of a living injured person and in a claim of the estate. Earning power, he said, is an asset that belongs to its owner, and a reduction in the working life expectancy of the living injured person amounted to an injury to this asset — an injury that ought to give rise to an entitlement to compensation. In this regard, Justice Barak thought, it makes no difference, nor is it the concern of the tortfeasor, whether the injured person can enjoy the compensation money or not. Even an injured person who as a result of a tort is in a permanent vegetative state — he emphasized — cannot enjoy any of the material benefits of this world, but he is entitled, according to case law, to compensation for loss of earnings. Policy considerations also, he held, support a conclusion that the loss of earnings of a living injured person in the ‘lost years’ should be recognized as damage that is compensatable. In this regard Justice Barak mentioned the case of dependants and persons who are supported without being dependants for whom the award of compensation for the ‘lost years’ will ensure that they are supported.

With regard to the estate, Justice Barak held that recognition of the right of the living injured person to compensation for the ‘lost years’ also leads, under prevailing law, to the recognition of the right of the estate to compensation under this head of damage. Moreover, the award of compensation to the estate for the ‘lost years’ means supporting various persons who are ‘dependants.’ The concern that the tortfeasor may be found liable to pay twice can be allayed — so Justice Barak held — by subtracting the amounts paid to dependants for loss of support from the compensation to the estate.

10. Since then, the issue of the ‘lost years’ has not been considered in this court on its merits, but the courts have relied on Estate of Sharon Gavriel v. Gavriel [1] in several cases (see, for example, CA 116/81 Estate of Aharon Knafo v. Arnon Tussia Cohen [6]; CA 248/86 Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7]; CA 642/89 Estate of Meir Schneider v. Haifa Municipality [8]; CA 4022/98 The Technion, Israel Technological Institute v. Twister [9] (in this judgment the question of compensation did not arise with regard to the lost years of earnings, but with regard to other heads of damage in the ‘lost years’); see also CA 110/86 Gevaram v. Heirs of the late Shalom Manjam [10], at p. 199, in which Justice H. Ariel mentioned the rule in Estate of Sharon Gavriel v. Gavriel [1], and said that in that case he tended towards the minority view). It seems to me that the passage of time, the new trends in awarding compensation in Israeli law and the changes that have occurred in other legal systems all justify a re-examination of the rule that was decided in Estate of Sharon Gavriel v. Gavriel [1] by a majority of three judges to two. Indeed, the ‘book of judicial case law is open, and new chapters are written in it all the time. These are built on the past, reflect the present and form a basis for the future. Movement is unceasing. Change is perpetual’ (HCJ 693/91 Efrat v. Director of the Population Register at the Ministry of Interior [11], at p. 796).

Let us turn, therefore, to examine the reasons and the arguments that have been made — both for and against — with regard to the awarding of compensation for the loss of earning capacity in the ‘lost years,’ and let us begin with the claim of a living injured person.

Compensation for the ‘lost years’ of earning: claim of a living injured person

11. The opinion of Justice Barak in Estate of Sharon Gavriel v. Gavriel [1] was based both on ‘technical’ considerations — looking at the issue from the viewpoint of the injured person — and ‘policy’ considerations — mainly concerning persons supported by, and dependent on, the injured person. We too will follow this path that Justice Barak delineated.

The viewpoint of the injured person

Restitutio in integrum

12. It is not unusual that the life expectancy of a person, who is injured as a result of a tortious act, is shortened to less than the retirement age that he would have anticipated had the damage not occurred. In the past, medicine had difficulty in providing a diagnosis, with the degree of proof required in a civil trial, to the effect that the life expectancy of an injured person was shortened as a result of the accident. Consequently, compensation was awarded according to the normal life expectancy of the injured person. The significance of this is that, in practice, compensation was awarded also for the loss of earning capacity in the ‘lost years,’ although this was not for substantive reasons of principle but rather for reasons that were mainly technical and evidential.

The tools that are today at the disposal of scientists and doctors led to a significant change in this regard, and they often make it possible to prove, on a balance of probabilities, that the life expectancy of the injured person — and consequently also his working life expectancy — has been reduced (see J.G. Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ 50 Cal. L. Rev. 598 (1962), at pp. 598-600). The result, somewhat paradoxically, is that in legal systems where compensation is awarded for loss of earnings according to working life expectancy after the accident (i.e., when the ‘lost years’ are not recognized), scientific advancement, and with it the possibility of proving a reduction of life expectancy, has reduced the amount of the damages awarded for the head of loss of earnings. In other words, in those legal systems that do not recognize a right to compensation for the lost years of earning, the proof of a reduction of life expectancy reduces the compensation for loss of earnings. The profits that the injured person could have made in the years of life that have been lost are not claimable in these legal systems. So we find that there are cases in which the tables are turned and it is actually the injured person who argues for a long life expectancy, whereas the tortfeasor argues for a significant reduction of life expectancy (see, for example, CA 2939/92 General Federation Medical Fund v. Rachman [12]; CA 4022/98 The Technion, Israel Technological Institute v. Twister [9]). Is this strange result consistent with the rules of awarding compensation in the law of torts? As will be seen, the answer to this is no.

13. There is no need to dwell upon the potential harm to the interests of the injured person and his way of life, as a result of a reduction of his life expectancy, and upon the suffering involved in a person knowing that he has lost years of his life expectancy that he would have had if he had not been injured by the tort. We are dealing with another potential outcome of the reduction of life expectancy, namely the harm to the earning capacity of the injured person in the ‘lost years.’

The remedial purpose underlying the awarding of damages in the law of torts is, as aforesaid, the removal of damage and compensation for it, in order to return the injured person, in so far as possible, to the position in which he would have been had he not been injured by the tort (see A. Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ supra, at pp. 249-251). The awarding of compensation can be compared to a balance — an external balance and an internal balance. On one pan of the external balance lies a weight marked ‘before,’ which examines what the position of the injured person would be had the accident not occurred. On the other pan of the external balance lies a weight marked ‘after,’ which examines the position of the injured person in consequence of the accident. The compensation serves a single purpose — to balance the scales. To this end, one must also take into account the internal balance that are factors in the ‘after’ pan of the external balance. On one pan of the internal balance lies a weight marked ‘loss.’ One must examine the losses of the injured person as a result of the accident. On the other pan lies a weight marked ‘gain.’ One must examine the advantages and gains that the injured person has received — if any — as a result of the accident. Weighing the loss and the gain that were caused to the injured person as a result of the accident gives a complete picture of the injured person’s position after the accident, and allows this to be weighed against what the position of the injured person would have been had the accident not occurred. Only then is it possible to award the injured person an amount of damages that will correct the imbalance caused as a result of the accident. It is not for nothing that the English word ‘compensation’ comes from the Latin word compensatio, whose basic meaning is a ‘joint weighing’ of one thing against another.

14. From this ‘remedial’ outlook in the laws of compensation we derive the rule that where a person suffers damage as a result of a tort, and this is expressed in a loss of his earning capacity in comparison to the capacity he would have had if it had not been for the tort, the injured person has a right to compensation. The assessment of the compensation is made in accordance with the difference between the earning capacity of the injured person without the tortious act (if the tortious act had not occurred) and his earning capacity as a result of that act (CA 70/52 Grossman v. Roth [13], at p. 1251; CA 79/65 Israel Steel Enterprises Ltd v. Malca [14], at p. 270). We must therefore examine the difference between the earning capacity that the injured person had before the accident and the earning capacity that remains after the accident, taking into account his disability (see CA 5794/94 Ararat Insurance Co. Ltd v. Ben-Shevach [15]). This leads to the question: what difference is there between an injured person, who suffers an injury that deprives him of his earning capacity in its entirety, and an injured person whose life expectancy has been shortened and whose earning capacity in the ‘lost years’ has been lost? Both of these have lost their earning capacity, and they therefore claim pecuniary compensation that will place them — in so far as possible — in the position they would have been in had it not been for the tortious act. Had it not been for the accident, both the one and the other could have earned a certain amount that would have been used by them and their family members, but as a result of the accident they no longer have this possibility.

It appears, therefore, that in so far as ‘returning the injured person to his original position’ is concerned — from a study of the external balance — it is difficult to find a real reason that justifies a different attitude towards an injured person who lost his earning capacity but whose life expectancy remained as before, as compare with an injured person whose life expectancy has been shortened. With regard to the latter we should also examine the amount that he could have earned had the accident not occurred — i.e., the earning capacity that he would have had if it had not been for the accident, taking into account the life expectancy that he anticipated shortly before it occurred — and we should compare this amount with the amount that he is able to earn after the accident, taking into account the earning capacity and life expectancy that remain. The difference expresses the reduction in earning potential of the injured person as a result of the accident. The reason for this is that it is not possible to speak of earning capacity while ignoring the earning period. This was discussed by D. Katzir:

‘Awarding compensation, within the framework of “pecuniary damage” for loss of earning capacity, ought to reflect the full difference in the earning capacity of the injured person before the injury as compared with his earning capacity after it; this earning capacity, in the view of Justice Barak, constitutes an “asset that belongs to its owner”…, which entitles him to compensation in the event that he is injured. It is well-known that this capacity is a function of the length of the period in which it will find expression… no significant difference should be recognized between full loss of earning capacity resulting from the injury, and the full loss of certain years in which this capacity will not find expression. Just as in the first case the injured person is entitled to full compensation, so too is he entitled, in principle, to full compensation in the second case’ (Katzir, Compensation for Personal Injury, supra, at pp. 269-270).

It should be noted that the risks that the injured person faces, including the risk of a reduction of life expectancy, are taken into account in the compensation — negatively — only in so far as concerns the question of risks that would that he faced even before the accident. Where these risks are a function of the accident, there is no basis for deducting them from the compensation to which he is entitled. This is an ‘absolute rule’ that underlies the idea of returning the injured person to his original position. The outcome is that in awarding the compensation for loss of earning capacity, the life expectancy of the injured person before the accident should be taken into account.

15. A similar approach has been expressed also in the rulings of courts in other countries. For example, in Skelton v. Collins [106], the High Court of Australia held that:

‘… what is to be compensated for is the destruction or diminution of something having a monetary equivalent… I cannot see that damages that flow from the destruction or diminution of his capacity [to earn money] are any the less when the period during which the capacity might have been exercised is curtailed because the tort cut short his expected span of life’ (at p. 129).ב

In one case in the United States, the court considered the distressing case of a child who, when he was five years old, was infected with the AIDS virus as a result of an infected blood transfusion. His claim under the Federal Tort Claims Act was accepted, and the Federal Court awarded him compensation for the loss of earning capacity in the years of life that he could have anticipated, had it not been for the accident, after deducting from this amount the living expenses that he required in the ‘lost years.’ The court wrote in that case, with regard to awarding the compensation for the loss of earning capacity in the lost years of life:

‘Using a postinjury rather than a preinjury work life expectancy to calculate lost earning capacity would violate fundamental principles of the law governing damages and would produce an absurd and unjust result... the measure of damages for lost earning capacity is the amount by which the plaintiff's ability to generate earnings has been diminished as a result of the defendant's negligence. It should make no difference whether that diminution takes the form of a reduction in the salary the plaintiff is able to command or a decrease in the number of years the plaintiff is able to work. In either case the net result is that the ability to generate earnings is lessened because of the defendant’s negligence. Depriving a plaintiff of the right to recover for that portion of his loss attributable to a shortened work life expectancy would frustrate the objective of making the plaintiff whole. Moreover, it would permit the tortfeasor to benefit from the consequences of his own wrongful act at the expense of the innocent victim. Such a result would be inconsistent with both law and logic. Indeed, the weight of authority is that loss of earning capacity should be measured over the course of the work life expectancy the plaintiff would have had if no injury had been sustained’ (Doe v. United States (1990) [80]).ו

Similarly in England Justice Streatfield criticized the approach whereby the defendant may argue against the injured person, whose life expectancy has been shortened, that the latter has a right to compensation, for loss of earnings, only for the years that the defendant has left him:

‘If that indeed is the law, then I respectfully suggest that it would be very unjust, because, after all, the object of damages, as I understand them, is to do the best they can to compensate a man who has been injured, for what he has lost. What he has lost... is not only the ability to earn X Pounds a year, but the ability to earn it over that period of time that he might reasonably expect it’ (Pope v. D. Murphy & Son Ltd [133]).נ

16. It follows that the basic principle of the law of torts, according to which the compensation awarded should make the damage good and return the injured person, in so far as possible, to the position he would have been in had it not been for the tortious act, supports the awarding of compensation to the living injured person for the loss of earning capacity in the ‘lost years.’ This is because the loss of earnings is spread over units of time whose length is the length of the working life expectancy that the injured person had before the accident. The compensation for the ‘lost years’ is therefore capable of remedying the unequal state of affairs that was created as a result of the tortious act. It offers a solution to the injustice that is inherent in the denial of the right of compensation to someone who is not able to realize his earning capacity, because of a reduction of his life expectancy brought about by a tort, while at the same time compensation is awarded to someone whose inability to realize his earning capacity derives from his being injured by a tort. This results in it being cheaper to kill than to wound. It should be noted that we are not concerned with punishing the tortfeasor but with studying the balance and refraining from an unjust reduction of the compensation merely because of the fact that in addition to the harm to the injured person’s earning capacity the tortfeasor also caused him a reduction of his life expectancy.

In this spirit it has been held in the United States for many years that the loss of earning capacity of the injured person should be assessed according to the life expectancy that he anticipated before the injury, based upon an approach that there is no reason to reduce the pecuniary liability of the tortfeasor merely because of the extreme seriousness of the consequences of his acts (see Prairie Creek Coal Mining Co. v. Kittrell [81]; Littman v. Bell Telephone Co. of Pennsylvania [82]; Comment: The Measure of Damages for a Shortened Life, 22 U. Chi. L. Rev. 505 (1955), at p. 506. Especially apposite in this regard are the remarks of Judge Weinstein in In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 428:

‘Calculating damages for lost earning capacity based on the victim’s pre-injury life expectancy has been criticized as overcompensating the plaintiff, because no deductions are made for his or her living expenses between the time of projected actual death and the time death probably would have occurred had there been no injury. It has been viewed, however, as the “lesser of two evils.” The alternative method of awarding damages based on the victim’s shortened life expectancy would, in effect, reward the defendant for having successfully injured the plaintiff so severely as to curtail his or her life span, and would under-compensate plaintiff’s dependents for the loss of support during those lost years’ (at p. 428).

We can already point out, and we will dwell on this below, that the difficulty inherent in over-compensation, which is raised at the beginning of Judge Weinstein’s remarks, is solved in most legal systems by means of a deduction of the living expenses that were required by the injured person in the ‘lost years’ from the amount of compensation.

17. It is accepted that the law of torts has another purpose, which sits alongside the purpose of doing justice, and that is to provide an effective deterrent (see CA 44/76 Atta Textile Co. Ltd v. Schwartz [16]; see also CFH 7794/98 Ravid v. Clifford [17]). The law of torts is regarded by many as a tool for furthering the goal of channelling the collective social benefit (for a general discussion, see I. Gilead, ‘On the scope of the effective deterrent in the law of torts,’ 22 Mishpatim 437 (1993)). This is achieved, inter alia, by creating a legal system that makes the tortfeasor act carefully by internalizing the consequences that follow from his actions. For this purpose, it is desirable that the tortfeasor should indeed pay for all the damage that he caused by the tort. The tortfeasor should pay, at least, the amount of the loss (L) in the Hand formula (see R.A. Posner, Economic Analysis of Law (fourth edition, 1992), at p. 176; for calculating the Hand formula, see United States v. Carroll Towing Co. (1947) [84]). Indeed, imposing compensation in an amount that exceeds the damage or an amount less than the damage is likely to lead to undesirable results. This was discussed by Polinsky and Shavell, who pointed out that in the system of liability for negligence, which relies on the Hand formula, it is important that the compensation is equivalent to the damage:

‘Under the negligence rule, if damages equal harm, potential injurers will be led to comply with the negligence standard… and thus to take appropriate precautions. If a precaution costing $50,000 would prevent a harm of $100,000, the threat of having to pay damages of $100,000 for not taking the precaution would induce a party to spend $50,000 on the precaution. However, if damages are less than harm, the negligence standard might not be met and underdeterrence would result. In the example, if damages are only $40,000 (even though harm is $100,000), the party would not be led to take the precaution costing $50,000’ (A.M. Polinsky & S. Shavell, ‘Punitive Damages: An Economic Analysis,’ 111 Harv. L. Rev. 869 (1998), at p. 882).

It follows from the aforesaid that if the tortfeasor is likely to pay compensation that is less than the damage caused, his deterrent is defective, and because of this he is likely to continue his undesirable activity, or to refrain from adopting precautions whose cost is less than the damage (see A. Porat, ‘Collective Responsibility in the Law of Torts,’ 23 Mishpatim 311 (1994)). This can undermine the goal of effective deterrent. In our case, denying compensation for the ‘lost years’ can create a situation in which, despite the serious damage caused as a result of the tortfeasor’s act, he will be exempt from the obligation to pay compensation for a significant part of the damage. There is no doubt that where the working life expectancy of the injured person is shortened, the damage of loss of earning capacity extends also to the ‘lost years.’ Leaving this damage without compensation means impairing the general deterrent.

Consider, by way of example, two tortious scenarios: in the first scenario, the tortfeasor causes the injured person, by means of a tort, a serious physical handicap, which deprives the injured person of any ability to work and earn money, even if his life expectancy is not shortened. In the second scenario, the tortfeasor, by means of a tortious act, causes, in addition to the serious physical handicap, also a reduction of the life expectancy of the injured person, and consequently to the injured person being unable to work and earn money. In so far as the loss of earning capacity is concerned, there is no substantive difference between the damage that the tortfeasor caused in the first scenario and the damage that the tortfeasor caused in the second scenario (on the assumption that the injured person is the same). In the two cases, the amount of the damage is the amount that the injured person expected to earn throughout the years of his working life that he would have had if it had not been for the accident (for the methods of calculating this amount, see, for example, CA 30/80 State of Israel v. Asher [18]; CA 722/86 Youness v. Israel Car Insurance Pool [19]). However, according to the approach that denies the right to compensation for the loss of earning capacity in the ‘lost years,’ there is likely to be a significant difference between the two scenarios, from the viewpoint of the amount of compensation for this damage; the tortfeasor in the second scenario will not be held liable for the full amount of damage that he caused by means of the tort, and therefore we cannot expect him to consider the consequences of his torts before he acts. The deterrent effect is, consequently, defective. But awarding compensation to the injured person for the loss of his earning capacity in the ‘lost years’ (while taking into account the expenses that the injured person is ‘saved’ during those years) will result in a full internalization of the costs arising from the tortfeasor’s acts.

It should be noted that the economic consideration that we have been discussing cannot decide the question before us. It can only add an extra dimension to the argument that denying compensation for the ‘lost years’ is problematic, in view of the guiding principles in the doctrine of compensation and in view of the accepted goals that the law of torts is intended to achieve.

Is it really true that ‘without life there is no loss of capacity’?

18. There are those who believe that in view of the fact that the injured person will not be alive during the ‘lost years,’ there is neither a need nor a justification for compensating him for loss of earning capacity in those years. According to this approach, ‘it is not earning capacity that the injured person has lost, but he has lost life itself, and without life there is no loss of capacity’ (see Oliver v. Ashman [134]; for a discussion of this argument see Estate of Sharon Gavriel v. Gavriel [1], at p. 548). This argument cannot be accepted. Alongside the loss of years, the injured person also lost the capacity to obtain income during those ‘lost years.’ We should remember that the law of torts does not purport — since it does not have the power needed to do this — to return the injured to his actual original position. ‘No money in the world can compensate for the suffering of the body and soul, the loss of opportunities to have a family, or the loss of the pleasures of a normal life. However, since what has been taken has been taken, and what has been lost has been lost, and it is not possible to return the injured person to his original position, and the compensation must be expressed in money, the money ought somehow to answer the question’ (see CA 541/63 Reches v. Hertzberg [20], at p. 126). ‘Returning the injured person to his original position’ — so it was written — ‘is not possible in the sense that the pain that has been suffered cannot be erased and the life expectancy that was reduced cannot be extended. But this does not prevent returning the injured person to his original position in a certain sense’ (A. Barak, The Law of Torts — General Principles of Torts (second edition, 1976, G. Tedeschi ed.), at p. 574). Indeed, the very nature of tortious compensation — especially when we are speaking of compensation for personal injury, and even more so when we are speaking of compensation for future damage — means that the compensation has something fictitious, speculative and artificial about it. Money cannot replace a damaged limb, the suffering involved in loss of a place of work, and it can certainly not replace years of life that have been lost. However, this alone cannot undermine the power of the courts to award compensation, in so far as this is necessary in order to bring the injured person as close as possible to the position he would have been in, had the damage not occurred. ‘Compensation will not bring the injured person back to life, but it will provide a pecuniary valuation of the pecuniary value of the loss’ (Estate of Sharon Gavriel v. Gavriel [1], at p. 551). The compensation will not prevent the suffering, but it can make the suffering bearable.

19. An injured person, who on account of a tortious act lost his life or had his life expectancy reduced, is entitled — and there is no dispute as to this in our legal system — to compensation for the non-pecuniary damage inherent in the loss or the reduction of life expectancy (see CA 773/81 Estate of Robert Freilich v. State of Israel [21]). Depriving the injured person of years of life — the ‘lost years’ — is considered, therefore, to be non-pecuniary damage that is compensatable. But this loss leads to another loss — the loss of income that would have accrued to the injured person from his work in those ‘lost years.’ According to this outlook, the injured person has lost an ‘asset,’ namely his work capacity, which was expected to bring him income. This was discussed by Justice Dickson of the Canadian Supreme Court, who said:

‘It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made… A capital asset has been lost: what was its value?’ (Andrews v. Grand & Toy Alberta Ltd. [112], at p. 251).

This was repeated in the leading judgment of the House of Lords in Pickett v. British Rail Engineering Ltd [135], in which Lord Wilberforce criticized the approach that denied entitlement to compensation for the ‘lost years’ in this language:

‘Does it not ignore the fact that a particular man, in good health, and sound earning, has in these two things an asset of present value quite separate and distinct from the expectation of life which every man possessed?’ (at p. 149).

Indeed, when we are speaking of the damage of the loss of earning capacity, we are not speaking of a series of future losses, but of an immediate loss, here and now (see S.M. Waddams, The Law of Damages (loose-leaf edition), Toronto, Canada Law Book, 2003, at § 3.710). This was held in England (Pickett v. British Rail Engineering [135]), in Canada (Andrews v. Grand & Toy Alberta Ltd. [112]; The Queen in right of Ontario v. Jennings [113]), in Australia (see Skelton v. Collins [106]) and in the United States (for the approach accepted there, see Mclaughlin v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., (1966) [85]).

20. In this respect, we should reconsider the theoretical and practical distinction between compensation for loss of earnings and compensation for loss of earning capacity. If we are speaking of compensation for loss of earnings, then the only question is what would the injured person have earned in practice, had it not been for the accident. Thus, for example, a person who is a qualified engineer, who does not work but cares for his children, is not entitled, according to this approach, to compensation for the head of loss of earnings. This is not the case according to the outlook that regards earning capacity as a valuable asset, which, if taken away from its owner, is compensatable damage. According to this approach, the compensation is given after taking into account what the injured person could have earned, had it not been for the injury. Thus, for example, a woman who is a qualified lawyer, is entitled to compensation in accordance with this qualification, even if at the time of the accident she did not work as a lawyer nor even intended to work as such (J. Cassels, Remedies: The Law of Damages (2000), at p. 125).

It should be noted that in Israeli law (as well as in other legal systems) the distinction between loss of earnings and loss of earning capacity is not always observed, and it appears that case law moves on both tracks at the same time, or perhaps it is more correct to say — on a middle track (see also Katzir, Compensation for Personal Injury, supra, at pp. 257-258). Thus, for example, the willingness to award compensation to a child for loss of earnings reflects an approach that recognizes loss of earning capacity as compensatable damage. Moreover, in one case Justice Y. Shilo expressed the opinion that:

‘The tortfeasor must [therefore] compensate a person for a reduction in working capacity as a result of a wound, for which he is responsible, and it makes no difference whether the reduction in work capacity leads in the future to a reduction in income or not. The damage that requires compensation is the damage to the person’s capacity to work for remuneration, according to the scope determined at the time of giving the judgment, and the arguments of the tortfeasor that the injured person in any event does not make use of this capacity nor will he do so in the future will not be heard’ (CA 237/80 Barsheshet v. Hashash [22], at p. 296).

Justice Barak, on the other hand, preferred the ‘tangible’ approach, according to which:

‘The value of the earnings that the injured person would have made in the future had it not been for the accident is determined in accordance with the personal details of the injured person, taking into account his desires and intentions. The test is not according to theoretical earnings, which he was likely to earn if he had used all of his abilities. The test is according to tangible earnings, which he was likely to earn by using his abilities in practice. It follows that if for any reason the injured person does not make use of his ability in the present or in the future, there is no injury to his capacity, since this capacity is not utilized in practice’ (ibid., at p. 300).

Therefore Justice Barak held that ‘for compensation of loss of earning capacity one must point to the existence of a possibility, which is not merely hypothetical, that the injured person would have had earnings in the future, had it not been for the accident, and that the accident harmed these earnings’ (ibid., at p. 307).

It appears that the proper approach is the one delineated by Justice Barak. According to this approach, the harm to earning potential is, indeed, compensatable damage, provided that there exists a possibility, which is not negligible or completely speculative, that this potential would have been realized. But in any case, there is no dispute that the earning potential is an asset that belongs to its owner. The earning potential, in this sense, reflects the ‘economic horizon’ of the injured person, and the compensation for loss of earning capacity in the ‘lost years’ is intended to compensate the injured person for the reduction of this horizon (see In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 427). The assessment of the loss is another question.

21. As an additional remark on this subject, the statement of Lord Justice Pearce in Oliver v. Ashman [134], that ‘what is lost is an expectation, not the thing itself’ seems to me problematic. Whenever we speak of loss of earning capacity, we are speaking of the loss of an expectation. The loss of capacity means a loss of the expectation or possibility of realizing the capacity, and this, in fact, is ‘the thing itself.’ Similarly, the approach shown by Lord Justice Pearce, ibid., that one cannot speak of loss of earnings when a person died early, because ‘he is no longer there to earn them, since he had died before they could be earned’ seems to me problematic. Even a person who is paralyzed in his four limbs but remains alive is not ‘there’ in order to earn income, since he was injured before he could earn it. The same is true of any person whose earning capacity is impaired. Indeed, it is not life or death that determine the issue, but the capacity to earn income. In this respect another question arises, namely whether the fact that the injured person cannot enjoy the compensation during the lost period can deny his right to receive it. This question will be considered now.

Is it really true that when there is no benefit from the compensation there is no compensation?

22. Depriving the injured person of years of life, which harms his ability to earn, is, therefore, an impairment of his earning capacity, which is an asset that belongs to its owner. Should this injury be left without compensation, merely because the injured person cannot, because of his anticipated death, enjoy the compensation? The answer to this is no.

In Oliver v. Ashman [134] Justice Wilmer wrote the following:

‘For what has been lost by the person assumed to be dead is the opportunity to enjoy what he would have earned, whether by spending it or saving it. Earnings themselves strike me as being of no significance without reference to the way in which they are used’ (at p. 240)

Another approach in this matter was stated by Justice Barak in Estate of Sharon Gavriel v. Gavriel [1]:

‘It is true that the injured person who is living will not himself be alive during the lost years and will not be able to use the income that he will receive, but this is of no significance, since the question is not what use the injured person will make of his money in the future but what use has he been prevented from making. As a result of the tortious act, the injured person’s ability to do what he wishes with his income has been impaired… the pecuniary compensation cannot return to the injured person life itself, but it can return to him the pecuniary value of his earning capacity that was impaired’ (Estate of Sharon Gavriel v. Gavriel [1], at p. 548).

23. Admittedly, the assumption is that the injured person will not be fortunate enough to live during the ‘lost years,’ and therefore he cannot enjoy the compensation money for the loss of income in those years. But this is of no significance. Just as we compensate the injured person or his estate for the non-pecuniary damage involved in the reduction or loss of life expectancy, and just as we compensate the injured person who is in a permanent vegetative state or who lost in some other way the ability to derive enjoyment from the compensation money (see Naim v. Barda [3], at pp. 783-784; Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ supra, at p. 259; see also CA 141/89 Mahmoud v. Shamir Insurance Co. Ltd [23]; Lim Poh Choo v. Camden & Islington Area Health Authority (1980) [136]), so too we should not refrain from awarding compensation to an injured person who is alive for the lost years of earning:

‘For the purpose of determining the “compensatable damage” — as distinct from determining the amount of the compensation — it is not important, nor does it concern the tortfeasor, whether the injured person can enjoy the money that he received or not… just as an injured person who is in a permanent vegetative state cannot realize his income in the lost years, so too the injured person who is alive; and like the injured person who is in a permanent vegetative state he is entitled, notwithstanding, to compensation for loss of earnings in these “lost years.” Moreover, even if the injured person who is alive cannot use his income “during the lost years,” he can make use of his income for the “lost years,” in order to ensure that after his death the purposes that are important to him will continue as they would have continued if he had continued to live and work’ (Estate of Sharon Gavriel v. Gavriel [1], at p. 550).

Take the case of someone aged 50, who works for his living and is expected to continue to do so until the age of 65. This person is reduced to a permanent vegetative state as a result of a tortious act, and his doctors predict his life expectancy to be two years, during which he will remain in the permanent vegetative state and will not open his eyes. According to the prevailing law, this person will be entitled to compensation for the two years during which he will lie in hospital, unconscious, but he will not have a right to compensation for the thirteen years of earning that he would have had but will no longer have. This result is devoid of justice and logic.

The remarks of S.M. Waddams in his book The Law of Damages, supra, are apposite here:

‘Many would say instinctively that a person cannot be said to suffer a financial loss during a period when the person will not be alive to enjoy the use of any compensation that might be awarded for lost earnings. However, this view would lead also to the denial of recovery in the case of a plaintiff rendered permanently unconscious for of such a person it can also be said that the person will not be able to enjoy the use of compensation’ (at § 6.800).

            In Croke v. Wiseman [137], Justice Shaw brought an example which, even though it is not identical to our case, serves to emphasize the claim that the question of the injured person’s capacity to enjoy the compensation money is irrelevant to the actual entitlement to the compensation: a very wealthy person whose leg was amputated in an accident will not derive any profit or benefit from the compensation money that his existing resources cannot provide him. But the fact that the compensation money does not give him anything does not deny him of the actual right of receiving it (ibid., at p. 863).

24. Moreover, even if the heirs benefit from the compensation rather than the injured person, this is not a matter for the law of torts to concern itself with. It is merely a consequence of the laws of inheritance. In any event, there is no difference, in this respect, between the compensation for the loss of earnings in the ‘lost years’ and any other compensation to which the injured person is entitled and which passes to his heirs when the injured person passes away (Estate of Sharon Gavriel v. Gavriel [1], at p. 552). Thus, for example, in a case where the injured person was caused pain and suffering as a result of the tortious act, he is entitled to compensation for pain and suffering, and when he dies this right passes to the estate (see, for example, CA 384/74 Estate of David Azoulay v. Vulcan Casting Enterprises Ltd [24], where the injured person was severely burnt in a work accident and suffered extreme pain for four days before he died, and the court awarded his estate compensation for pain and suffering and a reduction of his life expectancy; see also CA 2376/93 Estate of Michal Kedar v. HaSneh Insurance Co. [25]; and cf. s. 4 of the Compensation Law and r. 4 of the Road Accident Victims Compensation (Calculation of Compensation for Non-Pecuniary Loss) Regulations, 5736-1976). It follows therefore that the estate does not obtain a ‘windfall.’ This was discussed by Waddams in The Law of Torts, supra:

‘… it can be said that this kind of windfall is an inevitable consequence of the survival of actions legislation. Once the old rule is abandoned and it is accepted that a personal action survives, it inevitably follows that a deceased’s estate will receive what some might describe as a windfall. Indeed the real cause of the enrichment is not even the legislation but the very concept of inheritance of wealth’ (at § 6.860).

25. Therefore our conclusion is that the assumption that the injured person will not be alive in order to enjoy the compensation money for the ‘lost years’ cannot undermine the actual right to compensation. The compensation reflects the loss of the injured person’s capacity to earn money and to do with his income what he wishes, and the tragic fact of the injured person’s untimely death does not negate this loss.

It is appropriate to end this part of the judgment by citing the remarks of Lord Wilberforce, who expressed the other approach, according to which the lack of capacity to enjoy the lost profits denies the right to compensation, in language that puts into clearer perspective the difficulty of that approach:

‘Nothing is of value except to a man who is there to spend or save it. The plaintiff will not be there when these earnings hypothetically accrue: so they have no value to him’ (Pickett v. British Rail Engineering (1980) [135].

The determination is forceful, but problematic.

The dependants’ perspective

26. Another question of great importance, which we have already hinted at above, concerns the dependants of the injured person whose life expectancy has been shortened. Indeed, hitherto we have considered the question of compensating an injured person who is living for loss of his earning capacity in the ‘lost years’ mainly in the light of the remedial purpose of the law of torts. The considerations that we discussed derive from a desire to improve the injured person’s position and to remove the damage — in so far as this is possible by means of pecuniary relief. These considerations seek to return the injured person to his original position. They are based on an outlook that recognizes the right to compensation for that loss, despite the particular dimension of objectivity inherent in this damage, i.e., the compensation is given to the injured person for the damage of losing the capacity to derive income in the ‘lost years’ even if he himself is not expected to live during those years and to enjoy the compensation. But these considerations — the ‘technical’ considerations in the words of Justice Barak in his opinion in Estate of Sharon Gavriel v. Gavriel [1] — do not stand alone. Alongside them are additional considerations — which are social in essence (policy considerations). These found expression in Estate of Sharon Gavriel v. Gavriel (1), both in the minority opinion and in the majority opinion, and they have guided case law in other countries. We are concerned here with the need to provide a proper solution for the dependants of the deceased injured person, who find themselves, in certain cases, helpless — without support and without compensation.

27. Before we enter into this question in detail, we should first outline, in brief, the statutory framework with regard to the effect of the death of an injured person on liability in torts. When a person who was injured by a tort dies, a right of claim may accrue both to the estate and to his dependants. With regard to the estate, the Torts Ordinance tells us that when a person dies, all the causes of action arising from torts that were available to the deceased continue to be available to his estate (s. 19(a) of the Ordinance). In other words, the rights that a deceased injured person had to sue the tortfeasor, both for pecuniary loss and for non-pecuniary loss, survive if they have not been exhausted, and pass to his heirs (see CA 148/53 Penetz and Egged Operative Group Ltd v. Feldman [26], at pp. 1716-1717). It should be noted that in England a different approach was originally accepted, according to which personal claims for a tort did not survive the death of the injured person or of the tortfeasor, even if the death of the injured person was caused by the tortious act (actio personalis moritur cum persona). This approach sustained criticism from every direction, until in 1934 the law was changed by the enactment of the Law Reform (Miscellaneous Provisions) Act 1934, which provided for the ‘inheritance’ of rights and debts as aforesaid by the estate (a similar development began in Canada in the province of Ontario in 1886, within the framework of The Revised Statute respecting Trustees and Executors and the Administration of Estates).

Section 19 of the Ordinance further provides that where the act or omission that created the cause of action is also what led to the death of the injured person, ‘the compensation that can be recovered by the estate shall be calculated without taking into account the loss or profit caused to the estate as a result of the death…’ (s. 19(b)). The logic underlying this provision is that the claim is not that of the heirs, but of the deceased. An exception to this is funeral expenses, which may be paid (end of s. 19(b)). It is further provided in s. 19 of the Ordinance that the rights granted to the estate are not intended to add to the rights granted to the dependants of the deceased nor to derogate from them (s. 19(d)).

28. The dependants of the injured person have an additional — independent — claim, where the tortious act led to the death of the injured person (see ss. 78-81 of the Ordinance, which provide an arrangement similar to the English law, the Fatal Accident Act, 1846, and subsequently the Fatal Accident Act, 1976). The dependants, who are the spouse, parents and children of the deceased, are entitled to compensation for the pecuniary loss that they suffered as a result of his death (ss. 79 and 80 of the Ordinance; CA 482/89 Estate of Sarah Abir v. Ferber [27], at p. 109; CA 506/82 Sontag v. Estate of David Mendelsohn [28]). The tortfeasor must compensate the dependants of the deceased for the loss of the economic support to which they had an expectation, had the deceased remained alive (CA 64/89 Gabbai v. Lausanne [29]). It should be noted that not all damage caused to the dependants is compensatable, but only the pecuniary damage involved in the loss of pecuniary support deriving from their family dependence on the deceased (CA 206/87 General Federation Medical Fund v. Estate of Dr Meir Edison [30], at pp. 79-80; FH 24/81 Honovitz v. Cohen [31], at p. 420). The amount of this damage is usually determined by means of the parts method, which expresses an accepted factual presumption (CA 32/60 Felixberg v. General Manager of the Railway [32]). The court discussed the principles that apply with regard to a claim of dependants in Ararat Insurance Co. Ltd v. Ben-Shevach [15]:

‘In a claim made by dependants, the loss of support that will be awarded to them is also derived from the earning capacity of the injured person (the deceased). They are entitled to the loss caused to them as a result of the death of the deceased, who supported them, namely their share in the family “pie” from which they would have benefited, if the deceased had not died. In order to determine this loss, we must determine what would have been the earning capacity of the deceased if he had not died as a result of the accident. Just as in the case where the plaintiff is harmed as a result of being injured in an accident he should be awarded the pecuniary damage caused to him as a result of the accident, including the loss of earning capacity (s. 76 of the Torts Ordinance [New Version]), so too the dependants are also entitled to the “pecuniary loss that they actually suffered or will actually suffer in the future,” as stated in s. 80 of the Ordinance’ (ibid., at p. 494).

29. Section 78 of the Ordinance provides a qualification that the right of the dependants to compensation arises only where the tort caused the death of the person upon whom they were dependent, and that person was entitled, at that time, to compensation. This means that although the right of the dependants to receive compensation from the tortfeasor is an independent right, distinct from the right of the deceased, it is still conditional upon the fact that, had he not died, the deceased would have himself had the right, within the framework of a claim against the tortfeasor, to compensation for his damage (Gabbai v. Lausanne [29]). Only when the injured person died before realizing his right to receive compensation for his damage is the way paved for the dependants to make a claim (the law in England and many other countries is similar; see, for example, Pickett v. British Rail Engineering [135]).

This is the root of the problem, as described by Justice Barak, in Estate of Sharon Gavriel v. Gavriel [1]:

‘The accepted approach is that the right of the dependants is conditional upon the fact that upon the death of the injured person (“at that time”) he is entitled to compensation for the tort that was done to him. Therefore, if the injured person realized his right during his lifetime, whether by means of a judgment or by means of a waiver or in another way, he no longer has at the time of his death any right to compensation, and consequently the right of the dependants does not come into being… it follows that if the injured person who is living does not receive compensation, within the framework of his own claim, for loss of earnings in the “lost years,” this will seriously harm his dependants. Indeed, according to this approach, the sole hope of the dependants is — and how macabre this hope is — that the living injured person does not file a claim during his lifetime, or if he files a claim, that he will “succeed” in dying before his claim is tried’ (ibid., at p. 553).

Indeed, if compensation for the ‘lost years’ is not awarded, the result obtained from the provisions of s. 78 of the Ordinance, in cases where the deceased does not have, when he died, a claim for compensation, is, from the viewpoint of the dependants, harsh and unjust. Take the case of a person who had a working life expectancy of twenty years, and because of a tortious act his life expectancy is reduced to only two years. The vast majority of the potential earning years, which will not be realized because of the act of the tortfeasor, will not be given any expression in the award of compensation, and the dependants, even if they inherit what he was awarded in his claim, will be left with an empty shell, unless the injured person chose — and to put such a choice before him is inconsistent with criteria of justice and logic — not to file a claim for his damage.

We should remember that the injured person frequently needs the compensation money as early as possible, in order to alleviate his pain and to provide for his needs and those of his family that arise from the damage of the accident. The choice of the injured person to file a claim for his damage should not harm, from a global perspective, his interests and those of his dependants.

30. It appears that the main logic underlying the denial of the possibility of compensation to the dependants, in cases where the injured person realized his right to compensation, is the fear of double compensation. But this fear arises only where the injured person himself has been compensated for loss of earnings in the ‘lost years,’ since this is the ‘area of conflict’ between the rights of the dependants and the rights of the injured person. If this is so, the source and logic of s. 78 of the Ordinance lie in a legal reality where compensation is awarded to the living injured person according to the full working life expectancy that he had before the accident. This is exactly what Fleming discusses:

‘With few exceptions… this conflict has generally been resolved by subjecting the interests of the [dependants] to the risk of extinction by a prior recovery of the deceased, in the assumed prospect of double liability. This fear would be warranted, however, only if the award to the decedent included compensation for his loss of earnings during the period by which his life has been curtailed, for this segment alone corresponds with the expectancy of support to which his dependants may lay claim in a wrongful death action’ (Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ supra, at pp. 598-599).

See also In re Joint Eastern & Southern District Asbestos Litigation, at p. 429.

31. The conclusion is that the provisions of s. 78 of the Ordinance in our law of torts are inconsistent unless compensation is awarded to the living injured person for the ‘lost years.’ Here it should be emphasized, parenthetically, that this is not the only place where one can find, in the Israeli law of torts, ‘footprints’ of an award of compensation for the ‘lost years.’ Below we will discuss additional footprints when we consider Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7]. I would now like to address an additional provision in the arrangement for periodic payments prescribed in the Compensation Law with regard to claims being considered within the framework of that law. Section 6 of the Compensation Law authorizes the Minister of Justice to enact in regulations the ‘power of the court to decide that the compensation for loss of earning capacity and continuing expenses, in whole or in part, shall be paid in periodic payments…’ and also ‘the right of dependants of an injured person who died after he was awarded periodic payments.’ Indeed, the power of the court to award periodic payments for the heads of loss of earning power and continuing expenses was regulated in the Road Accident Victims Compensation (Periodic Payments) Regulations, 5738-1978. Regulation 3 provides:

‘Right of dependants

3. (a) If an injured person dies after he has been awarded periodic payments, dependants who were completely or partially supported by him before his death shall be paid a pension in the following percentages of the amount awarded, provided that the total of all the pensions does not exceed the amount awarded:

     …’

Thus we see that where someone is injured in a road accident and his life expectancy is shortened, the court may award him compensation by way of a periodic payment, and in such a case the aforesaid r. 3 ensures that after the death of the injured person pensions are also paid to his dependants. This duty to pay the dependants of an injured person who died is not subject to discretion, and it arises whether the injured person died as a result of the accident or not. The sole requirement stipulated in the regulation is that the injured person passed away after he was awarded periodic payments. This regulation, in the context, constitutes a partial solution to the problem of the ‘lost years,’ and it can be said that ‘we can see from it a legislative trend that dependants of a living injured person will be entitled to compensation upon his death, notwithstanding the fact that before he died the injured person won damages of his own’ (Justice Barak in Estate of Sharon Gavriel v. Gavriel [1], at p. 556). Indeed, there are some who believe that the best way to ensure, on the one hand, the freedom of the injured person to do with his money as he sees fit, and, on the other hand, the support of the dependants, is to determine some mechanism of periodic payments, whereby starting from the date of the injured person’s death, the payments will be transferred to the dependants (see, for example, P. Cane & D. Harris, ‘Legislation,’ 46 The Modern L. Rev. 478 (1983), at p. 481).

It should be noted that the interest of dependants of an injured person in a road accident, who died before he realized his cause of action, is not subject to the provisions of s. 6 of the Compensation Law, and it is regulated within the framework of s. 78 of the Ordinance (with regard to the power to award periodic payments for dependants of the deceased who has not been awarded a pension, see CA 778/83 Estate of Sarah Saidi v. Poor [33]; for a general discussion, see also D. Moore, ‘Periodic Payments to Victims of Road Accidents,’ 6 Tel-Aviv University Law Review (Iyyunei Mishpat) 645 (1978)).

32. Let us return, then, to the provisions of s. 78 of the Ordinance. The anomaly that is created as a result of the provisions of this section, as described above, is not only the law in Israel, but it underlies the uncertainty of the courts in England on the question of compensation for the ‘lost years.’ In the past, the courts there adopted an approach whereby the amount of compensation was determined in accordance with the lifespan that the injured person anticipated before he was injured in the accident (see Phillips v. London & South Western Railway Co. [138]; Roach v. Yates [139]). Several judgments that dealt with this in the middle of the twentieth century presented different approaches to the subject (see Pope v. D. Murphy & Son Ltd [133], according to which compensation should be awarded for loss of earning capacity according to the life expectancy before the accident, and, by contrast, Harris v. Brights Asphalt Contractors Ltd [1953] 1 Q.B. 617, in which the view expressed was that compensation should not be awarded for the ‘lost years’). In 1962 the approach that denies entitlement to compensation for the ‘lost years’ became established; it found expression in the judgment of the House of Lords in Oliver v. Ashman [134]. In the words of Lord Justice Wilmer:

‘For what has been lost by the person assumed to be dead is the opportunity to enjoy what he would have earned, whether by spending it or saving it. Earnings themselves strike me as being of no significance without reference to the way in which they are used. To inquire what would have been the value to a person in the position of this plaintiff of any earnings which he might have made after the date when ex hypothesi he will be dead strikes me as a hopeless task’ (at p. 240).

The ruling in Oliver v. Ashman [134] was adopted also in other cases (see Wise v. Kaye [141]), but it was strongly criticized, especially in view of its serious consequences from the viewpoint of dependants, whose right to claim for loss of support arose only where at the time of the injured person’s death he had a right of claim against the tortfeasor (see D. Howarth, Textbook on Tort (Butterworths, 1995), at p. 613). The difficult result arising from the ruling in Oliver v. Ashman [134] is that the injured person, who is living and who files an action in torts, is unable to recover for the loss of future earnings, even though if he had not fallen victim to the tortious act, he would, it may be assumed, have earned a sum of money which he would have used for various purposes, including the support of his family. At the same time, the filing of the claim by the living injured person raises an insuperable barrier preventing the family members from suing, independently, for the damage they have suffered, i.e., the loss of support. In this sense, a dead injured person is better than a live one. This result brings with it severe consequences from a social viewpoint. A tangible example of this was seen in McCann v. Sheppard [142], where a young man aged 24 was injured in a road accident, and he filed a claim for compensation in consequence. While the action was pending, the injured person married and fathered a child. In the judgment, he was awarded compensation in an amount of £15,000 for loss of earnings in the future. The defendant filed an appeal on the amount of the compensation, but then the injured person died as a result of taking an overdose of painkillers. In view of the fact that the injured person had died, the court of appeal ordered the compensation to be reduced, on the head of loss of earnings, to a sum of only £400. Thus the widow and the son were left without support.

The criticism of the ruling in Oliver v. Ashman [134] did not escape the attention of the Law Commission, which convened in order to suggest possible ways of correcting the state of affairs. In brief, the Commission recommended the following three possible solutions: (1) changing the ruling in Oliver v. Ashman [134] by means of legislation and awarding compensation for the ‘lost years,’ while deducting the expenses that the injured person would have incurred for his subsistence during those years; (2) recognizing the right of the dependants to compensation-support even if the injured person received compensation during his lifetime; (3) filing the claim of the dependants and the claim of the injured person simultaneously, and payment of a certain sum into court, which will be paid to the dependants after the death of the injured person. The Commission recommended the first solution, saying that notwithstanding the existence of a possibility that the injured person would make use of all the compensation monies and would not leave anything for the dependants, it should not be assumed that many injured parties will indeed do this, and in any event, so the Commission thought, the balance of advantages and disadvantages tips the scales in favour of this solution, which can be implemented most simply and is the closest in principle to the manner in which tortious compensation is awarded — i.e., paying it to the injured person himself (for an analysis of the considerations for and against each of the solutions, see Report on Personal Injury Litigation — Assessment of Damages, Law Com. 56, at pp. 17-24; see also the remarks of Justice Barak in Estate of Sharon Gavriel v. Gavriel [1], at p. 553, and the remarks of President Kahan, ibid., at p. 571).

Albeit, the Commission’s recommendation did not find expression in legislation, but in 1980 the first solution was adopted by the House of Lords, in Pickett v. British Rail Engineering [135]. That case concerned a person who contracted cancer as a result of exposure to asbestos, and his life expectancy was shortened to approximately one year only. He died after the judgment of the trial court was given in a claim that he filed, but before the appeal was heard. His widow continued the proceeding, which reached the House of Lords. The House of Lords overturned Oliver v. Ashman [134] and recognized the head of loss of earnings in the ‘lost years.’ This was both for the legal reason that the plaintiff, whose life expectancy was shortened, suffered immediate damage of loss of earning capacity, and for the social reason that the dependants should not be left without compensation. From then until now, the ruling in this matter has not changed, and the courts in England award the living injured person compensation for the years in which he could have worked and earned money had his life expectancy not been shortened by a tort (it should be noted that the Supreme Court of Canada had already ruled in 1978 that it was not prepared to adopt the rule in Oliver v. Ashman [134] (see Andrews v. Grand & Toy Alberta Ltd. [112]; the same was held by the High Court of Australia, in 1966: see Skelton v. Collins [106]).

33. In the United States the difficulty inherent in the two sides of the question has also been recognized. On the one hand, a legal system which does not recognize a head of the ‘lost years’ and which denies the right of the dependants to file a claim for their damage leads to a result in which the tortfeasor benefits from the fact that he shortened the life expectancy of the injured person. On the other hand, a legal system in which compensation is awarded for the lost years of earnings and the personal claim of the injured person does not create a barrier to a claim by the dependants means that the tortfeasor will be liable for a double payment. So what is the solution? Most of the States have accepted the approach that in the personal claim of the injured person for loss of earning capacity, the working life expectancy that he had prior to the accident is taken into account (see, for example, In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 429; Morrison v. State [86], at p. 406; Borcherding v. Eklund [87] at p. 650; Crecelius v. Gamble-Skogmo, Inc. [88]; Burke v. United States [89]; Fein v. Permanente Medical Group [90]; Doe v. United States [80]). The United States Supreme Court discussed the rule prevailing in this matter in the United States in the following manner:

‘Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery “on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury”.’ (Sea-Land Services, Inc. v. Gaudet [91] at p. 594).

In order to prevent double compensation, in those countries they do not allow a claim for wrongful death in cases where the injured person has realized his personal claim, or the claim for wrongful death is set off against the amount paid in the personal claim (see In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 430; Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ supra, at p. 614).

However, in several judgments the courts in the United States held that in a personal claim of the injured person, the amount of the compensation for loss of earning capacity should be determined according to the life expectancy that he has after the accident (see Ehlinger v. State [92] at p. 792; Hughes v. Chicago, R.I. & P. Ry. Co., 129 N.W. 956 (1911)). But this position does not stand alone, because in those places where this was held, it appears that they have adopted the opinion that the personal claim of the injured person cannot prevent the possibility of filing an action for wrongful death after the death of the injured person (see In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 430; Doe v. United States [80]).

It follows from all of the above that even in the United States, both according to the majority opinion and according to the minority opinion, the dependants are not left, as a rule, without support. The harm to the injured person’s income in the ‘lost years’ finds expression in the award of compensation, whether this is done in the personal claim of the living injured person, or whether it is done in a claim within the framework of the wrongful death laws.

34. In Estate of Sharon Gavriel v. Gavriel [1], President Y. Kahan, who wrote the leading majority opinion, was aware of the difficulty that we have discussed, from the viewpoint of the dependants, and he pointed out that ‘such a situation can cause injustice.’ Similar remarks were made by the other majority judges, Justice Bejski (ibid., at pp. 578-579) and Vice-President Shamgar (ibid., at pp. 576-577). But this problem, so the majority opinion judges thought, should be remedied by way of a change in legislation, and not by awarding compensation for the ‘lost years,’ since the latter involved miscarriages of justice of its own.

But the legislator tarries. Although more than twenty years have passed since the judgment was given in Estate of Sharon Gavriel v. Gavriel [1], the injustice remains as it was. It should be noted that there are, admittedly, legal systems in which the awarding of compensation to the living injured person, for loss of his earning capacity in the ‘lost years,’ is done pursuant to an express statutory provision. This is the case, for example, in Scotland. The Damages (Scotland) Act provides, in s. 9, that in assessing the damages of the living injured person it should be assumed that his life expectancy is at it was before the damage occurred. But such an express statutory provision is not essential. In many countries, it is case law that has recognized the damage arising from the loss of earning capacity in the ‘lost years’ as compensatable damage. This, as we have seen, is how the law has developed in England (see Pickett v. British Rail Engineering Ltd [135]; M.A. Jones, Torts (eighth edition, 2002) at pp. 682-683). This is also the case in most States in the United States (see Sea-Land Services, Inc. v. Gaudet [91], at p. 594, and the discussion supra), and in Canada, where the courts have recognized the entitlement of the living injured person to compensation for the ‘lost years’ (see Andrews v. Grand & Toy Alberta Ltd. [112]; The Queen in right of Ontario v. Jennings [113]; Sigouin (Guardian in litem of) v. Wong [114]; Dube v. Penlon Ltd. [115]). The courts in Australia have followed a similar path (see Skelton v. Collins [106]; F. Trindade & P. Cane, The Law of Torts in Australia (third edition, 2001) at p. 519), and so has case law in New Zealand (see S. Todd et al., The Law of Torts in New Zealand (1991) at p. 881) and in Ireland (see Doherty v. Bowaters Irish Wool Board Ltd [160]; Conley v. Strain [161]).

In other countries, case law has pursued a different path. Thus, for example, in South Africa, the right to compensation for the head of damage for the ‘lost years’ has been recognized (see Goldie v. City Council of Johannesburg [164]), but it was held afterwards that for the purpose of compensation for the loss of earning capacity, the life expectancy remaining to the injured person after the accident was what should be examined (see Lockhat's Estate v. North British and Mercantile Insurance Co. Ltd [165]).

35. It can be seen that, even though there is no unanimity on the issue of the ‘lost years,’ it is possible to say that in many countries case law has recognized the entitlement of the living injured person to compensation for the ‘lost years of earning.’ A change in legislation is therefore not essential. The award of compensation for the loss of earning capacity in the ‘lost years’ will find a strong basis in the principles of compensation that have been accepted in Israel, as in other legal systems, for many years. The need to realize the goal of returning the injured person to his original position and the need to solve the difficulties arising from the current legal position justify a change in the prevailing case law on this issue. As for the injustices and difficulties involved, allegedly, in awarding compensation for the loss of earning capacity in the ‘lost years,’ these, as we have already said and as we shall explain below, can be solved.

Deduction of expenses

36. One of the objections raised against awarding compensation for the loss of earning capacity in the ‘lost years’ is that, alongside the income that the plaintiff was deprived of in those years, he has ‘saved’ himself the expenses that he would have incurred in those years. It is indeed true — so it is claimed — that the plaintiff would have had earnings as a result of his work in those years, but at the same time he would also have had expenses. Both the former and the latter have been lost as a result of the tortious act (for a discussion of this claim, see, inter alia, Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ supra, at p. 603; In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 428).

This objection relates to the internal balance by which the compensation is assessed. This balance considers the loss and the gain resulting from the accident. Indeed, compensating the injured person in an amount that reflects his entire earnings in the ‘lost years’ means overcompensation, since it ignores the fact that in order to produce this income, the deceased would have needed to use various amounts for his subsistence. These amounts will no longer be incurred after the death, unlike, for example, in a case where the accident causes disability and not death, when the injured person must incur expenses to continue to live during the period of his disability (see R.A. Posner, Economic Analysis of Law (third edition, 1986), at p. 182). This was discussed by the Supreme Court of Canada:

‘There can be no capacity to earn without a life. The maintenance of that life requires expenditure for personal living expenses. Hence the earnings which the award represents are conditional on personal living expenses having been incurred. It follows that such expenses may appropriately be deducted from the award. Against this, it is argued that if [the plaintiff] had been born a millionaire, her personal living expenses during the “lost years” would have been met from other sources. But this does not negate the fact that in order to earn income one must live and incur the attendant expenses’ (Toneguzzo-Norvell v. Burnaby Hospital [116]).

37. We cannot, therefore, ignore the question of the living expenses. But this factor cannot affect the fundamental question of the entitlement to compensation, and its only effect is with regard to the quantum. In other words, the solution to the aforesaid difficulty lies in the realm of calculation; the court, when determining the quantum of damages, must deduct from the total income that the injured person would have accrued if he had worked in the ‘lost years’ those expenses that he would have incurred for his subsistence. This is the internal balance. It does not affect the actual entitlement to compensation but only the method of calculating it. This calculation is merely a normal consequence of our well-established rules, such as, for example, with regard to the claim of the dependants. The rule is that in calculating the loss of the dependants as a result of the death of the deceased, one must also take into account the pecuniary benefit that they received, if any, as a result of his death. This is the ‘deduction rule,’ which holds that the material benefits arising from the deceased’s death must be set off against the damage that the dependants suffered (Estate of Michal Kedar v. HaSneh Insurance Co. [25]). Albeit, this rule has been subject to criticism. This was expressed by Justice H.H. Cohn, in sarcastic terms:

‘At long last they [the mourners] have achieved a significant saving in that the deceased no longer eats breakfast, lunch or supper, nor does she any longer drink wine or spirits, tea or coffee. What is more, she no longer needs clothes or shoes, cosmetics or jewellery. These are real gains, and who knows whether in the account of the life of a well-groomed and indulgent woman these do not greatly exceed the pecuniary loss caused by her death…’ (Eliyahu Insurance Co. Ltd v. Estate of Violet Tzaig [34], at pp. 139-140).

Justice Tz. Tal, in the minority, returned in Estate of Michal Kedar v. HaSneh Insurance Co. [25] to the criticism of the deduction rule, in so far as it concerns the deduction of the compensation due to the heir of the deceased (in a claim by the estate) from the compensation payable to him as a person dependent on the deceased’s livelihood. The criticism there was directed at the deduction rule itself. In my opinion, it should have been directed against the erroneous manner in which the deduction rule was implemented, namely by exempting, in certain circumstances, the tortfeasor from his liability to pay the total damage and by limiting his liability to the ‘largest’ head of damage.

In any event, notwithstanding the feeling of discomfort arising from the calculation of the pecuniary saving arising from the death of the injured person, the deduction rule, which is founded on s. 80 of the Torts Ordinance and on the principle of returning the injured person to his original position, remains valid (see also CA 5/84 Yehezkel v. Eliyahu Insurance Co. Ltd [35]; CA 471/93 Estate of David Hyams v. Hyams [36]; CA 1503/94 Israeli Phoenix Insurance Co. Ltd v. Estate of Baruch Berman [37]). The provisions of the law that set out the limits of the deduction — such as s. 81(1) of the Ordinance, which provides that amounts that the dependants received or are entitled to receive upon the death of the deceased under an insurance contract shall not be deducted — have been interpreted narrowly on several occasions by case law (see CA 154/70 Bida v. Rubin [38]; CA 682/69 Hamudot v. Shapira [39]). It need not be said that the ‘saving’ and the ‘benefit’ discussed within the context of the deduction rule are entirely in the financial sphere, since in the emotional sphere the death of the injured person only causes his relations suffering.

Following this approach, case law has held, inter alia, that from the compensation given to the dependants we should deduct the amount of non-pecuniary compensation that they received by virtue of their being the heirs of the deceased, and that this deduction is not contrary to the provisions of s. 19(d) of the Torts Ordinance (CA 206/87 General Federation Medical Fund v. Estate of Dr Meir Edison [30]). It is from this approach also that we derive the position that the needs of the deceased — needs that were ‘saved’ when he died — should be deducted from the family funds. As Justice Barak said, within the framework of the ‘balance of profit and loss’ caused to the injured person on the death of the person who supported him: ‘We should take into account, on the one hand, the damage caused to the dependants as a result of the loss of the efforts of the mother and spouse… and on the other hand, the lack of expenses that were incurred in the past for his subsistence and needs. This lack is a saving caused to the dependants as a direct result of the death, and it should be taken into account…’ (Eliyahu Insurance Co. Ltd v. Estate of Violet Tzaig [34]). Therefore the court, when awarding the dependants compensation for the loss of support, is obliged to assess, in the first stage, the amount of income that the deceased would have set aside for the purpose of supporting those dependent on him, while taking into account, in so far as is necessary, special expenses that he would have incurred out of his income; and in the second stage, the court must calculate — by means of the parts method — the size of the deceased’s share in the family income (see Katzir, Compensation for Personal Injury, supra, at p. 782).

38. It follows that the idea whereby in calculating the loss of income after the death of the injured person one should deduct the financial saving accruing as a result of his passing away is not a new one in Israel, and it should be applied also with regard to the award of compensation for the loss of earning capacity in the ‘lost years.’ This is indeed what case law has held in the various legal systems. In England, the House of Lords held, in Pickett v. British Rail Engineering [135] that the loss of earning capacity in the ‘lost years’ is, albeit, damage that may be claimed by the living injured person, but the court must deduct from the compensation the sum that reflects the estimated expenses that the plaintiff would have incurred for his subsistence, had he lived during the ‘lost years’ (see also Harris v. Empress Motors Ltd [143]). Usually the English courts deduct 50%, unless special circumstances justifying a different calculation are proved, such as that the plaintiff could have saved a significant amount (see, for example, Phipps v. Brooks Dry Cleaning Services Ltd [144]).

Moreover, the English courts have often held that in cases where the plaintiff does not have dependants, and there is no expectation that he will have any of these — for example, because of his young age at the time of the accident — the amount of the compensation for the lost years may amount to zero. Giving compensation in such cases, so it has been said, would be too speculative (see opinions for and against this view, in Croke v. Wiseman [137]; Connolly v. Camden & Islington Area Health Authority [145]; Adsett v. West [146]; Gammell v. Wilson [147]. We will return to this issue.

39. In Ireland, too, the right of the living injured person to compensation for the ‘lost years’ has been recognized, and the court takes into account in the compensation the amount of the anticipated expenses of the injured person for his subsistence (see Doherty v. Bowaters Irish Wool Board Ltd [160]). There is similar case law in Australia (Skelton v. Collins [106]), Canada (Semenoff v. Kokan [117]; Toneguzzo-Norvell v. Burnaby Hospital [116]) and other countries.

A different note, that there is no basis for deducting from the income the amount that reflects the expenses saved in the lost years, has been heard at times in American case law (see Olivier v. Houghton County St. Ry. [94]; In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 531). The reasoning behind this approach is that it is no concern of the defendant how the plaintiff uses his income. But this reasoning does not stand up to closer inspection, since the purpose of the compensation is to reflect the damage of the injured person — no more and no less — and it is clear that in the context we are discussing, the real economic damage that is caused to the injured person reflects a difference between his expected income in the ‘lost years’ and the expenses that he would need for his subsistence in those years (see Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ supra, at p. 603).

40. In Israel, in Estate of Sharon Estate v. Gavriel [1] Justice Barak adopted the approach, which as aforesaid is accepted in most of the countries that have considered the question of the ‘lost years,’ that in assessing the damage of the plaintiff on this head, we should take into account the fact that in these years he will ‘save’ the expenses that he would have incurred had he been alive. The compensation for this head of damage should be calculated, so he proposed, as the difference between the income that he lost and the expenses that he saved. However, Justice Barak emphasized that this cannot deny the right of the injured person to the actual receipt of the compensation (Estate of Sharon Estate v. Gavriel [1], at p. 551). I too am of the opinion that, according to our accepted principles, there is no alternative to including, in the calculation of the compensation, the expenses that the injured part would have incurred had he remained alive during the ‘lost years.’ This principle leads us to the following question: what is the method that we should adopt in calculating the expenses that should be deducted for the purpose of determining the amount of compensation for the loss of earning capacity in the ‘lost years’?

Methods of calculating the expenses

Possible methods

41. In England, Canada and other countries where it is customary to award compensation for the ‘lost years,’ various methods have been adopted for the calculation of the expenses that should be deducted for the purpose of determining the amount of the compensation (see C.L. Brown, ‘Duncan v. Baddeley: Reconciling the “Lost Years” Deduction with Fatal Accident Cases,’ 35 Alberta L. Rev. 1108 (1997); Duncan (Estate of) v. Baddeley [118]; Harris v. Empress Motors Ltd [143]; C. Bruce, ‘The “Lost Years” Deduction,’ The Expert Witness Newsletter, Economica Ltd. (Spring 1997, vol. 2, no. 1)). The deduction percentage varies widely between approximately 30% or even less (see, for example, Brown v. University of Alberta Hospital [119]) and approximately 70% (see, for example, Granger v. Ottawa General Hospital [120]).

42. One method of calculation that was suggested (and rejected) in Canada is the ‘Basic Needs Approach.’ This approach is based on a criterion of basic needs, which is unconnected with the income level of the injured person. According to this approach, wherever compensation is awarded for the ‘lost years,’ an amount shall be deducted from the compensation to reflect the expenses that a person incurs for his basic needs, by taking into account details such as the question of whether he was married or not, the size of the family, etc.. This approach was criticized, inter alia, on the grounds that it does not provide a true assessment of the expenses that a particular person, with a particular level of income, would incur (see Brown, ‘Duncan v. Baddeley: Reconciling the “Lost Years” Deduction with Fatal Accident Cases,’ supra; Duncan (Estate of) v. Baddeley [118]).

43. Another approach for calculating the expenses that should be deducted in order to assess the compensation for the ‘lost years’ is the ‘Standard of Living Approach.’ This approach, apparently, is the most accepted in England and Canada. According to this approach, the potential standard of living of the injured person should be taken into account, with regard to his earning capacity. This approach was reflected in the case law of the House of Lords in Gammell v. Wilson [147]:

‘The loss to the estate is what the deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve.’

Similar remarks were expressed by the Court of Appeal in England, in Harris v. Empress Motors Ltd [143], while delineating the principles underlying the Standard of Living Approach:

‘(1) The ingredients that go to make up “living expenses” are the same whether the victim be young or old, single or married, with or without dependants. (2) The sum to be deducted as living expenses is the proportion of the victim’s net earnings that he spends to maintain himself at the standard of life appropriate to his case. (3) Any sums expended to maintain or benefit others do not form part of the victim’s living expenses and are not to be deducted from the net earnings’ (at p. 228).

See also White v. London Transport Executive [148], in which the court said that:

‘In the cost of maintaining himself I include the cost of his housing, heating, food, clothing, necessary travelling and insurances and things of that kind…’ (at p. 499).

In Semenoff v. Kokan [117] the court in the Canadian province of British Columbia adopted the calculation method used in Harris v. Empress Motors Ltd [143]. So did the court of appeal in the province of Alberta, in the decisions in Duncan (Estate of) v. Baddeley [121] in 1997 and Duncan (Estate of) v. Baddeley [118] in 2000). See also the judgment of the Supreme Court of Canada in Toneguzzo-Norvell v. Burnaby Hospital [116].

44. A third possible approach to the calculation of the subsistence expenses of the injured person is the ‘Savings Approach.’ This approach assumes that the amount of income that a person has left, after he lays out the expenses needed to preserve his lifestyle, is the amount that would have been saved by him (see Brown, ‘Duncan v. Baddeley: Reconciling the “Lost Years” Deduction with Fatal Accident Cases,’ supra; Granger v. Ottawa General Hospital [120]; Marchand v. Public General Hospital of Chatham [122]; see also Australian case law in Sharman v. Evans [107] at pp. 579-583; see also Sullivan v. West Yorkshire Passenger Transport Executive [149]). This approach has received criticism, on the grounds that it is not consistent with the purpose that underlies the award of compensation for the ‘lost years,’ namely giving the plaintiff the possibility of ensuring the future of the dependants (Trindade & Cane, The Law of Torts in Australia, supra, at p. 519); it has also been claimed that this approach takes into account irrelevant factors (how the injured person would have chosen to use his money), and it does not examine the question of the deduction of expenses from the correct viewpoint — that of the injured person — but from the viewpoint of the heirs, namely what they can expect to receive in the inheritance (see Duncan (Estate of) v. Baddeley [118]).

The proposed approach

45. What is the method of calculating the expenses that should be adopted in our legal system? The Basic Needs Approach and the Savings Approach were rejected, as aforesaid, by most courts and scholars, and with good reason. These approaches suffer, as we have set out above, from significant defects. The ‘Standard of Living Approach’ is, from an objective point of view, a more suitable approach, but it too suffers from a major defect, which lies in its great vagueness. It would seem, therefore, that at least in those cases where it is possible to know or to estimate the family position of the injured person in the ‘lost years,’ we ought to adopt the method of calculation that is well established in our legal system, namely the ‘parts’ method, in the absence of particular circumstances that justify following another path. It is possible to ‘know’ when the family position of the injured person has already been established on the date of the judgment; it is possible to ‘estimate’ where it has not yet been established but can be forecast. The ‘parts’ method applies, where there is no evidence to the contrary, a working assumption — a factual presumption based on experience of life and the life style of the average family. The significance of applying this approach is that after assessing the potential income of the injured person, we should add it to the family income (‘the joint kitty’) and then, out of the total income, allocate one part as a general fixed expense of the family, and divide the remainder equally between the family members, in such a way that one part is attributed to each person. The part of the person injured by the tortious act should be deducted from his income, and thereby the amount of the compensation is reached (see Felixberg v. General Manager of the Railway [32], at p. 1638).

46. This approach has several advantages: first, it achieves the purpose of the deduction. When the parts method is used in calculating the damage of the dependants, it produces a figure for the amount that the deceased injured person would have spent on his own subsistence. This amount reflects the ‘saving’ — in material terms — that is a consequence of the death of the injured person (Eliyahu Insurance Co. Ltd v. Estate of Violet Tzaig [34]; CA 501/84 Migdal Insurance Co. Ltd v. Miron [40]). We are concerned with this amount — the amount of the material ‘saving’ arising from the death of the deceased — also when we are dealing with the issue of the ‘lost years.’ This is therefore a good reason for using the ‘parts’ method even for calculating the compensation in our case. Second, the ‘parts’ method is a convenient, effective and equal approach:

‘Certainly the “parts” method also is not exact and does not distinguish between the expenses incurred for the subsistence of the various family members that are only equal in theory; it also cannot be said that the additional “part” is equal in amount in all families and in all situations; the main advantage of the method is that it makes the method of calculation simple and leaves the court and the litigants a calculating tool that makes it easier for them to determine the pecuniary loss caused to the dependants; and this should not be considered of small importance, for a calculation by means of a formula makes the court’s work easier and helps litigants to reach a compromise in suitable cases; indeed, it was held in Felixberg v. General Manager of the Railway [32] that where there are no special circumstances in the case that require adopting a different approach, it is best for the court to adopt the “parts” method, “so that one plaintiff will not be awarded a large amount and another plaintiff a small amount, merely because of the approaches of different judges” (CA 610/75 Rotem v. Nof [41]).’

When we compare this approach, with its advantages, to others, and take into account the fact that the courts in Israel are accustomed to apply it in tort cases, its preferability to the other vague approaches that we reviewed above is clear (see also CA 1299/92 Estate of Aliza Mor v. Rom [42], at p. 702). Third, this approach takes into account both the number of persons in the family and its economic status in view of the total level of income (see Estate of Sarah Abir v. Ferber [27]; Gabbai v. Lausanne [29]; CA 541/88 Protection of Nature Society v. Estate of Ora Forman [43], at p. 142). The factors are of importance in so far as calculating the ‘saving’ resulting from the death of the injured person is concerned. Fourth, following the ‘parts’ approach also in the context of the ‘lost years’ leads to coherence and harmony in the method of calculating compensation in Israeli law, and it takes into account one of the main reasons — maybe the most important reason of all — for awarding compensation for the ‘lost years,’ namely ensuring support for the dependants. Adopting this approach brings the amount of the compensation for the ‘lost years’ closer to the amount that the dependants would have received in an independent claim for loss of support, and thus it reaches a proper result (see Waddams, The Law of Damages, supra, at § 3.920). Fifth, this approach, according to accepted case law, is not the final word, and it applies as a default method where the litigants do not show any circumstances that justify another calculation (Felixberg v. General Manager of the Railway [32], at p. 1637; Rotem v. Nof [41]; CA 204/85 State of Israel v. Mizrahi [44]; CA 587/87 Malca v. Aktin [45]). This is therefore a convenient method of calculating the compensation, and it is possible to depart from it where necessary and to use a different method of calculation that is consistent with the circumstances and the evidence presented in court.

47. Hitherto we have proposed the ‘parts’ method as a means of assessing the amount that should be deducted from the amount of compensation for the ‘lost years.’ Notwithstanding, the use of this method requires two adjustments: first, there is a difference between the award of compensation to dependants, for loss of support, and the award of compensation to a living injured person, for the ‘lost years.’ Whereas in the first case — awarding compensation to dependants — the amount that the injured person would have saved should not be included in the support compensation, since the dependants would not be benefiting from him as dependants, in the second case this amount should be part of the compensation, and there is no justification for deducting it. Indeed, when speaking of compensation for the living injured person for the ‘lost years,’ we should deduct from the amount of compensation the ‘subsistence part’ of the deceased (the amount that would have been needed for his subsistence), but we should leave as part of the compensation both the amount of the support and also the amount of the saving. Therefore, it appears that we ought to adapt the ‘parts’ method so that in the absence of circumstances indicating the contrary, a certain amount that represents the share of the injured person’s part that he would have devoted to savings should be excluded from the deduction. In other words, from the amount of the earnings we should deduct not the whole part, but only some of it, which reflects the subsistence expenses but not the savings. This division could be determined in two ways: one, dividing the injured person’s part into two, with one half reflecting the amount of savings (half as a suitable average amount) and the other, adding an additional ‘conceptual’ part to the accepted number of parts and deducting it. This second method, which increases by one part the number of parts, for the purpose of locating the ‘subsistence part’ that will be deducted from the amount of the compensation, has the advantage that, like the ‘ordinary’ parts method, it constitutes a proportional approach, based on life experience, all of which when there is no evidence to the contrary.

Second, we have already hinted above that the ‘parts’ method is appropriate mainly in those cases where it is possible to know or to estimate what the family status of the injured person would have been, had it not been for the accident, in the ‘lost years.’ This knowledge, or estimate, allows us to make the calculation according to the number of persons in the family. However, when this figure is not obtainable — for example, where it is clear that the plaintiff will not have dependants because of a very short life expectancy or a persistent comatose state — a difficulty is likely to arise in applying this method of calculation. In such a case, we can resort to several other methods: it is possible, for example, to estimate the injured person’s ‘conceptual’ family position in the ‘lost years’ on the basis of statistical figures, and to make the calculation according to the ‘parts’ method described above (see and cf. Semenoff v. Kokan [117], where the court assumed that the injured person, who was a bachelor, could have had two children). Another method is to assume that we are dealing with an injured person without dependants, and to deduct larger expenses from the compensation. In such a case, the amount that will be attributed to personal living expenses, and to savings, will be increased (see Waddams, The Law of Damages, supra, at § 3.930). We will add to this in our discussion concerning compensation for the ‘lost years’ of a child.

Compensation for the ‘lost years’ of a child

48. Although the awarding of compensation for the ‘lost years’ is designed, inter alia, to realize the social goal of protecting dependants, still there is no guarantee that the injured person will make use of the compensation money on their behalf. There is a concern that the injured person will enjoy the compensation money, in full, during the lifespan that remains, or will devote it to other purposes until there remains nothing for the dependants (this concern was regarded by the Law Commission, apparently rightly, as quite remote). Moreover, the right of the injured person to compensation is not denied where he has no dependants at all, or where his current dependants are not those persons who would have been likely to be his dependants when he passes away, had it not been for the damage that he suffered (M.A. Jones, Torts, supra, at p. 682).

A striking example of a situation of this kind can be seen in accidents where the injured person is a young child. When this is the case, the significance of one of the main reasons for awarding damages for the ‘lost years’ — namely the consideration of preventing injustice to the dependants — is reduced. Lord Denning wrote a minority opinion in a certain case that where the life expectancy of an infant is shortened as a result of an accident, awarding compensation for loss of earnings is absurd, since the compensation will go to his parents, or, if these are not alive, to another relation (Croke v. Wiseman [137]). It should be noted that, according to Lord Denning’s approach, compensation should not be awarded for loss of earnings, either in the years of life or in the ‘lost years,’ also for a child who suffers, as a result of the accident, serious brain damage (ibid.). English case law has continued to discuss, in additional cases, the great difficulty that may arise when attempting to determine the nature of the future earning potential of a child, or to estimate the amount that he would have spent on his subsistence had it not been for the accident.

49. Notwithstanding these difficulties, English case law has not denied the actual right to compensation in such cases for the head of damage of the ‘lost years.’ Even in Croke v. Wiseman [137], the majority opinion expressed reservations as to Lord Denning’s fundamental position that in so far as a small child is concerned, there is no basis for compensation for the head of damage of loss of earnings. Notwithstanding, on several occasions the courts in England have held that the amount of compensation for the loss of earnings of a child in the ‘lost years’ may be very modest, or even nil, because of the speculative nature of awarding them. In Gammell v. Wilson [147], the court held as follows:

‘In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a “conventional” award, should ordinarily be made.’

Notwithstanding, in Gammell v. Wilson [147], the court recognized exceptions to this rule, as for example where the career of a young television star is interrupted. In Connolly v. Camden & Islington Area Health Authority [145], it was held that the award of compensation, when dealing with a child, stands or falls by the possibility of proving it:

‘It is difficult enough in the case of a teenager or middle aged person to prove something for the lost years. It is more difficult for a child but I can envisage, with respect, far more examples than the Shirley Temple case or that of a television star. I can envisage the only son of a father who owns a prosperous business. I can envisage the son who is born to a father who is able to leave the estate to the son. I can envisage a number of situations where the court can look at something and find there are lost years to be compensated for… but what I hold and hold clearly is that Pickett and Gammell… give this little boy a head of claim for lost years, but on the material before me I am going to state… not that there is no claim but that there is a claim which I assess at nil.’

See also Adsett v. West [146]; Harris v. Empress Motors Ltd [143]. Indeed, the speculation may find expression in the question of the extent of the ‘savings’ that the child would have accumulated, as well as in the question of the identity of his dependants at the relevant times. But the speculation is a constraint that the tortious claim must address — not by means of abandoning the principle, but by an appropriate choice of the manner of applying it. Thus, for example, it is possible to suggest, in the claim of the minor, that increased expenses should be deducted from the compensation in the absence of dependants, and this method should be preferred over the more speculative assumption concerning the (future) existence and number of dependants, by deducting the part of the injured person.

50. In practice, the difficulty of assessing the damage for the loss of earnings, in the case of an injured person who is a child, is not unique to the issue of the ‘lost years.’ Many times, when a child is injured as a result of a negligent act, this can harm his future earning capacity or the possibility of finding a place in the work market. The court is required to award him compensation on the basis of assumptions and estimates, and the degree to which these are based on reality may vary from case to case. Indeed, in the case of a child, a difficulty may arise in measuring the extent of the loss of earnings, since often details are lacking with regard to the earning potential of the injured person, and the court finds itself in the dark. ‘… Determining the loss of the future earnings of a minor, who has not yet actually entered into the work market, is always a guess, which is greater the younger the minor is’ (Justice Y. Malz, in CA 311/85 Efraimov v. Gabbai [46], at p. 194). Frequently, at the time of the injury, and also at the time of the trial, the injured minor has not yet chosen his profession, has not yet begun a course of professional training, and the difficulty of estimating what the future holds for him is obvious (see the remarks of Justice T. Or in CA 634/88 Attiya v. Zaguri [47], at p. 101). Nonetheless, this difficulty cannot, as a rule, prevent the actual award of compensation for the harm to earning potential, which is an asset that belongs to its owner. ‘The special difficulty in estimating the compensation for a child at this age should not completely prevent a determination in some amount’ (CA 209/53 Weizman v. Zucker [48]; Naim v. Barda [3], at p. 786; see also Croke v. Wiseman [137]). The court is not intimidated from attempting to determine amounts that will reflect, to some degree or other, the damage caused to the injured person, and this has on several occasions been done by determining a global amount (CA 685/79 Atrash v. Maalof [49], at p. 630; CA 335/59 Reichani v. Tzidki [50]; CA 326/88 Zimmerman v. Gavrielov [51], at p. 360) or by relying on the amount of the average salary in the economy (CA 142/89 Gamliel v. Oshiot Insurance Co. Ltd [52]).

It would appear that similar considerations should also guide the award of compensation in cases where we are concerned with the loss of earnings in the ‘lost years’ of a child. In Estate of Sharon Gavriel v. Gavriel [1], at pp. 557-558, Justice Barak expressed the opinion that:

‘We should not establish a legal principle to the effect that the compensation to which a young child is entitled is always minimal or even nothing. No hard and fast rules should be determined in this respect. Everything depends upon the circumstances of each individual case, i.e., on the factual basis that is presented before the court considering the matter, and they may be cases in which the compensation will be significant (see: Rose v. Motor Vehicle Insurance Trust [108]) (Estate of Sharon Gavriel v. Gavriel [1], at pp. 557-558).

Thus, the mere fact that the injured person is a minor should not, in principle, affect the question of the entitlement to compensation, even though it is possible that it will have significance in determining the amount of the compensation. The plaintiff who is a minor will be entitled to claim compensation and this right remains unassailable even where the assessment of the compensation is very modest.

Interim summary: the claim of the living injured person

51. The various legal systems have directed their attention to the issue of the ‘lost years.’ Different approaches have adopted by the different systems, but it can certainly be said that in many countries — some of which have common principles with the Israeli legal system in this context — the head of damage of the ‘lost years’ is recognized as damage for which the living injured person can sue. This is the case in England, Canada, Australia, Ireland, Scotland, New Zealand and the United States. A similar approach should also be adopted by us, in so far as the claim of the living injured person is concerned. Thereby we will be giving expression to the basic principles of the law of compensation, both for the goals that the law of torts seeks to realize, and also for the social purpose that involves ensuring the status of the dependants.

Should the law also be applied in this way with regard to a claim of the estate?

Compensation for the ‘lost years:’ claim of the estate

52. We have hitherto examined the entitlement of the living injured person, whose life expectancy has been reduced, to compensation for the loss of his earning capacity in the ‘lost years.’ Let us now consider the other question, which concerns the right of the estate to claim this head of damage, where the life expectancy of the injured person was shortened to such a degree that he did not manage to claim his damage. We have discussed how the rights of action of the deceased injured person against the tortfeasor — both for pecuniary loss and for non-pecuniary loss — ‘survive’ his death and pass to his estate. Prima facie, no question arises therefore with regard to the existence of a right of action of the estate for the damage of the loss of earning capacity in the ‘lost years.’ Notwithstanding, some of the countries that have recognized the entitlement of the living injured person to compensation for this head of damage, have not recognized a similar right of the estate.

53. In England, the court originally held that the provisions of the law did not allow a distinction between the claim of the living injured person and the claim of the estate. Consequently, once it had been established in Pickett v. British Rail Engineering Ltd [135] that the living injured person, whose life expectancy has been shortened by a tortious act, had a right to compensation for the loss of earning capacity in the ‘lost years,’ the courts applied the rule also with regard to claims of an estate (see Gammell v. Wilson [147]; Kandalla v. British European Airways Corp. [150]). The courts in England were not always comfortable with this result, and they emphasized that the difficulty that was created as a result of the ruling in Oliver v. Ashman [134], and which was overturned in Pickett v. British Rail Engineering Ltd [135], does not exist when the injured person himself did not file a claim in his lifetime. This is the case because in such a case the estate’s claim and the dependants’ claim do not exclude one another; in other words, the dependants have an independent claim for loss of support. As Justice Griffiths said in Kandalla v. British European Airways Corp. [150]:

‘The same dilemma does not arise in a case such as the present where the wage earner has been killed in the accident and claims are brought both under the Law Reform Act for damages on behalf of the estate and under the Fatal Accidents Acts, for both actions can run concurrently. Justice can be done to the parents by an award under the Fatal Accidents Acts and any sums for the “lost years” awarded under the Law Reform Act which exceed the value of the Fatal Accidents Act damages will be a pure windfall for the parents’ (at pp. 168-169).

A change of legislation in England put an end to the possibility of the estates of deceased injured persons making a claim for the ‘lost years’ (see the Administration of Justice Act 1982, s. 4, following the recommendations of the Law Commission and the Pearson Royal Commission). The main reason for this legislative change was the desire to prevent a situation of a windfall for the dependants, as occurred, allegedly, in Gammell v. Wilson [147].

54. This approach of the English legislature has not escaped criticism, which has been expressed, inter alia, on the grounds that this is not the only case in which the relatives of the injured person enjoy a ‘windfall’ of this kind, and denying compensation for this reason, only for the head of damage of the ‘lost years,’ is somewhat arbitrary. Consider, for example, the compensation awarded to the estate for the pain and suffering of the deceased before he died, or the pecuniary benefit of the relatives of the injured person who is in a permanent vegetative state and who is entitled in his lifetime to compensation for the loss of earning capacity.

Another criticism that has been made in England with regard to the provisions of s. 4 of the Administration of Justice Act 1982 is that the right of claim of the estate for the ‘lost years’ has been denied, in accordance with this provision, also in cases where the dependants do not have a right of claim for loss of support. This, for example, is the case where the earning capacity of the injured person is reduced by a tortious act, but the injured person died before trial for a reason unconnected with the tort. The dependants remain, in this situation, without support and without compensation (see Cane & Harris, ‘Legislation,’ supra).

A similar process to the one that took place in England can also be seen in Australia. At first the court there held that in the absence of legislation providing otherwise, the right of the injured person to sue for the loss of earning capacity in the ‘lost years’ passes to the estate (see Fitch v. Hyde-Cates [109]). However, this ruling was overturned by the legislature in most states and territories (see Fleming, The Law of Torts (seventh edition, 1987) at p. 640, and also Trindade & Cane, The Law of Torts in Australia, supra, at pp. 548-549). In Scotland also the legislator has denied the right of claim by the estate for the loss of the deceased’s earnings after his death (see Damages (Scotland) Act 1976, s. 2).

55. In Canada, there is no uniform response to the question of the ‘survivability’ of a claim for the loss of earnings. As a rule, when the death of a person is caused by a tort, the estate has a claim for the loss of earnings in the period that preceded the death. However, this is not necessarily the case with regard to the loss of earning capacity in the ‘lost years.’ In the province of Saskatchewan the legislature provided, expressly, that the damage of loss of income after the death of the injured person is not claimable under the Survival of Actions Act (see s. 6(2)(b) of the Act). This was also provided by the legislature of the province of British Columbia (see the Estate Administration Act [RSBC 1996], s. 59(3)(c)). The reason underlying these provisions of statute is the desire to prevent compensation on two parallel tracks — the claim of the estate and the claim of dependants, which would mean a windfall for the estate (Cassels, Remedies: The Law of Damages, supra, at p. 192).

A similar approach has been adopted by case law in other provinces, such as New Brunswick (see Saint John Regional Hospital v. Comeau [123]), the province of Ontario (see Balkos v. Cook [261)) and the province of Prince Edward Island (see Rayner v. Knickle [125]). However, in the province of Manitoba, the court recognized in one case a claim of an estate for the loss of earning capacity in the ‘lost years’ (see Woollard v. Coles [126]).

56. An interesting development on this issue occurred in the province of Alberta in Canada, where case law recognized the claim of an estate for compensation for the lost years of earnings. Duncan (Estate of) v. Baddeley [121], which led to much discussion, considered the claim of the estate of a sixteen year old boy who was killed in a road accident, without leaving any dependants. The court held that:

‘… in Alberta a claim for loss of future earnings does survive the death of the victim. And, with two important qualifications, that claim should be assessed as would any claim for loss of future earnings.’

The court in Alberta held, therefore, that the claim for compensation for the loss of earning capacity ‘survives’ the death of the injured person. In giving its reasons for this conclusion, the court said, inter alia, that just as the estate is entitled to compensation for an asset that was destroyed in the accident in which the deceased lost his life (for example, a watch that the deceased wore on his wrist), so should compensation be awarded to the estate for the asset included in the loss of earning capacity. The court also was of the opinion that there is no justification for distinguishing between an injured person who has ‘succeeded’ in remaining alive until the date when the judgment is given, and an injured part who died a day before judgment was given, where in the first case the entitlement to compensation for the ‘lost years’ has been established, and the relatives are entitled to inherit the compensation money after the death of the injured person, while in the second case, the tortfeasor who has made death imminent or who has been able to delay the proceedings is not required to pay compensation. The two qualifications to which the court alludes in the aforesaid citation concern the deduction of the living expenses and income tax — during the reduction of the life expectancy — from the amount of the compensation (for further discussion of the judgment, see, for example, C.L. Brown, ‘Duncan v. Baddeley: Reconciling the “Lost Years” Deduction with Fatal Accident Cases,’ supra; for similar case law, also in the province of Alberta, see Galand Estate v. Stewart [127]; Brooks (Estate of) v. Stefura [128].

57. But in Alberta too the law in this respect was changed, when in the year 2000 the legislature accepted the recommendations of the Alberta Law Reform Institute, which were published in 1998 (Report no. 76), and amended the Survival of Actions Act in such a way that the estate cannot recover for:

‘damages in relation to future earnings, including damages for loss of earning capacity, ability to earn or chance of future earnings’ (s. 5(2)(c))

It should be noted that the Alberta Law Reform Institute reached its conclusion on the basis of a process of thought involving six stages: first, the basis for the payment of compensation for the loss of a chance of future earnings is compensation for the injured person; second, payment of money cannot compensate someone who has died, and loss of the deceased’s chance of future earnings does not cause the estate any loss. Therefore, payment of compensation for loss of a chance of future earnings does not compensation anyone; third, justice does not require a payment of money for loss of a chance of future earnings for any purpose other than compensation; fourth, doing justice to the family members, whom the deceased left behind, is done most directly and effectively by means of an action of the dependants, and justice does not require this by way of an action of an estate for loss of a chance of future earnings; fifth, the chance of future earnings is not an asset that can be bequeathed; sixth, the valuation for a loss of a chance of future earnings is difficult and requires ‘gazing into a crystal ball.’

58. The path delineated by the Alberta Law Reform Institute is not without difficulties. We will not elaborate on this, but at the same time we will not remain silent on this issue, especially in view of the fact that the Institute’s arguments reflect the position of those who deny the compensation, and we should point to several counterarguments that challenge this position. The compensation for the loss of earning capacity is, indeed, compensation for damage that is caused, in the nature of things, to the injured person. We have already discussed how the earning potential is an ‘asset’ that belongs to a person, whose financial value is estimated according to the ‘value of the output that he is likely to produce while he is alive, i.e., according to the value of the earnings receivable from making use of the skill’ (Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ supra, at p. 257). The harm to this potential gives rise to an entitlement to compensation, and as stated the fact that the injured person will not be alive in the ‘lost years’ does not negate this entitlement. With regard to the estate, it should be remembered that had the injured person realized his earning potential, it is certainly possible that his estate would have been larger. In this sense, it can be said that the death of the injured person caused a loss to the estate (see In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 428).

The following can also be said: most of the arguments of the Alberta Law Reform Institute are not inconsistent, in my opinion, with the recognition, which has been widespread in Canada for many years, of the right of the living injured person to compensation for the ‘lost years.’ Thus, for example, the Institute thought that there was no basis for awarding compensation when the injured person himself is not able to enjoy it. But we have seen that even with regard to the living injured person the assumption is that he will not be alive in those years, and in any event he too will not be able to enjoy the compensation attributed to the lost period. Admittedly, from a practical viewpoint the living injured person can make use of all the amount of the compensation during the years of life that he has left, since in general (although not always) the compensation is awarded by means of a capitalized lump sum payment. But this cannot affect the nature of the compensation, which is compensation that is given for the lost years of life, and therefore from a theoretical point of view, the aforesaid argument concerning the inability of the injured person to enjoy the compensation for the ‘lost years’ is valid to a large extent also with regard to the living injured person. As has been explained above, this argument cannot withhold the compensation from the living injured person — this has also been held in Canada — and the report of the Institute contains no convincing reason why it should result in denying the compensation to the estate. And if we are making a comparison with the case of the living injured person, it is fitting to cite the remarks of the Albertan court in Duncan (Estate of) v. Baddeley [121]:

‘When the injured person survives until judgment, he is given substantial damages. The fact that he dies the day after judgment does not reduce the damages, nor remove his beneficiaries’ right to inherit them. Indeed the very reason for the damages is the accurate foresight that he would die young…

Why should the tortfeasor escape scot-free if the plaintiff dies the day before judgment is pronounced? Worse still, why should the tortfeasor who has made death imminent escape scot-free if he manages to drag out the litigation long enough that he produces the very death in question, before judgment?

In my view, the issues here transcend questions of social utility or inheritance. They involve justice.’

With regard to the dependants, albeit where we are speaking of a claim by an estate, and the injured person himself did not file a claim when he was alive, the dependants have an independent claim for loss of support, so that awarding compensation for the ‘lost years’ does not serve the purpose of protecting their interest. However, it should be remembered that the estate stands in the stead of the injured person himself, and its right derives from the right of the injured person; therefore, recognition of the right of the living injured person to compensation for the ‘lost years’ necessitates, in the absence of a statutory provision to the contrary, a recognition of this right in the claim of the estate. Moreover, as aforesaid, it is difficult to find a material difference — in so far as the estate receiving a ‘windfall’ is concerned — between a right of claim for loss of earning capacity in the ‘lost years’ and a right of claim for other damage caused to the injured person, such as the non-pecuniary damage of pain and suffering and loss of life expectancy, with regard to which it is accepted in our legal system that the estate has a right of claim (see Estate of David Azoulay v. Vulcan Casting Enterprises Ltd [24], at p. 560). The ‘survivability’ of both one and the other is not intended to compensate the dependants — for this purpose they have a separate right of claim — but to have the estate include the wealth reflected in the deceased rights of claim, as s. 19 of the Ordinance directs. It appears that it is in fact the compensation for loss of earning capacity — which as aforesaid is an asset that belongs to its owner — that is more suitable for being bequeathed than the compensation for pain and suffering, which is of a special ‘personal’ character. In any event, it is clear that had the injured person been alive, filed a claim and obtained a judgment in his favour, and then died as a result of an external factor, whether tortious or not, the compensation that he would have been awarded would constitute a part of his estate, and no-one would regard this as a ‘windfall’ more than any other asset of the deceased that passes to his heirs. The enrichment of the heirs is a result of two things: first, the legal rule that provides that a claim of the injured person survives after his death, if he has not exhausted it; and second, the concept of the inheritance of wealth, which has been accepted since time immemorial in human society. The head of damage concerning the loss of earning capacity is, from this viewpoint, not at all unique. And as for the claim that the difficulty is double compensation, below it will be explained that the amount to which the dependants are entitled in their independent claim should be set off against the amount that is receivable by the estate.

Finally, even the argument raised by the Alberta Law Reform Institute with regard to the difficulty in estimating the damage does not necessarily lead to the conclusion that one should deny, absolutely and in every case, the right of the estate to compensation. This argument is correct in many cases where compensation is awarded for future damage — ‘the doctrine of compensation is a doctrine of uncertainty’ (CA 237/80 Barsheshet v. Hashash [22]). This is especially correct when we are dealing with a loss of future earning capacity. ‘The courts have pointed out many times the difficulty in determining and calculating the loss of the injured person’s future earning capacity. This is an attempt to estimate and determine facts where there is no certainty, and facts, guesses and estimates combine together. The main thing is that anything that today is considered expected may turn out, when times and circumstances change, as a totally unreliable way of estimating loss of earning capacity’ (per Justice T. Or in Youness v. Israel Car Insurance Pool [19]). Indeed, whether we are dealing with the loss of earning capacity in general or the loss of earning capacity in the ‘lost years’ — the art of calculating the compensation is a difficult one, and can be compared to gazing into a crystal ball. But this is not sufficient to deny the actual right to the compensation, even though, as we have already seen, in English law, in some cases where the compensation is too speculative it has been held that the amount of compensation is low or even nothing. So we see that the right to compensation is one thing, and the assessment of the compensation quite another.

59. This is the situation in Canada. In Ireland, the rights of claim of the deceased pass to the estate, subject to several exceptions. The exceptions to the passing of the right do not include a right of claim for loss of earning capacity in the ‘lost years’ (see Civil Liability Act 1961, s. 7; The Law Reform Commission, Report on Personal Injuries: Periodic Payments and Structured Settlements (1996)). In South Africa, on the other hand, the possibility of the estate filing a claim for loss of earning capacity in the ‘lost years’ was denied in Lockhat's Estate v. North British and Mercantile Insurance Co. Ltd [165].

60. In the United States, the legal position on this issue is complex, and is deeply rooted in the legal system there. There are States that recognize both an independent claim of certain family members for the damage that they suffered as a result of the deceased’s death (a wrongful death action), and also a claim of the estate (or of another lawful representative) for the deceased’s causes of action that ‘survived’ his death (survival statute). Among those States, some recognize the possibility of including in the surviving claim the head of damage of loss of the deceased’s future income. The meaning of this recognition is what leads to a fear of double compensation: both compensation of the family members in a wrongful death action for that part of the deceased’s future income that would have been devoted to their support, and also compensation for loss of future income of the deceased within the framework of the survival action (see Hindmarsh v. Sulpho Saline Bath Co. [95], at p. 808). But at the same time, this recognition, according to those States, is capable of preventing a tortfeasor who by his act brought about the death of the injured person from having to pay out a windfall (see James O. Pearson Jr., ‘Recovery, In Action for Benefit of Decedent's Estate in Jurisdiction Which Has Both Wrongful Death and Survival Statutes, of Value of Earnings Decedent Would Have Made After Death’ 76 A.L.R. 3d 125 (1977)). Since the living injured person is entitled to claim compensation for the loss of his income during his normal (unreduced) life expectancy, and since the survival laws are intended to preserve the cause of actions of the deceased injured person, it follows that, according to the case law of some courts in the United States, the survival claim for loss of income that the deceased would have had if he had lived a normal life expectancy should be recognized (see Balmer v. Dilley [96] at p. 458).

Thus, for example, in the District of Columbia, the case was considered where a man died by drowning, when his car fell from a bridge as a result of a road accident. The court held, in that case, that there was nothing to prevent recovering under both laws, since:

‘loss to the estate is represented by that part of the deceased’s net probable future earnings that probably would have been utilized by the deceased to enlarge his estate, whereas loss to the spouse and next of kin is represented by the loss of a source of maintenance for such things as food, clothing, shelter, educational expenses, and the like’ (Runyon v. District of Columbia [97] at p. 1323).

In the State of Pennsylvania it was held, in the case of a five year old girl who was killed in a road accident, that her estate:

‘… is entitled to the present value of the decedent’s prospective earnings for the period of her work-life expectancy after reaching the age of twenty-one, less her anticipated maintenance expenses, plus recovery for her pain and suffering’ (Weaver v. Ford Motor Co. [98], at p. 1077).

This is also the law in the State of Texas (Hope v. Seahorse, Inc. [99], at p. 990) and in the State of Washington (Balmer v. Dilley [96], at pp. 458-459); for a review and additional references, see Pearson’s article, supra.

The courts that awarded damages to the estate for loss of earnings in the ‘lost years’ were of the opinion, in general, that the living expenses that the injured person would have needed if he had lived, as well as the expenses that he would have incurred for the support of others, should be deducted from the amount of the income that would have accrued to the injured person in those years. The purpose of this, so it was held, was to prevent a windfall to the estate of the payment of double compensation to the dependants (see Pearson’s article, supra, and also Murray v. Philadelphia Transp. Co. [100], at p. 325; Ferne v. Chadderton [101], at pp. 107-108).

61. By contrast, there are States in the United States in which the two claim tracks do admittedly exist, but in a claim under the survival statute it is not possible to claim compensation for the loss of the deceased’s future income. This is the case, for example, in the States of Hawaii, Kansas, Massachusetts, Missouri, Maryland, Wisconsin and other States (see, inter alia, Greene v. Texeira [102], at pp. 1172-1173; Prunty v. Schwantes, 162 N. W. 2d 34, 37-38 (1968); Eric W. Gunderson, ‘Personal Injury Damages Under the Maryland Survival Statute: Advocating Damage Recovery for a Decedent’s Future Lost Earning,’ 29 U. Balt. L. Rev. 97 (1999)).

There are also States in the United States where there only exist statutes of a nature of a survival statute. This is the case, for example, in Connecticut, Georgia, Florida, Mississippi and Tennessee. In these States also it has on several occasions been held that the head of damage of the loss of income capacity may be included in the claim (see, for example, Sanderson v. Steve Snyder Enterprises, Inc. [104], at p. 397).

62. Returning to Israel, s. 19(a) of the Torts Ordinance provides, as we have already seen, that causes of action in torts that a person who died could have brought or could have had brought against him continue to remain valid for or against the estate of that person. It seems, therefore, that in Israeli law the existing law is clear; it is that no distinction should be made between the personal claim of the living injured person and the claim of the estate of the deceased injured person. Therefore, once we have determined that we should recognize a right of the living injured person to a claim for the loss of earning capacity in the ‘lost years,’ we must automatically, in the absence of a statutory provision to the contrary, recognize also the right of the estate to the same cause of action. Indeed, ‘if we recognize the right of the living injured person, whose life expectancy has been reduced, to receive compensation in his lifetime for the ‘lost years,’ it is very difficult, on a “technical” level, not to recognize the right of the estate’ (Estate of Sharon Gavriel v. Gavriel [1], at p. 560). This is the case with regard to the non-pecuniary loss involved in the loss of years of life (within the framework of the head of damage of loss of life expectancy), and it should also be the case with regard to the pecuniary loss involved in the same damage. ‘In both cases, we are concerned with compensation for the years of “non-life;” in both cases we are concerned with compensation for loss, which will occur after the death of the injured person, and in both cases we are concerned with objective loss and not with compensation for the subjective feeling of the injured person in his lifetime about his death’ (ibid.). This approach, according to which the same law applies to the estate as to the living injured person, is accepted, in practice, by everyone, and in England it led, as aforesaid, to the recognition, in case law, of compensation for the ‘lost years’ also in the claim of the estate (until the law was changed in this regard; see mainly Gammell v. Wilson [147]).

63. Our conclusion is, therefore, that once we have determined that we should recognize the right of the living injured person to compensation for loss of his earning capacity in the ‘lost years,’ we also should recognize a similar right of his estate. This is the ‘Gordian knot’ that ties the law applying to the estate to the law applying to the living injured person, which Justice Barak also discussed in Estate of Sharon Gavriel v. Gavriel [1], and this knot — whether it is desirable law or not — cannot be untied without a change in legislation.

We shall now seek to address two additional matters, which are connected with the question of the entitlement of the estate to compensation for the loss of the deceased’s earnings in the ‘lost years.’ The first concerns the ruling in Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7], and the second concerns the question of the fear that the tortfeasor will be found liable for double compensation.

The Hananshwili ruling

64. In Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7], a person was injured in a road accident. As a result of the accident, he suffered a 28% permanent disability, and his earning capacity was reduced. Before he filed a claim for his damage, he had the misfortune to be injured in another road accident, in which he lost his life. His widow and children filed a claim, as heirs and as dependants, against the insurance companies liable for the damage in the accidents, and the question arose as to who was liable for the loss of the 28% of the injured person’s earning capacity during the period from the date of the second accident until the end of the injured person’s life expectancy. The Supreme Court held that the second accident denied the injured person the possibility of suing the first tortfeasor for compensation, for the loss of the earning capacity in the aforesaid period. Therefore, it was held that the second tortfeasor was liable to compensate the estate for this damage. In the words of Justice Netanyahu:

‘The second tortfeasor takes the injured person as he is, for better or for worse. He found the injured person who had been injured in the first accident and his work capacity was reduced (in our case by 28%). He brought the injured person to a situation where he had a 100% loss of work capacity. He is not liable to compensate the dependants for loss of support to the extent that it was caused by the first accident. Therefore his liability will not be in an amount of 100% but in an amount of 72%. But he also found an injured person with a right of claim against the first tortfeasor for a loss of future earnings in an amount of 28%, which occurred and accumulated also in the interim period. This right of claim was lost to the estate as a result of the deceased’s death. He must compensate the estate for this loss’ (ibid., at p. 551).

We have already pointed to the ‘footprints’ of compensation awards for the ‘lost years’ in out legal system. Here you have additional footprints. Admittedly, the court pointed out that in view of the rule in Estate of Sharon Gavriel v. Gavriel [1] the first tortfeasor was not liable to compensate the estate for the loss of the injured person’s earning capacity after his death (ibid.). However, the court saw fit to find the second tortfeasor, who caused the injured person’s death, liable for compensation for loss of work capacity, notwithstanding the regrettable fact that the injured person would not be alive in that period of lost earnings. The court did this on the basis of the ‘claimable damage’ inherent in the loss of the possibility of filing a claim against the first tortfeasor, but this cannot change the fact that in practice compensation was awarded here for the loss of earning capacity in the years of non-life (in an amount of 28% of the expected income of the deceased in those years; this amount was added to the compensation that was awarded to the dependents for loss of support). The connection — and the possible conflict — between the judgment in Estate of Sharon Gavriel v. Gavriel [1] and the judgment in Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7] was discussed by Prof. A. Porat in the following terms:

‘The inability of a person to claim compensation for the “lost years,” either from the first tortfeasor or from the second tortfeasor, derives from the ruling of the Supreme Court [in Estate of Sharon Gavriel v. Gavriel] which is based on the approach that in the “lost years” the injured person did not suffer any damage of a reduction in his earning capacity! In the absence of damage, there is no compensation. In Hananshwili the Supreme Court resorted to this very approach, in order to explain the unambiguous inability of the estate to claim any compensation from the first tortfeasor, for harm to the earning capacity relating to the interim period, which is none other than the “lost years.”

If this is the case, then the injured person in Hananshwili lost his cause of action against the first tortfeasor primarily for the reason that after the death there is no longer any damage as a result of a reduction in the earning capacity. Granting any compensation to the injured person for loss of earning capacity relating to the “lost years” will give him overcompensation in excess of his damage…

[The Hananshwili ruling] may, possibly, raise an additional question mark to the ones already raised as to the correctness of the “lost years” rule’ (A. Porat, ‘Law of Torts,’ Israel Law Annual 222 (1991), at pp. 255-256.

Note that in Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7] the Supreme Court awarded the estate compensation as aforesaid, even though it was incapable of benefiting the injured person — who was no longer alive — but only his dependants and heirs.

The fear of double payment

65. One of the main arguments raised against awarding compensation to the estate for the ‘lost years’ is that doing so will cause injustice to the defendant, who will be required to pay twice — once in the dependants’ claim for the damage of loss of support and a second time in the claim of the estate for loss of earnings in the ‘lost years.’ Such a danger does not exist in the claim of the living injured person, since in this case there is no claim of the dependants. However, where the deceased has not exhausted his claim in his lifetime, the defendants’ claim is not barred, and it may stand alongside the claim of the estate. This is what leads to the fear that the tortfeasor may be found liable to make a double payment.

In practice, there are several different scenarios of the relationship between the dependants’ claim and the estate’s claim, and consequently of the way in which the amount of compensation payable to the estate for the ‘lost years’ should be calculated. We will seek to show that in all these scenarios, there is no real danger of imposing a liability for overcompensation on the tortfeasor.

66. The first scenario, which is the most common, is the one where the heirs are also the persons who were dependent on the deceased for their livelihood. In such a case, which as aforesaid is the usual one, there is no fear of double compensation. This is because of the deduction rule, which directs us to deduct from the claim of the dependents the benefit that they received from the estate, including the compensation for the ‘lost years.’

Notwithstanding, it should be noted that occasionally, where the heirs are also the dependants, the fear of double compensation is solved in another way, namely not by means of the deduction rule. This group of scenarios includes several possibilities: first, it is possible that the dependants-heirs do not have any dependants’ claim. This will be the case where the deceased died as a result of another tortfeasor and also where he died not as a result of a tortious act. In these two cases, the death was not caused by the tort that was done by the tortfeasor who harmed the deceased’s earning capacity, i.e., the source of the dependants’ livelihood; in any event the claim of dependants does not arise and in any event there is no fear of double compensation. In the absence of a dependants’ claim there is no basis for reducing the value of the estate’s claim, not even conceptually. Another scenario that belongs to this groups of cases is where there is a dependants’ claim, and the dependants are the heirs, but they are not able to recover from the estate, because it is not solvent. In such a case, there is no practical application of the deduction rule, since in practice the dependants have not received, in their capacity as heirs, any benefit from the death of the deceased. Prima facie, this is the situation where the fear of double payment arises from the tortfeasor’s point of view. In practice, this fear will be realized rarely, since an estate that is bankrupt is, usually, the estate of someone who in his lifetime was unable to support the dependants with his own efforts, and this will naturally be taken into account in their claim.

67. Another scenario that requires consideration is the case where the heirs are not the people who were dependent on the deceased for their livelihood. This scenario, as aforesaid, is not the usual one, but here too we can solve the problem of the double compensation. It appears that the proper way of doing this, within the framework of the existing system, is to deduct from the estate’s claim the amount that the injured person would have spent on his dependants. The logic for this lies in the assumption that the injured person would have devoted this amount to the support of his dependants, whereas his heirs are no longer required to do this, since the dependants’ claim will be directed against the tortfeasor. This was well described by Justice Barak in Estate of Sharon Gavriel v. Gavriel [1]:

‘This solution is based on the distinction… between the right to compensation and the assessment of the compensation. According to this approach, the right of the estate to compensation is like the right of the living injured person to compensation, since “the estate is compared to a polished mirror,” which reflects the right of the injured person itself, but just because the actual right is identical does not mean that the amount of the compensation is identical. Just as when assessing the damage to the living injured person we must take into account the expenses that the living injured person spent on himself, and that were saved in the years of “non-life”… so too in assessing the damage to the estate we should take these expenses into account, as well as expenses that the injured person would have spent on his dependants and which he will no longer be required to pay, since the liability to compensate for them has been imposed on the tortfeasor… according to this approach, the tortfeasor will no longer pay double compensation, since the amount of the compensation that will be awarded to the estate will not include the amount that will be awarded to the dependants (ibid., at p. 564, and see the references cited there, at pp. 565-568).

A similar solution was adopted in several Australian judgments. This, for example, was held by Justice Taylor in the leading judgment in Skelton v. Collins (1966) 115 C.L.R. 94:

‘As to the possibility of the duplication of damages I observe that if an injured person has, himself, recovered damages no further action will lie for the benefit of his dependants in the event of his subsequent death whilst in the case where an action is brought, not by the injured person himself but, upon his death, by his legal personal representative for the benefit of his estate, the damages would be assessed having regard to the gain, if any, which would have accrued to the deceased from his future probable earnings after taking into account the expenditure which he would have incurred, if he had survived, in maintaining himself and his dependants, if any’ (at p. 114).

This solution to the problem of double payment is not in conflict with the provisions of statute. As Justice Barak held, in Estate of Sharon Gavriel v. Gavriel [1], the approach whereby the amounts of support devoted to the dependants are deducted from the estate’s claim can also be resolved with the rather vague provision of s. 19(b) of the Torts Ordinance, which states that ‘if a cause of action continues to exist as aforesaid in favour of the estate of the deceased, and the act or the omission that created the cause of action led to his death, the compensation that can be recovered by the estate shall be calculated without taking into account the loss or profit caused to the estate as a result of the death…’. This provision, so Justice Barak elucidated, concerns the loss or profit of the estate, whereas we are dealing with the loss or profit of the injured person before his death. When the dependants have an independent cause of action against the tortfeasor, for loss of support, the deceased is no longer required, prior to his death, to pay this expense (ibid., at p. 566).

Moreover, s. 19(d) of the Ordinance, which provides that ‘the rights given under this Ordinance to the estate of the deceased are intended to add to the rights given to the dependants of the deceased under this Ordinance or any other legislation and not to detract from them,’ concerns, according to well-established case law, the actual right to compensation, and not the amount of the compensation (ibid., see also General Federation Medical Fund v. Estate of Dr Meir Edison [30], at p. 80; Estate of Michal Kedar v. HaSneh Insurance Co. [25], at pp. 606-607). Therefore, even the provisions of this section do not preclude the possibility of adopting the solution set out above in our legal system.

68. It should be noted that the approach that the problem of double compensation should be solved by means of deducting the claim of the dependants from the claim of the estate has received criticism. The main criticism arises from the fact that in the claim of the living injured person the claim of the dependants is not deducted — we should remember that one of the main reasons underlying the awarding of compensation for the ‘lost years’ is to ensure the dependants’ interests — and there is no reason, so the criticism goes, to have different compensation principles for the claim of the estate (see Waddams, The Law of Damages, at § 12.220). The response to this claim is that the compensation principles are indeed different. The calculation of the damage arising from the lost years of earnings is made in the same way — both for the claim of the living injured person and for the claim of the estate. However, when awarding the compensation, the court should — here as in other cases — take into account the question of the double compensation and the savings accruing to the estate from the very existence of the dependants’ claim that is directed at the tortfeasor. The significance is that where compensation has already been given for the same damage, the court will not award additional compensation. This is only done in order to realize the rule of returning the injured person to his original position.

From all of the above it transpires that even the argument about the fear of double payment by the tortfeasor cannot change the conclusion that we have reached, whereby according to the existing law a right of claim by the estate for loss of earning capacity of the deceased in the ‘lost years’ should be recognized.

In calculating the compensation for the estate, an amount reflecting the expenses that the deceased would have incurred for his livelihood ‘in the lost years’ should be deducted (see also, in this regard, what we said above in respect of the compensation for the living injured person), as well as — in appropriate cases — an amount reflecting the expenses that he would have incurred for his dependants. An additional outcome of this compensation system is that, in the final analysis, the additional amount that the tortfeasor is required to pay — over and beyond what he would have been liable to pay in any case if the head of the ‘lost years’ had not been recognized — is quite modest. We are speaking of an amount that reflects the savings that the injured person would have accumulated in the ‘lost years.’

69. It should be emphasized that the solution proposed for our legal system to the difficulty inherent in the double compensation is not the only possible solution. As we have said, this difficulty has constituted a main stumbling block for making the tortfeasor liable, in a claim of the estate, to pay compensation for the lost years of earnings. Various countries have indeed denied the estate the possibility of claiming this head of damage. Thus, in those countries, the fear of double payment was averted. We discussed above the theoretical and practical difficulties inherent in that solution. In any event, it cannot be implemented in Israel without a change of legislation. But in my opinion, if the legislature is called upon to make a major change in the compensation system, this is not the change that I think it ought to choose. It appears that there would be an advantage to a change in exactly the opposite direction, namely the cancellation of the claim of the dependants and enriching the claim of the estate. This solution was proposed by Professor Waddams. In his opinion, the independent claim of the dependants that derives from the loss of the deceased’s earning capacity should be cancelled, and only one claim should be allowed — the claim of the estate — for these losses also. According to this approach, the compensation that will be paid for loss of earning capacity will be identical, whether the injured person remains disabled or whether he is killed in the tortious act, and whether he has dependants or not. As Professor Waddams explains, the solution is not new, and it was already suggested in England in the nineteenth century. This solution is attractive, inter alia because it removes the stain associated with the outcome that the law of torts is more lenient to the tortfeasor who kills that to the tortfeasor who wounds, and because it negates the fear of double compensation arising from double claims (see Waddams, The Law of Damages, at § 6.760). Notwithstanding, this solution also has a difficulty, and in any event it cannot be implemented in the legal system practised in Israel. The difficulty lies mainly in the need to refer the claim of the dependants for their damage to the estate, and the need to ensure that they will recover from the estate, even if it is insolvent and if the deceased disinherited them in his will. It follows that adopting this arrangement in full requires legislation. We therefore return to the compensation arrangement that has been delineated above, which brings the claim of the estate, within the limits of the existing system, to optimal results.

The lost years: summary

70. Approximately twenty years have passed since judgment was given in Estate of Sharon Gavriel v. Gavriel [1]. The change in legislation that was desired has failed to come, but a change in the legal climate has indeed occurred. It appears that the time has come to recognize in our legal system the head of damage of loss of earning capacity in the ‘lost years.’

A survey of the arguments made against the awarding of compensation for the ‘lost years’ shows that in practice these arguments fall under two main objections: the first is that the death of the injured person removes the foundation for awarding the compensation — ‘where there is no life, there is no loss of capacity’ or ‘where there is no enjoyment of the compensation, there is no compensation.’ The second is that there is a difficulty in assessing the damage and protecting the interest of the tortfeasor not to pay double compensation. The first main objection raises the question of the external balance — had it not been for the accident, the injured person would have earned a certain amount, and now, as a result of the accident, he cannot earn that amount. Does the awarding of compensation balance the scales? The second main objection concerns the internal balance. The accident gives rise — on the material plane — to gains and losses. Can both of these be taken into account in calculating the compensation?

My answer to both questions is yes. With regard to the first main argument, I believe that the award of compensation for the loss of earning in the ‘lost years’ corrects — admittedly not in the full sense of the word but in important senses — the major imbalance in the external balance that was caused by the wrongful act of the tortfeasor. The injured person has been deprived, by the wrongful act, of the ability to earn income and to make use of it for his needs and for those of his family. Awarding compensation addresses the need to take this into account, and ensures that the lack of balance caused by the tort will not remain unaddressed especially in cases where the result of the tortious act is particularly serious. Awarding compensation reflects the approach that as a result of the tortious act, the injured person is deprived of an asset — his earning potential — that he would have had if it had not been for the tortious act. The dispute revolves, in practice, around the question of the number of units of time in which this damage should be recognized. However, the time element is also a significant part of the ‘after’ pan in the external balance, since had it not been for the tort, the earning capacity would be expected to continue throughout the working life expectancy of the injured person. In other words, there can be no dispute as to what are the units of time in which the injured person would have continued to earn, had it not been for the tortious act, and what are the units of time in which he will in practice be able to earn as a result of this act.

Moreover, the award of compensation for the ‘lost years’ prevents the arbitrary results according to which compensation is not awarded for the loss of earnings to an injured person whose life expectancy is shortened, while compensation on this head of damage is awarded to an injured person in a permanent vegetative state, or to the estate for pain and suffering and reduction of life expectancy, all of which without any really adequate justification for the distinction. We should emphasize that also with regard to the injured person in a permanent vegetative state, the loss of earning capacity extends over units of time in which his physical and financial welfare is diminished and he is unable to enjoy the compensation money. This is certainly also the case with regard to the deceased injured person, in so far as concerns the non-pecuniary damages recognized in our legal system. Notwithstanding, case law has held that balancing the scales requires awarding compensation in these cases, and a coherent approach requires also awarding compensation here for loss of earning capacity in the ‘lost years.’ Perhaps most importantly of all, the awarding of the compensation for the ‘lost years’ (to the living injured person) ensures that a situation will not arise in which, although the dependants have been deprived by the tortious act of the support of the injured person — support that they would have received had it not been for that act — this damage will remain unremedied.

The second main objection concerns, as aforesaid, the internal balance and the need to prevent a double payment. The courts are accustomed to deal with claims of this kind, which means that the awarding of compensation must be done while taking into account the pecuniary gain and loss that arise from the tortious act, and with safeguards to prevent double compensation. We discussed above the rules that should be applied in this regard. This is the sole significance of the second main objection, and it has no effect on the substantive question concerning the right to compensation.

71. What emerges from all of the aforesaid leads us to one clear conclusion, namely that we should recognize the entitlement of the injured person to compensation for the lost years of earnings. This applies both to the claim of the living injured person and to the claim of the estate. It cannot be denied that the issue of the ‘lost years’ can be solved in other ways. There is also no doubt that one of the strongest reasons for awarding damages to the living injured person for the ‘lost years,’ namely the reason that concerns ensuring the future of the dependants, does not apply to a claim of the estate, in view of the fact that s. 78 of the Ordinance does not prevent the dependants from filing a claim for loss of support. In a claim of an estate, like the one before us, in which the injured person who died was a young child, there are special difficulties, as we have set out above. There is no obstacle, of course, to the legislature changing the legal position, whether on the issue of the ‘lost years’ in general, or on the issue of the right of the estate to compensation for this head of damage. But I am of the opinion that until such a change, if any, is made, we should adopt the approach that has been accepted, as aforesaid, in many other legal systems, according to which the living injured person, or his estate, is entitled to compensation for the damage of loss of earning capacity in the ‘lost years.’ A proper assessment of the compensation will balance the undesirable consequences of the fundamental determination.

72. The result is that the appeal in CA 140/00, in so far as it concerns the question of the entitlement of the deceased’s estate to compensation for loss of the deceased’s earning capacity in the ‘lost years’ should be allowed. The case is therefore returned to the District Court, so that it may determine the amount of the compensation for this head of damage.

Now let us turn to the other questions that arose in the appeals before us.

Punitive damages

73. Section 76 of the Torts Ordinance provides, with regard to the compensation for carrying out a tortious wrong, as follows:

‘Compensation may be awarded on its own or in additional to, or instead of, an injunction; but if (1) the plaintiff suffered damage, compensation may be awarded only for that damage that is likely to result naturally in the normal course of things and that resulted directly from the tort of the defendant.’

It has already been said that the word ‘compensation,’ as it appears in the Torts Ordinance, tells us tortious relief is not declaratory or penal, but remedial, and it is intended to remove the damage and remedy it (CA 1977/97 Barzani v. Bezeq, the Israel Telecommunication Corp. Ltd [53]; Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ supra). Indeed, as we have pointed out above, the purpose of compensation is to return the injured person, in so far as this is possible by means of a payment of money, to the same position he would have been in at the time of the tortious act, had there been no tortious act. This purpose is part of the fabric of the principle that a person is only liable for compensation for damage that he caused. This principle finds expression in making liability in torts conditional upon the existence of damage that the injured person suffered and upon a causal link between the tortious act and that damage.

74. Nonetheless, there are legal systems that recognize a relief of punitive, exemplary or vindictive damages, namely ‘damages that the tortfeasor must pay to the injured person in an amount that does not reflect an assessment of the damage that the tortfeasor caused to the injured person by the tort, but that intends to punish the tortfeasor for his dangerous conduct and thereby to express revulsion at it’ (A. Barak, Law of Torts — General Principles of Torts, supra, at p. 579). The punitive damages are distinguished from aggravated damages, which also take into account the seriousness of the tortfeasor’s conduct, but express ‘a genuine assessment of the damage caused [to the injured person], when this damage has been aggravated by the tortfeasor’s improper conduct’ (ibid. at p. 579; see also Khodaparast v. Shad [151]; Vorvis v. Insurance Corp. of British Columbia [129]; A. Beever, ‘The Structure of Aggravated and Exemplary Damages’ 23 Oxford J. L. Stud. 87 (2003)). The distinction between punitive damages and aggravated damages was described by Justice Kennedy as follows:

‘aggravated damage for conduct that shocks the plaintiff; exemplary (or punitive) damages for conduct which shocks the jury’ (Muir v. Alberta [130], at p. 714).

Punitive damages, therefore, do not rely upon a foundation of ‘remedy’ or ‘reparation.’ The rationale behind these is to punish and deter (see Hill v. Church of Scientology of Toronto [131], at p. 1208). On the essence of punitive damages, and the purpose underlying them, the House of Lords made the following remarks:

‘Exemplary damages or punitive damages, the terms are synonymous, stand apart from awards of compensatory damages. They are additional to an award which is intended to compensate a plaintiff fully for the loss he has suffered, both pecuniary and non-pecuniary. They are intended to punish and deter’ (Kuddus v. Chief Constable of Leicestershire Constabulary [152]).

75. The non-remedial nature of punitive damages constitutes a challenge for the classical clear-cut distinction between civil law — which focuses on compensation — and criminal law — which focuses on punishment. Civil law has always been regarded as seeking mainly to regulate relationships between individuals, and from this perspective punitive damages are classified as an anomaly. In this vein, concern has been expressed more than once that recognizing a power to award punitive damages introduces into civil law a function that is reserved for criminal law, while ‘compromising’ on the rules of evidence, the burden of proof and the rules of procedure that apply in criminal proceedings. Moreover, it has been claimed that awarding punitive damages imposes on the tortfeasor a risk of a ‘double sanction,’ where these are in addition to criminal sanctions. It has also been said that punitive damages are a windfall for the injured person, since they are intended to add to the remedial compensation that he has been awarded for his damage. Following this line of reasoning, it can be argued that even if it is justified to fine the tortfeasor, it does not necessarily follow that it is right that the injured person, rather than the State, should receive the sum (see Cassels, Remedies: The Law of Damages, supra, at p. 258; Beever, ‘The Structure of Aggravated and Exemplary Damages,’ supra; Cassell & Co. Ltd v. Broome [153]).

But contrary to all of the aforesaid there are significant reasons in favour of recognition of a power to award punitive damages, in those cases where the conduct of the tortfeasor is especially grave or it involved a serious infringement of constitutional rights. On a theoretical level it is argued that the distinction between civil law and criminal law is not so clear-cut, and these two branches spread out towards one another and intertwine, and it is even possible to distinguish a ‘grey area’ of ‘punitive civil law’ (see, for example, LCrimA 2976/01 Assaf v. State of Israel [54]; K. Mann, ‘Punitive criminal sanctions,’ 16 Tel-Aviv University Law Review (Iyyunei Mishpat) 243 (1991)). In the practical sphere, the added value inherent in awarding punitive damage has been emphasized especially in the deterrent effect and education against acts that should be censured, and in strengthening the protection of rights that deserve protection (see Conway v. INTO [162]). This is often the case in contexts or circumstances which the criminal trial cannot reach. Even the argument concerning the injured person receiving a windfall has been given a certain answer that ‘he can only profit from the windfall if the wind was blowing his way;’ in other words, the injured person who took the trouble to promote the public interest inherent in the awarding of punitive damages is the most appropriate person to receive them (see Cassell & Co. Ltd v. Broome [153]). It should also be noted that where a criminal proceeding also took place with regard to the tortious act, its outcome can be taken into account in the punitive damages (for these and other considerations, see also the detailed report of the Law Reform Commission in Ireland, which was published in the year 2000, with the title Report on Aggravated, Exemplary and Restitutionary Damages.

76. The economic analysis of the law of torts gives punitive damages an important role in promoting the purpose of effective deterrent. As we have stated within the framework of the discussion about the issue of the ‘lost years,’ it is customary to say that one should aim for compensation that reflects the damage that was caused. But an additional parameter affects the calculation, and this is the chance that no liability will be imposed at all for the tortious act. Indeed, not every tortious act leads to a claim in tort. Various factors play a part in this, including the costs of the claim or the injured person’s uncertainty as to whether his damage was caused by a tortious act or as to who the tortfeasor was. There are therefore some who think that punitive damages ought to be awarded, in cases where if this is not done, the deterrent will be defective because of the possibility that tortfeasors will evade liability. The amount of the punitive damages must, according to this approach, reflect the chance that the tortfeasor will not be found liable for his tort. Thus, for example, if there is a 25% chance that the tortfeasor will indeed be found liable for the damage that he caused, and the damage is in an amount of NIS 100,000, then the amount of the total compensation should be in an amount of NIS 400,000, of which NIS 100,000 are ‘remedial’ damages, and the remainder — NIS 300,000 — are ‘punitive’ damages (see A.M. Polinsky & S. Shavell, ‘Punitive Damages: An Economic Analysis,’ 111 Harv. L.Rev. 869, at p. 882).

77. The question of punitive damages is, therefore, a multifaceted one. In any event, in view of the unique nature of punitive damages, case law has usually treated them with reservations, or at least caution, even though it is possible to find, in the various legal systems, different approaches to the issue. Case law in England held, in the past, that the court may award punitive damages in any case of tort (Loudon v. Ryder [154]), but in 1964 the House of Lords, per Lord Justice Devlin, sought to limit punitive damages to certain cases only, on the grounds that such damages can lead to an overlap of the roles of civil and criminal law. Therefore Lord Devlin was of the opinion that punitive damages should not be awarded except where there is an express provision of statute and in two additional categories of cases: the first, cases where civil servants acted oppressively, arbitrarily or unconstitutionally, and the second, where the tortious act of the tortfeasor was planned by him with the purpose of procuring for him, the tortfeasor, a benefit in an amount exceeding the amount of the expected compensation. The purpose of the latter category is to deprive the defendant of the fruits of his tort, and to make it clear to him — and to others — that ‘tort does not pay’ (see Rookes v. Barnard [155]); this approach was expressed again by the House of Lords in Cassell & Co. Ltd v. Broome [153]). In one case it was held that the awarding of punitive damages should be reduced even further, so that punitive damages will be awarded only where the cause of action was recognized, for this purpose, before the judgment in Rookes v. Barnard [155] was given (see A.B. v. South West Water Services Ltd [1993] Q.B. 507; [1993] 1 All ER 609) but this restriction was rejected recently in Kuddus v. Chief Constable of Leicestershire Constabulary [152]. In Kuddus, as in many previous judgments, the judges were divided in their opinion as to whether punitive damages are an important tool in dealing with defective conduct of tortfeasors and infringement of the rights of injured persons (Lord Nicholls and Lord Hutton), or whether it was an anomaly that ought not to be recognized in the law of torts (Lord Scott). The Law Commission proposed that punitive damages should continue to be recognized, but their scope should be redefined, so that it would be possible to award them in any case of torts where the defendant ignored the rights of the plaintiff deliberately and outrageously (see UK Law Commission, Aggravated, Exemplary and Restitutionary Damages, Law Com. no. 247 (1997). The matter has not yet been dealt with in legislation (see W.V.H. Rogers, Winfield & Jolowicz on Tort (sixteenth edition, 2002) at p. 757).

78. The restrictions that were delineated in Rookes v. Barnard [155] were not adopted verbatim in countries such as Canada, Australia and New Zealand (see Vorvis v. Insurance Corp. of British Columbia [129]; Uren v. John Fairfax & Sons Pty Ltd [110] — a judgment that was upheld by the Privy Council in Australian Consolidated Press v. Uren [157]; Taylor v. Beere [163]; see also in Ireland, Conway v. INTO [162]). Notwithstanding, the courts there restricted the awarding of punitive damages to exceptional cases, especially those in which the conduct of the defendant is outrageous or deliberate to a degree that justifies his being penalized by means of finding him liable to pay the plaintiff a kind of ‘civil fine.’ The purpose of this is to give expression to the disgust of the court, and so that the tortfeasor and others may see and be afraid (see Hill v. Church of Scientology of Toronto [131], at p. 1208). A broader approach, with regard to punitive damages, is found in case law in the United States, from the viewpoint of the grounds for awarding them and from the viewpoint of the willingness to make use of them as a deterrent, as well as from the viewpoint of the size of the amounts awarded (see and cf. B.M.W. of North America Inc., v. Gore [105]).

It should be noted that an award of punitive damages focuses usually on torts involving intent, where the conduct of the tortfeasor deserves condemnation. Various legal systems have recognized the possibility of awarding punitive damages also in claims based on the tort of negligence, but the courts do this, as a rule, in limited and exceptional cases (see P.H. Osborne, The Law of Torts (Toronto, 2000) at p. 104; Trindade & Cane, The Law of Torts in Australia, supra, at p. 530; Lamb v. Cotogno [111]; Coughlin v. Kuntz [132]). The Privy Council recently held, in an appeal on the Court of Appeal in New Zealand, by a majority of three judges against two, that, in principle, punitive damages may be awarded also in cases of negligence that do not involve intent or awareness, provided that the basic condition of outrageous conduct exists. The majority opinion regarded the mental state of the tortfeasor as of great importance, in view of the approach that the purpose of damages of this kind is to punish, and not to express the dissatisfaction of the court at the conduct (A. v. Bottrill [158]; A. Phang & P.W. Lee, ‘Exemplary Damages — Two Commonwealth Cases,’ 62(1) C.L.J. 32 (2003)).

79. The courts in Israel have recognized the possibility of finding a tortfeasor liable for punitive damages. Already in CA 216/54 Schneider v. Glick [55], it was held that:

‘The attack of the appellant on the respondent was deliberate, not preceded by immediate provocation, and it was carried out with a savageness that was intended to shame the respondent in public. The court may take into account these special factors, such as the evil intent of the attacker and the shame that the victim suffered, in determining punitive damages… taking into account all of these factors, we find that the circumstances justified imposing a substantial amount as general damages…’ (ibid., at p. 1335).

Case law has repeatedly held that the courts in Israel have the power to award punitive damages (see CA 81/55 Kochavi v. Becker [56], at p. 234; CA 277/55 Rabinowitz v. Sela [57]; CA 30/72 Friedman v. Segal [58], at p. 237; CA 670/79 HaAretz Newspaper Publishing Ltd v. Mizrahi [59], at p. 205), even though this approach has been criticized (I. Englard, A. Barak, M. Cheshin, The Law of Torts — General Principles of Torts, second edition, G. Tedeschi ed. (1976), at pp. 583-584; see also the remarks of Justice Kister in CA 711/72 Meir v. Governors of the Jewish Agency for Israel [60]). There are those who think that we should consider the effect of the Basic Laws on this issue (CC (TA) 1549/96 Levy v. Hadassah Medical Organization [78]). In practice, the courts in Israel are not accustomed to award punitive damages, and they certainly do not do this frequently (CA 3654/97 Kartin v. Ateret Securities (2000) Ltd [61], at p. 406). It should be noted that Israeli law has express statutory provisions that specify, in certain contexts, an express power to award punitive damages (see for example s. 183 of the Patents Law, 5727-1967). The draft law of MK Nechama Ronen, in 2001, according to which a provision concerning punitive damages would be added to the Torts Ordinance, did not become legislation (draft Torts Ordinance [New Version] (Amendment — Punitive Damages) Law, 5762-2001). According to the draft law, the court might find the defendant liable for damages, in addition to the damages awarded under s. 76 of the Ordinance, ‘if it was held that the defendant acted in a way deserving of censure, and one of the following: (1) with the purpose of causing damage to another; (2) while deliberately and knowingly ignoring the rights or security of the other; (3) with gross negligence.’ It was also provided in the draft that by determining the proper quantum of punitive damages the court may consider, inter alia, the foreseeability — in theory and in practice — of the damage that was caused as a result of the acts or omissions of the defendant and the period of time during which the defendant carried out the acts or omissions that caused the plaintiff his damage.

80. In our case, the District Court was of the opinion that ‘the omissions for which the defendants who were convicted in the judgment were responsible are very serious omissions,’ but at the same time it emphasized that there are those who cast doubt upon the actual power to award punitive damages, and he said that, as a rule, ‘the courts only award punitive damages for torts that require intent or a deliberate act.’ It seems to me that we should not intervene in the conclusion of the trial court in this regard. The negligence of the respondents, as reflected in the judgment convicting them, is indeed shocking and led to a tragic outcome. Notwithstanding, it appears that even if the courts in our legal system have power to award punitive damages — and we are not required to decide this issue today — there is insufficient cause, in this case, to intervene in the decision of the District Court not to award the appellants punitive damages.

Reduction of life expectancy

81. In the category of non-pecuniary loss for personal injury are two main heads of damage, pain and suffering and reduction of life expectancy or loss of life expectancy. The head of damage of loss of life amenities is not recognized, in Israeli law, as an independent head of damage (see Weizman v. Zucker [48]; CA 372/65 Dehan v. Francis [62]; Estate of Robert Freilich v. State of Israel [21]; it should be noted that in England the head of damage of reduction of life expectancy has been rejected as an independent head of damage, by the Administration and Justice Act 1982, and now it falls within the scope of pain and suffering).

There are those who recoil from awarding compensation for non-pecuniary loss, because of the difficulty in estimating the amount thereof. It has already been said that in cases such as these ‘there is more speculation than calculation,’ since ‘how is it possible to assess, accurately or even approximately, in money or money’s worth, the pain and suffering or the anguish and hu