Torts

Amir v. Great Rabbinical Court in Jerusalem.pdf

majority opinion

Full text of the opinion:

In the Supreme Court

Sitting As the High Court of Justice HCJ 8638/03

Before:	His Honor, Vice President (Ret.) M. Cheshin Her Honor, Justice A. Procaccia His Honor, Justice S. Joubran



The Petitioner:	Sima Amir

v.

The Respondents:	1. The Great Rabbinical Court in Jerusalem
The Respondents:	2. The Regional Rabbinical Court in Jerusalem
	3. Yoseph Amir


On Behalf of the Petitioner:	Adv. Michael Korinaldi

On Behalf of the Third Respondent:	Adv. Nechama Segal

On Behalf Of the Rabbinical Courts System:	Adv. S. Jacoby

JUDGEMENT

Justice A. Procaccia

1. This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

2. The petition concerns the petitioner's motion to vacate the decisions of the Great Rabbinical Court in Jerusalem – the first respondent – of May 4 and June 9, 2003, which dismissed the petitioner's appeal against the judgment of the Regional Rabbinical Court of Jerusalem – the second respondent – of May 27, 2002, and its decisions of March 5, 2001 and June 18, 2002.

Background and Proceedings

3. The petitioner and the third respondent (hereinafter: “the respondent") were married in 1980 and have three children. Their relationship became unstable and they motioned the Regional Rabbinical Court of Jerusalem in 1992 in order to arrange for divorce proceedings. As part of that proceeding, the couple requested the Regional Rabbinical Court to approve a divorce agreement that they had made. In the agreement, the couple agreed on the act of divorce, the custody and support of the children, and various financial and property arrangements, as follows: the three children would be in the custody of the wife until reaching the age of 18 (clause 3); the husband would pay child support in the sum of NIS 1,000 per month for all three of the children until they reach the age of 18; the sum of the child support as set in the agreement would not be increased, and in exchange, the husband would transfer his share of the couple’s apartment to the wife, including his share of the apartment’s contents and the gold objects, ownership of which would all be transferred to the wife (clauses 4(a) and (b)); the husband also undertook to discharge the balance of the mortgage loan each month (clause 6(c)). The agreement also included a condition whereby the wife undertook not to sue the husband in any court for an increase in child support, either directly or indirectly, and if the husband were sued, the wife would compensate him in such a way that he would receive half of the apartment, half of its contents and half of the gold (clauses 4 and 5 the agreement). Taking out a stay of exit order inhibiting the husband's departure from the country would also be deemed a breach of the agreement and lead to the same result (clause 13). In order to secure the wife's obligation in accordance with the agreement, a cautionary note would be registered against the apartment, pursuant whereto one half of the apartment would be transferred into the husband's name if he were sued to increase child support. The relevant provisions of the agreement are as follows:

"4. Child Support

(e) For the avoidance of doubt and without prejudice to the generality of the aforegoing, child support under the agreement shall unequivocally cover all the children's needs without exception… until the children reach the age of 18.

The mother undertakes not to sue the father in any legal instance for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest), and if the husband is sued, the wife shall compensate him and he shall receive one half of the apartment, one half of its contents and one half of the gold. The obligation is in perpetuity.

…

5. Indemnification

(a) The mother undertakes and takes it upon herself not to sue the father in any legal instance whatsoever for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest).

(b) If, contrary to the abovementioned, the father is sued for an increase in child support and/or satisfaction of any of the children's needs, whether the lawsuit is brought by the mother and/or the mother in the name of the children or by an entity, authority, institution and/or anyone who now and/or in future has an interest, beyond what the father has undertaken in this agreement, then the mother undertakes to transfer one half of the apartment into the father's name and one half of its contents and one half of the gold. The obligation is in perpetuity.

(c) To secure the wife's obligations in this agreement, a cautionary note shall be registered, pursuant whereto one half of the apartment shall be transferred into the husband's name if the husband is sued to increase child support…"

The agreement also includes a provision with regard to the exclusivity of the Rabbinical Court's jurisdiction in the event of a dispute between them after the divorce, in the following terms:

"9. Cancellation of Mutual Claims And/or Complaints

…

10. …

11. If after the divorce, differences arise between the couple, they undertake to file the lawsuit solely in the Rabbinical Courts.

12. …

13. The wife undertakes not to take out a stay of exit order preventing the husband's departure from the country, and taking out such an order shall constitute a breach of this agreement, and the husband shall be entitled to obtain one half of the value of the apartment, of the contents and of the gold.

…"

The divorce agreement was given the effect of judgement by the Rabbinical Court, and on May 26, 1992 the couple was divorced.

4. About five years later, in June 1997, the couple's children (through the petitioner) filed a child support motion against the respondent in the Jerusalem Family Court (FC 10330/97). The motion was mainly intended to increase the child support upon which the couple had agreed in the Rabbinical Court to NIS 6,700. This was, inter alia, due to the petitioner's claim that the respondent was not paying the mortgage payments as undertaken by him in the divorce agreement. In the answer of defense, the respondent defended the claim on its merits. According to him, he was living off a general disability pension of NIS 1,200 per month, from which he was paying child support. The Family Court (per Judge N. Mimon) held in its judgement that the children's monthly support should be increased to a total of NIS 2,000 for both minor children together, and the sum of NIS 500 for the other child until his enlistment to the IDF; with respect to the minors, it was further held that from the time they reached the age of 18 until they completed their service in the IDF, the child support for them would be reduced by NIS 700, and upon completion of their military service the liability for their support will be terminated; if they do not enlist, the liability for them would be terminated when they reach the age of 18. With regard to the other child, upon his enlistment to the IDF and until his discharge, support of NIS 300 would be payable for him.

On September 20, 1997, about three months after the motion to increase child support was filed in the civil court, the respondent filed a motion in the Regional Rabbinical Court of Jerusalem "for a declaratory judgement and specific performance" of the divorce agreement. In the motion, he pleaded that the petitioner had breached the divorce agreement several times and in several different aspects, as follows:

"8 (a) The defendant (the petitioner – AP) filed a motion to increase child support in the name of the minors before this Honorable Court on February 28, 1993 – a motion that was dismissed by the Court

(b) The defendant filed another motion on November 6, 1994 and at the end of that motion the wife again applied for an increase in child support.

9. (a) The defendant went further, and when she saw that her motions were being dismissed by the Honorable Rabbinical Court, she filed a motion to increase the child support in the name of the minors in FC 10330/97 in the Jerusalem Family Court.…

(b) As part of the motion in Family Court, the wife applied for a stay of exit order that the Court approved.

(c) Moreover, at about the time she filed the motion, the defendant filed a motion for a stay of exit order on July 22, 1997, after the previous order inhibiting departure from the country had been set aside, and the Chief Execution Officer approved it".

He pleaded that the wife had therefore breached clauses 5 and 13 of the divorce agreement. On the basis thereof, the respondent sued the wife for one half of the apartment and its contents and one half of the gold.

5. After filing his motion to the Regional Rabbinical Court, the respondent traveled abroad for more than two years and abandoned his motion. After returning to Israel, he renewed the motion in the Rabbinical Court. The petitioner pleaded in her defense, that the subject of the motion was " breach of a divorce agreement" and according to the law laid down in HCJ 6103/93 Sima Levy v. The Great Rabbinical Court in Jerusalem, PD 48(4) 591 (hereinafter: "Sima Levy Case") the Rabbinical Court did not have jurisdiction to adjudicate the motion. As for the merits of the motion, the petitioner argued that the respondent had come to court with unclean hands because he had breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The Regional Rabbinical Court, in its decision of February 25, 2001, referred the issue of jurisdiction raised by the petitioner to the Rabbinical Courts' then legal counsel on rabbinical jurisdiction, Adv. E. Roth, for his opinion.

During the same month (February 2001) the petitioner filed a lawsuit in the Jerusalem Family Court against the respondent for "declaratory judgement as to the revocation of the indemnity provision in the divorce agreement" (FC 10331/97). This was based, inter alia, on the argument that the respondent breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The petitioner further requested that the Court declare the revocation of clauses 11 and 13 of the divorce agreement, pleading that they were "contrary to public policy and the law". The respondent argued in his defense that the claim should be summarily dismissed due to the proceedings conducted on the same issues in the Rabbinical Court.

On March 4, 2001, and before the Family Court had awarded its decision on the respondent's motion for the summary dismissal of the petitioner's claim, the opinion of the legal counsel on rabbinical jurisdiction, Adv. Roth, was filed in the Rabbinical Court. In his opinion, with reference to clause 5(b) of the divorce agreement, the Rabbinical Court did not have jurisdiction to adjudicate the respondent's motion after the divorce. Nevertheless, he believed that clause 11 of the divorce agreement could be treated as an arbitration clause in accordance with the Arbitration Law, 5728-1968 (hereinafter: "the Arbitration Law"). By virtue of the rules of arbitration, the Rabbinical Court is empowered to adjudicate the suit as an arbitrator in accordance with the rules and restraints governing an arbitrator. He further added that, in his opinion, it was unnecessary for the couple to sign an arbitration deed, since clause 11 of the divorce agreement constituted an arbitration deed in all respects.

Following the opinion of the legal counsel, Adv. Roth, the Regional Rabbinical Court decided on March 5, 2001 that it was vested with jurisdiction to adjudicate the respondent's suit "since in the Court's opinion clause 11 constitutes an arbitration deed".

On May 14, 2002, and before the Regional Rabbinical Court's judgement had been awarded in the respondent's suit, the Family Court awarded its decision in the respondent's motion for the summary dismissal of the petitioner's suit. It reviewed the question of the Rabbinical Court's jurisdiction to try the respondent's claim, whether as a court empowered by virtue of statute or as an arbitrator, but it decided to stay the award of its decision on jurisdiction on the ground that:

"Mutual respect of legal instances requires that after a decision has been awarded by the Rabbinical Court holding that it has jurisdiction to adjudicate the suit that has been filed with it as an arbitrator, the award of a decision on jurisdiction should be stayed until the proceedings in respect of jurisdiction have been exhausted by the plaintiff, who will perhaps wish to act by applying on appeal to the Great Rabbinical Court or by applying to the High Court of Justice to clarify whether her position with regard to jurisdiction will be allowed, or even by motioning to vacate an arbitral judgment as provided in section 24 of the Arbitration Law…"

On May 27, 2002, the Regional Rabbinical Court awarded its judgement in the respondent's motion. The court was divided in its opinion between the three judges, and the decision was made, in the words of the judgement, in accordance with –

"the third opinion, which was the decisive one of the three, since there are several doubts regarding the interpretation of the agreement, and there is a doubt as to whether it constitutes a breach according to Halachic authorities and the circumstances. Therefore, the case should be decided according to the law, and if the apartment has already been transferred into the wife's name, it is not possible to take away her ownership of the apartment because of a doubt, and of course the wife is liable to comply with all of the obligations in the divorce agreement.... If the apartment has not yet been transferred, it is not possible to order the plaintiff ... to transfer his share of the apartment into the wife's name ....

If the plaintiff has already signed a power of attorney and delivered it to the wife, it would appear that the wife cannot be precluded from exercising the power of attorney in order to transfer the plaintiff's share of the apartment into the wife's name…. On the other hand, if the husband still needs to sign transfer documents and the like, he should not be made to help transfer the dwelling into the wife's name in any way whatsoever….

With regards to the gold objects that the wife has received, it would also appear that she cannot be made to return them to the husband because they are in her possession and in this way her possession is valid…"

As mentioned above, according to the Rabbinical Court's decision of March 5, 2001 it decided the respondent's suit as an arbitrator, but on June 18, 2002 it awarded another decision that was headed "Clarification", according to which:

"The Rabbinical Court makes it clear that it was the Rabbinical Court that approved the agreement and that there was an undertaking that all matters involved in the agreement would be tried solely by the Rabbinical Court. Therefore, since both parties undertook in the agreement, and the Rabbinical Court also approved the agreement, the Rabbinical Court consequently has jurisdiction to hear and adjudicate the matter, and the Rabbinical Court awarded the judgement by virtue of its jurisdiction, and there was no need for the Rabbinical Court to adjudicate the same as arbitrator, and although the Rabbinical Court could also adjudicate the matter as an arbitrator, the Rabbinical Court also had jurisdiction to try the matter as an adjudicating court in accordance with the aforegoing".

6. The petitioner appealed to the Great Rabbinical Court against the Regional Rabbinical Court's judgement of May 27, 2002. Her main plea in the appeal was that the Regional Rabbinical Court did not have jurisdiction to adjudicate the respondent's suit, either as a competent court by virtue of the law or as an arbitrator, and its judgement is therefore void. As to the actual merits, she argued that the Regional Rabbinical Court had made an error "of judgement" and "disregarded facts" by not giving proper weight to the fact that it was the respondent who was in breach of the divorce agreement by not making the mortgage payments as he had undertaken in the divorce agreement. Consequently, on that ground too, on the merits of the case, the Regional Rabbinical Court's judgement should be vacated. The respondent also appealed to the Great Rabbinical Court against the said judgement.

The Great Rabbinical Court, in its decision of May 4, 2003, dismissed the petitioner's appeal with respect to jurisdiction and held that the interpretation of the divorce agreement indicated that it concerned the couple's agreement for "property in consideration for child support". That interpretation affects the substance of the complaint that the respondent filed to the Rabbinical Court, and it demonstrates that it is a suit to revoke the divorce agreement as opposed to a motion for the enforcement of an indemnity provision. That being the case, the Rabbinical Court had jurisdiction to adjudicate the respondent's motion by virtue of its original (primary) authority because "indemnification was not involved, but property and child support and the connection between them, and those matters of property division and child support are certainly matters of personal status that are governed by section 9 of the Rabbinical Courts Jurisdiction Law". The Rabbinical Court was also vested with original (primary) jurisdiction to adjudicate the suit in view of clause 11 of the divorce agreement, which provides that if differences arise between the petitioner and the respondent after the divorce, the two undertake to file the motion solely to the Rabbinical Courts. The Rabbinical Court mentions that at the hearing, the respondent also pleaded avoidance of the Get and the divorce because according to him the Get had been given by mistake. Consequently, on that ground too, the Rabbinical Court had original (primary) jurisdiction to adjudicate the claim. According to the Rabbinical Court, it also had jurisdiction by virtue of its "continuing" jurisdiction, because the respondent was "applying expressly for the revocation of the property arrangement as a result of a change in circumstances concerning child support". Finally, the Great Rabbinical Court held that the jurisdiction to adjudicate the respondent's suit was vested in the Regional Rabbinical Court, when "the jurisdiction is the essential jurisdiction vested in the Rabbinical Court, rather than jurisdiction by virtue of the Arbitration Law". The Great Rabbinical Court adjourned the deliberation on the appeal itself to a later date.

On June 9, 2003 the Great Rabbinical Court awarded another decision, this time with regard to the respondent's appeal against the Regional Rabbinical Court's judgement. In its decision, the Great Rabbinical Court ordered the matter to be remitted to the Regional Rabbinical Court for it to try the argument, which had not been tried in the Regional Rabbinical Court, that the petitioner had breached the divorce agreement by suing for increased child support in the Regional Rabbinical Court in 1993.

The Petition

7. In her petition before us, the petitioner seeks to set aside the decisions of the Great Rabbinical Court and the Regional Rabbinical Court, according to which the Rabbinical Court had jurisdiction to adjudicate the respondent's motion, both as original (primary) jurisdiction and by virtue of an arbitration clause.

This Court issued an order nisi in the petition.

The Parties' Arguments

8. The petitioner's essential argument in her petition herein is that the Rabbinical Court lacks jurisdiction to adjudicate the property dispute that has arisen between her and the respondent in respect of the divorce agreement that was made between them. According to her, the Rabbinical Courts are not vested with original (primary) jurisdiction to adjudicate the suit. Moreover, they do not have continuing jurisdiction to hear the respondent's suit. The respondent's motion to obtain one half of the property, which was transferred to the wife, is based on the cause of enforcing an indemnity provision in the divorce agreement. This cause is based on a plea of breach, if one occurred, after the divorce agreement was made and the judgement of the Rabbinical Court giving it force and effect was awarded, and after the couple had been duly divorced. A subsequent breach of the divorce agreement in respect of property after the parties' divorce cannot be bound in retrospect with the divorce agreement and the judgment that materialized in the past. From the divorce and onwards, motions that relate to the breach of the divorce agreement are not a part of matters of personal status. The Rabbinical Court therefore lacks jurisdiction to adjudicate them, and jurisdiction in respect of them is vested in the civil court. Moreover, it was argued that the respondent himself breached the divorce agreement by not paying the mortgage payments as he had undertaken to do in the divorce agreement. His breach of the agreement has civil-financial character, which also demonstrates that his suit after the divorce is subject to the jurisdiction of the civil, rather than religious, court. The petitioner further pleads that clause 11 of the divorce agreement does not amount to an arbitration clause and does not purport to establish an agreement for arbitration. Instead, its wording and contents merely demonstrate its determination, by agreement of the parties, to which court the couple's motions after the divorce should be filed. This agreement, per se, does not vest jurisdiction in the Rabbinical Court. In view of all of this, and based on other grounds too, upon which we shall not focus, the Rabbinical Courts' decisions on jurisdiction are void.

9. The respondent's position in his petition is that the Rabbinical Court is vested with jurisdiction to adjudicate the suit he filed to it. In this respect, he relies on the provision of the divorce agreement, according to which the parties expressly agreed to vest the Rabbinical Court with jurisdiction to try any future dispute between them concerning the agreement. He pleads that, according to case law, a matter that can be bound from the outset with the divorce suit, such as property matters, and it was agreed in the divorce arrangement to vest jurisdiction in the Rabbinical Court in respect to them, is also within its jurisdiction after the divorce. He further asserted that the meaning of the cause of the action that he filed was the revocation of a conditional undertaking given under the agreement, as opposed to the enforcement of a contractual indemnification arrangement. That is to say that the respondent entered into a conditional undertaking to transfer property to the petitioner in consideration for the child support being set in a binding amount and not being increased, and for motions not to be brought in this matter. Since that condition had not been fulfilled, the property undertaking that he had given is void. A contractual indemnification provision is not to be treated in the same way as a conditional property undertaking, with regard to which the Rabbinical Court has continuing jurisdiction even after the divorce. Alternatively, it is argued, the Rabbinical Court has jurisdiction to entertain the respondent's suit according to the law of arbitration, by virtue of clause 11 of the divorce agreement, which constitutes an arbitration agreement, even if the word "arbitration" is not mentioned in it.

Judgment

10. This Court's intervention in the decisions of religious courts is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal (sections 15(c) and (d)(4) of the Basic Law: the Judiciary; HCJ 323/81 Vilozni v. The Great Rabbinical Court, PD 36(2) 733; HCJ 1689/90 E'asi v. The Sharia Court, PD 45(5) 148, 154-155; HCJ 1842/92 Blaugrund v. The Great Rabbinical Court PD 46(3) 423, 438; HCJ 5182/93 Levy v. The Rehovot Regional Court PD 48(3) 1, 6-8).

The subject matter of the petition herein justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it for the reasons explained below.

The Question

11. The couple signed a divorce agreement containing property and child support arrangements. In the scope of the property arrangements, they agreed to limit and not increase child support. They added a condition according to which if motions to increase child support were filed by the wife, directly or indirectly, or if she took out stay of exit orders, these actions would have certain property consequences. The parties further agreed that if differences arose between the couple after the divorce, they undertook to conduct the claims solely in the Rabbinical Courts. Indeed, after the divorce, disputes did arise between the parties following motions to increase child support that were brought against the husband, and stay of exit orders were taken out. Further thereto, the husband filed a suit in the Rabbinical Court claiming a breach of the divorce agreement by the wife and requesting to receive one half of the property because of that breach. In those circumstances, after the couple's divorce, is the Rabbinical Court vested with jurisdiction to adjudicate the husband's property suit, which is based on an alleged breach of the divorce agreement by the wife? Or is the exclusive jurisdiction to deliberate and adjudicate that claim vested in the civil court?

The subsidiary questions that are to be decided can be divided into two:

First is whether the Rabbinical Court has jurisdiction by virtue of the law to adjudicate a property claim based on a breach of the divorce agreement after the divorce has been completed, by virtue of one of the following:

(a) Original-primary jurisdiction by virtue of statute to hear and adjudicate issues pertaining to the divorce;

(b) the Court's "ancillary" jurisdiction to adjudicate matters connected with the divorce after its completion, as interpreted and expanded by case law.

The Second is whether the Rabbinical Court has jurisdiction to decide a property claim based on the breach of a divorce agreement by virtue of the parties' agreement, and what legal significance is to be given to this agreement.

We shall consider these questions.

The Starting Point

12. The starting point underlying the analysis of the Rabbinical Court's scope of jurisdiction is based on several fundamental assumptions:

First, the Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom. As such a state judicial instance, the bounds of the Rabbinical Court's powers are defined and fashioned in accordance with the state law.

Second, every state judicial instance, including the religious court, has merely those jurisdictions that the state law has granted it; it is the statute that established it, and it is the one that defined its powers and assigned them to it. In doing so, the statute assumed, as part of the basic concept of democratic government, that in the granting of judicial powers also lay judicial limitations. Anything that has not been granted to the judicial instance is outside and beyond its power, and it must not surpass its acknowledged boundaries and into areas that have not been entrusted to it and go beyond its responsibility. That is the principle of legality that characterises the structure of democratic government, upon which rests the perception of the status of the government authorities, including the courts. It is on the basis of this principle that the realm of jurisdiction that is vested in the state judicial instances, of which the Rabbinical Courts form part, extends.

Third, the definition of the judicial powers of the various different courts, including the Rabbinical Courts, derives from statute, and statute is subject to interpretation by case law. The case law's interpretation of the extent of the powers vested in the judicial instance is intertwined with the provisions of the statute as the primary source of the power vested in the judicial instance, and it is intended to serve its purpose. In reviewing the boundaries of the religious court's power we shall therefore assume that the religious court is vested with the powers that have been granted to it by the statute, as they have been interpreted by case law, and it has only what the law has given it. As the Court stated (per Justice Landau) in HCJ 26/51 Menashe v. The Chairman and Members of the Rabbinical Court in Jerusalem, PD 5 714, 719:

"The Rabbinical Courts of our country exist in accordance with the general law, which determines their place in the state courts system, and the questions relating to the spheres of their jurisdiction should generally be resolved in accordance with the same principles as govern other courts".

This is what distinguishes Rabbinical Courts from arbitrators, internal tribunals and voluntary tribunals, which are not established by virtue of statute but mainly by virtue of contract or regulations, and the scope of their jurisdiction is determined pursuant thereto. These entities are essentially governed by the principles of the private law that creates them and they are not part of the country's state judicial system.

As Justice Zamir stated in HCJ 3269/95 Yosef Katz v. The Jerusalem Regional Rabbinical Court, PD 50(4) 590, 602:

"The Rabbinical Court is established by virtue of statute and its jurisdiction derives from the statute. Its budget comes from the State Treasury and its judges receive salaries like state employees; it sits in judgement beneath the symbol of the State and it writes its judgements on State paper; the orders that it issues speak in the name of the State and are enforced by the State. The Rabbinical Court is not a private entity but a state institution. It is therefore subject to public law and review by the High Court of Justice. Amongst other things, the Rabbinical Court is obliged to respect and observe the fundamental principle that governs every government agency, namely the principle of legality. According to that principle, the Rabbinical Court has nothing other than the power granted to it in accordance with the statute" (emphasis added).

In this respect Justice Cheshin stated in the Sima Levy Case (ibid, p. 616):

"The legal system takes a grave view of a judicial entity acting beyond the bounds set for it by the law; hence, the case law holds that a lack of subject matter jurisdiction plea stands out and the court will consider it at any stage of the litigation, even where a party first raises it on appeal".

(See also HCJ 816/98 Eminoff v. Eltalaff, PD 52(2) 769, 796-7; HCJ 512/81 The Hebrew University Archaeology Institute v. The Minister of Education, PD 35(4) 533, 543-4; HCJ 30/76, MF 150/76 Siho v. The Karaite Jewish Community Religious Court, PD 31(1) 15, 17-18.)

The state judicial system, and its various different courts, both civil and religious, is built on common norms that govern all its agencies. Thus, for example, it has been held in the past that the fundamental principles that govern civil judges also apply to rabbinical judges. The rabbinical judge, like the civil judge, is part of the judicial authority and in his position he is subject to the same basic rules as obligate any judicial officer:

"He is not an arbitrator between parties who voluntarily apply to him. He operates by virtue of state law and his authority extends over the whole public with all its diversity, opinions and views. Like a civil judge, a rabbinical judge enjoys independence in matters of judgement. The laws concerning conditions of service, immunity, appointment, discipline and the like that govern the rabbinical judge are very similar to those that govern a civil judge. Like the civil judge, so too the rabbinical judge must, by his action, ensure the public's trust in his judgement. The public is not only the religious public. The rabbinical judge deals with the whole people and he must by his conduct ensure the trust of the whole people, both secular and religious". (Per Justice Barak in HCJ 732/84 MK Tzaban v. The Minister of Religious Affairs, PD 40(4) 141, para. 16.)

In this context, case law has also drawn a clear distinction between a person's fitness as a rabbinical judge of the Israeli Rabbinical Court and his fitness as a community rabbi. On enactment of the Dayanim (rabbinical judges) Law a clear separation was created between judicial and rabbinic functions, and a mix between the two in judicial work is no longer consistent with the concept of state law. In the words of the Minister of Religious Affairs Warhaftig, when he presented the Dayanim Law draft on first reading in the Knesset, as cited in the Tzaban Case:

"With the establishment of the State of Israel we adopted this course. We distinguished between those functions and separated between rabbis and rabbinical judges" (Knesset Proceedings Session 5457, 1954, p. 2182).

As Justice Goldberg added on this subject in the Tzaban Case:

"The main power of the Rabbinate rests in its traditional authority over those who come 'to seek God', whilst the rabbinical judges' authority when sitting in judgement does not depend on the wishes of the litigants but is enforced in the context of the judicial system prescribed for it by the legislature. In this sphere, the rabbinical judges perform the function of 'judging the people', with its varied opinions and views".

The religious function of the rabbinical judge as rabbi is not intertwined with the judicial function that he performs as a rabbinical judge and is separate from it. The Rabbinical Court cannot therefore rely on its religious power in order to assume jurisdiction in a matter that exceeds its powers and authorities in accordance with state law (Schiffman, Family Law in Israel, 5755, Vol. I, p. 42).

Against this background there is difficulty with the argument that is sometimes made that the Rabbinical Court might perform a dual function: on the one hand, a state judicial function imposed upon it by virtue of state law, and on the other hand, a religious court in monetary matters by virtue of the parties' agreement. Like any public entity that performs a function in accordance with the law, so the Rabbinical Courts, which operate by virtue of statute must also discharge the responsibility owed by them by virtue of statute and decide the matters entrusted to them. As part of the state judicial system, they possess only the jurisdiction that the statute has placed in their hands. That is the essence of the principle of legality that underlies public administration and the judicial system (Katz Case, ibid, p. 607); hence, even if Jewish law and tradition permit a Rabbinical Court to adjudicate and decide disputes in a certain manner, that does not suffice to authorize it to do so because "the Rabbinical Court, as a state institution, must act within the authority vested in it by state law" (Katz Case, ibid, p. 607). To the same extent, a civil court, which is part of the judicial authority, may not assume an authority or function that does not derive from state law (Tzaban Case, ibid, p. 152).

It is against this background that we shall examine the question of the Rabbinical Court's jurisdiction to decide the respondent's property suit against the petitioner based on a breach of the divorce agreement, and the relief deriving therefrom. A comprehensive analysis of the issue of jurisdiction in a similar context can be found in the judgement of Justice Cheshin in the Sima Levy Case and it will guide and direct us.

The Rabbinical Court's Original – Primary Jurisdiction

13. The original primary powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built on two tiers: exclusive powers by virtue of the statute; and parallel powers of the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The exclusive powers comprise matters of marriage and divorce, as well as matters that are duly bound up in the motion for divorce, including wife and child support. Parallel jurisdiction that is vested by agreement relates to matters of personal status in accordance with article 51 of the Palestine Orders in Council and the Succession Ordinance. The relevant provisions are as follows:

"1. Jurisdiction in matters of marriage and divorce

Matters of marriage and divorce of Jews in Israel, nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.

…

3. Jurisdiction in matters incidental to divorce

Where a suit for divorce between Jews has been filed in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including support for the wife and for the children of the couple.

…

9. Jurisdiction by consent

In matters of personal status of Jews, as specified in article 51 of the Palestine Orders in Council, 1922 to 1947, or in the Succession Ordinance, in which a rabbinical court does not have exclusive jurisdiction under this Law, a rabbinical court shall have jurisdiction after all parties concerned have expressed their consent thereto."

The Rabbinical Court's powers – both the exclusive ones (marriage, divorce and matters bound with divorce) and the jurisdiction in accordance with the parties' agreement in matters of personal status – are original-primary powers by virtue of the statute to hear and rule on the matters that fall within the scope of those powers.

Power Ancillary to Original Jurisdiction

14. The Case law has recognized the existence of a judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the statute and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past. Such is, for example, the jurisdiction of the civil and religious courts to vacate a judgement awarded by them that is based on an agreement between the parties, in the making of which there has been a defect. Such a material defect might lead to the revocation of the agreement and therefore also to revocation of the judgment that rests upon it, and the instance empowered to decide its revocation is the one that rendered the judgment (HCJ 124/59 Glaubhardt v. The Haifa Regional Rabbinical Court, PD 13 1490; CA 151/87 Artzi Investment Co. v. Rachmani PD 43(3) 489, 498-500). Additional expression of such ancillary jurisdiction occurs when there is a material change in the circumstances of the matter, that has occurred after the award of judgement by consent, which makes its continued performance unjust (Sima Levy Case, ibid, pp. 605-6; CA 442/83 Kam v. Kam PD 38(1) 767, 771; CA 116/82 Livnat v. Tolidano PD 39(2) 729, 732; CA 219/87 Rachmani v. Shemesh Hadar, Building Company Ltd et al. PD 43(3) 489, 498-500). The recognition of this ancillary jurisdiction is intended to bring about a proper balance between the judgment’s finality on the one hand, and the interest not to leave in effect a judgment, the enforcement of which has become extremely unjust due to a change in circumstances. Inherent jurisdiction is also vested in the judicial instance, including the Rabbinical Court, to retain jurisdiction in respect of a matter that is pending before it until the proceedings have been completed. So long as final judgement has not been awarded, jurisdiction continues until the judicial court has completed its work. Once a final, unconditional judgment has been awarded, the work is completed (Sima Levy Case, p. 607; CA 420/54 Ariel v. Leibovitz PD 9 1337; ALA 2919/01 Daniel Oshrovitz v. Yael Lipa (Fried) PD 55(5) 592; J. Zussman, The Civil Procedure (seventh edition, 5755) 550).

One of the expressions of ancillary jurisdiction relates to the existence of the Rabbinical Court's "continuing jurisdiction", the essence of which is that, under certain conditions, where the Rabbinical Court has in the past heard a particular matter, its continuing jurisdiction to hear it again will be recognized. The continuing jurisdiction also derives from the inherent power of the judicial instance. Its basic purpose is to give expression to the duty of mutual respect and the need for harmony between judicial instances where there is parallel jurisdiction between them, and in order to avoid parties running from one judicial instance to another. It has nevertheless already been explained that continuing jurisdiction is not intended to undermine or derogate from the original powers vested in the judicial instances in accordance with statute. Its purpose is essentially "to vest power to vacate or modify an earlier decision due to a change that has occurred in the circumstances upon which the first decision was based" (per Justice Cheshin in the Sima Levy Case, ibid, p. 608, 610). Such are matters of child support and custody, which by their nature are subject to material changes of circumstance, and the original judicial instance therefore has inherent jurisdiction to reconsider them when the appropriate conditions arise.

It should be made clear that no inherent power has been recognized for a civil or religious court to exercise its original authority again in order to interpret a judgement awarded by it. Hence, a Rabbinical Court that has granted a divorce does not have inherent jurisdiction to interpret the divorce agreement and the judgement that awarded it force and effect (Sima Levy Case, ibid, pp. 612-13).

These are the characteristics of the original jurisdiction that is vested in the Rabbinical Court in accordance with the statute, alongside its ancillary powers that are sparingly exercised in special circumstances by virtue of its inherent jurisdiction, in order to complete the judicial act and make it a complete and just deed.

We shall now examine the question of whether the Rabbinical Court has jurisdiction to adjudicate a dispute by virtue of the parties' agreement, where such jurisdiction is not set in the statute empowering the Rabbinical Courts, and is not within the scope of the ancillary jurisdiction vested in it.

The Rabbinical Court's Jurisdiction by Virtue of the Parties' Agreement

15. The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement to grant the Court jurisdiction in a particular case, regardless of the provisions the Rabbinical Courts Jurisdiction Law; second, agreement intended to empower the Court to hear and rule on a dispute as an arbitrator. Can such agreement by the parties vest power in the Court that is not granted to it by the empowering statute or embodied in its ancillary powers?

The Israeli state judicial system and the various different judicial instances, derive their powers from statute. It is the statute that establishes them, it is what delineates the bounds of their activity and it is what defines the sphere of their subject matter and territorial jurisdiction. This is also the case in respect to the civil judicial instances; and so it is with respect to the special judicial systems, including the courts of Israel's different religious communities. These include the Rabbinical Courts in Israel.

By defining the powers of the various different judicial instances in Israel, the statute intended not only to delineate the function and responsibility of the system and its various different arms. It also sought, at the same time, to deny the power of a judicial instance to hear and adjudicate a matter which it was not charged with by the statute and which is not within its inherent jurisdiction. The definition of the judicial instances' powers has a dual dimension, both positive and negative: it constitutes a source of power and responsibility on the one hand, while denying the exercise of authority and power that have not been so conferred; the judicial instance has only what the statute that established it has vested in it, and insofar as it has been made responsible to adjudicate disputes within the scope of the power vested in it, it is under a duty that derives from the statute and the concept of democratic government not to try or adjudicate a matter that is beyond its statutory power.

A preliminary and mandatory condition for the satisfactory activity of any judicial system is a clear and exhaustive definition of the framework of powers and the apportionment of functions that rest with its various different instances. Without an exhaustive and specific definition of powers the systemic structure, built in accordance with the statute, is blurred and the stability of its functioning is not secured. The harmony necessary in the area of operation of the different judicial arms and the relationship between them is impaired; the allocation of professional, administrative and budgetary resources to the different instances is disrupted, and direct harm might occur to the efficacy of the judicial system and the level of judicial performance. The uniqueness of the responsibility owed by the judge, which requires the existence of a clear framework of authority, alongside which is the responsibility and duty to rule, becomes blurry. Thus, recognizing the power of a judicial instance to adjudicate matters, the power and responsibility for which have not been legally transferred to it, might materially disrupt the internal balance required in the structure of the judicial system and severely undermine its standing and performance.

A consequence of the aforegoing is that the power of a judicial instance, as such, be it civil or religious, is acquired by law and it has no power to be derived from the parties' agreement, except where the statute itself has seen fit to recognize such agreement in certain circumstances as a source of the power to adjudicate. Thus, for example, with regard to the effect of the parties' agreement, the law has distinguished between the apportionment of subject matter jurisdiction and territorial jurisdiction between judicial instances. It is willing to acknowledge, in certain conditions, the parties' agreement as a valid source for changing the territorial jurisdiction that has been prescribed. Section 5 of the Civil Procedure Regulations, 5744-1984 provides that when an agreement between parties as to the place of jurisdiction exists, the lawsuit will be filed to the court in that area of jurisdiction. The relative flexibility regarding territorial jurisdiction, and the willingness to recognize the parties' agreement as the source of such jurisdiction, stems solely from the statute and derives its power from its provisions. That is not the case in respect of subject matter jurisdiction. Generally, the law does not recognize that the parties' agreement has power to depart from the rules of subject matter jurisdiction, as crafted by state legislation.

A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to hear and rule a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. In general, a judicial instance is not supposed to adjudicate a matter that is referred to it as arbitrator. However, in certain circumstances, the law has expressly recognized the power of a civil instance to adjudicate a dispute in departure from the ordinary rules of procedure. Thus, for example, in the area of small claims, section 65 of the Courts Law (Consolidated Version), 5744-1984 provides that if a lawsuit has been filed in the small claims court, the judge may, with the parties’ consent, try the claim as arbitrator, and the provisions of the Arbitration Law will govern the matter, with certain restrictions; in addition, a court hearing a civil matter has been empowered, with the parties’ consent, to decide a matter before it by way of settlement (section 79A of the Courts Law) or to refer a matter, with the parties' consent, to arbitration or conciliation (sections 79B and 79C of the Courts Law). The said authorities are all vested in the court by virtue of statute. They assume that the subject of the dispute is within the subject matter jurisdiction of the court hearing the case and they give it special procedural means that are intended to facilitate and expedite the process of deciding the dispute and bringing about a just result. The various judicial instances have not been generally empowered by law to hear and decide matters that are not included in the scope of their subject matter jurisdiction by virtue of the parties' agreement, either as arbitrators or otherwise. Since such authority has not been conferred to them, it is, ipso facto, denied and does not exist.

The Rabbinical Courts are an integral part of the Israeli judicial system. They were established by virtue of the Rabbinical Courts Jurisdiction Law and they derive their power and authorities from the state statute. They have nothing other than what is vested in them by the statute, and they are subject to the set of powers of the statute in their judicial work, as interpreted over the years by case law. Along those lines, this Court has held in the Katz Case that the Rabbinical Court is not empowered to issue a Letter of Refusal in monetary matters that is intended to compel a party to submit to the Rabbinical Court's jurisdiction by ostracizing and disgracing the recalcitrant party; and in HCJ 2222/99 Gabai v The Great Rabbinical Court PD 54(5) 401, the opinion was expressed that the Rabbinical Court lacks legal authority to issue a forced settlement decision, without the parties' consent, thus forcing a judgment on the parties without determining facts on the basis of evidence, if it is unable to decide in accordance with the law.

It emerges from this that the parties' agreement as such cannot, per se, grant jurisdiction to the Rabbinical Court, unless, it has been recognized by the law as a primary source of authority. Thus, the parties' agreement has been recognized as a source of the Rabbinical Court's jurisdiction pursuant to section 9 the Rabbinical Courts Jurisdiction Law, in matters of personal status of Jews pursuant to article 51 of the Palestine Orders in Council or according to the Succession Ordinance, which are within the parallel jurisdiction of the Rabbinical Court and the civil instance. Nevertheless, the Rabbinical Court does not have power to hear and decide a matter that is not of the kind found within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their consent to its jurisdiction. Such agreement does not derive from a legally recognized source of authority in the law and it cannot, per se, vest jurisdiction in a state judicial instance.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Agreement

16. According to the same line of reasoning, the Rabbinical Court has no power and authority to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter, which by its nature is not within its legal jurisdiction. The Court has not been vested with jurisdiction by law to decide disputes as an arbitrator and the parties' agreement cannot vest it with such power.

The issue of the Rabbinical Court's jurisdiction to arbitrate financial and other matters that go beyond the powers granted to it in accordance with the Rabbinical Courts Jurisdiction Law has caused consternation and confusion over the years. It appears that, in reality, the Rabbinical Court assumes the role of arbitrating matters that are beyond the scope of its subject matter jurisdiction (Katz Case, ibid, pp. 606-8; CA 376/62 Bachar v. Bachar, PD 17(2) 881, 882, 885; CA 688/70 Doar v. Hamami, PD 25(2) 396, 399; M. Alon, Jewish Law – History, Sources and Principles, third edition, vol. III, 5748, 1529). Justice Barak considered the inherent difficulty of a state judicial instance's need to adjudicate a dispute by arbitration where it was not empowered to do so by law, saying:

"The first possible argument is that the motion to the Rabbinical Court is like that to an arbitrator and embodied in the Arbitration Law, 5728-1968. That possibility – which has used in practice and can be encored as a year-long custom - raises serious problems in principle. Thus, for example, it can be asked whether it is proper for a judicial entity, whose powers are prescribed by law, to assume additional judicial powers, by being empowered as an arbitrator. Is it conceivable that parties would motion the magistrate’s court to try a pecuniary claim, that is outside its jurisdiction, as an arbitrator? From the state's point of view, is it justifiable to use judicial time and tools (whether of the civil or religious courts) for matters outside the jurisdiction that the law has granted the judicial authorities? Is there no fear that the public be confused as to which decisions the judicial instance has awarded as the government and those that it has awarded as arbitrator?"

(HCJ 3023/90 Jane Doe (a minor) v. The Rehovot Regional Rabbinical Court PD 45(3) 808, 813-14; see also S. Ottolenghi, Arbitration, Law and Procedure (fourth edition, 5765) 167-8; Schiffman, ibid, vol. I, 37.)

In HCJ 2174/24 Kahati v. The Great Rabbinical Court, PD 50(2) 214, this Court (per Justice Dorner) once again referred to the practice, adopted from time to time by the Rabbinical Courts, of deciding disputes as arbitrators in matters that are not within their jurisdiction. It expressed skepticism with respect to the validity of the practice. However, as in the previous case, it again left this question open without making any conclusive ruling, since such a ruling was not necessary in that case (cf. Aminoff, ibid, pp. 792-3).

17. There is indeed an inherent difficulty in recognizing the Rabbinical Court's power to decide a dispute in a matter on which it has not been given jurisdiction by law (cf. Ottolenghi, Dispute Resolution by Alternative Means, Israeli Law Yearbook, 5752-5753, p. 535, 550-1). In the past, the Mandate government empowered the Rabbinical Courts to act as arbitrators by means of section 10(d) of the Israel Knesset Regulations of 1927, but upon the establishment of the State, the “Israel Knesset”, within its meaning under the Mandate, ceased to exist and it was held that those Regulations no longer had any force or effect (Crim. App. 427/64 Yair v. The State of Israel PD 19(3) 402; HCJ 3269/95, ibid, p. 622-3; Schiffman, ibid, p. 39). It cannot therefore be argued that the said section might serve as the source of the Rabbinical Courts' power as arbitrators. Moreover, upon enactment of the Arbitration Law, it was proposed that an arbitration decision made by a religious court when ruling as an arbitrator would in all respects, except with regard to the appeal, be treated as a judgement of the court sitting in accordance with its jurisdiction prescribed by statute, and that the award would not require confirmation under the Arbitration Law. That proposal was not accepted (Knesset Proceedings 5728, pp. 2966-7).

It is indeed difficult to settle the governing perception that views the judicial system as an arm of government, which derives its power and authority from statute, while acknowledging the possibility that the selfsame system can acquire other subject matter authorities deriving merely from the parties' agreement that do not originate from the empowering law. The Israeli Rabbinical Courts, that are part of the Israeli judicial system, integrate with the said perception and, like the other judicial instances, operate in accordance with the principle of legality of the arms of government (see the dissenting opinion of Justice Tal in the Katz Case, distinguishing between the power of religious courts as a state authority and the power they have, in his opinion, by virtue of Jewish law, which is not connected with state law).

18. Apart from the essential difficulty inherent in the judicial decision of the Rabbinical Court as an arbitrator, which is not consistent with the principle of legality of the government authorities, other difficulties arise from the said procedural practice. The practice blurs the spheres of the Court's own activity in respect of the procedural basis upon which its decision rests: is it a decision within the scope of the Court's state power that is subject to review by the High Court of Justice in accordance with section 15 of the Basic Law: the Judiciary, or is it an extra-statutory power that is built on a different foundation originating from the parties' agreement and subject to review by a different judicial instance, like the District Court, in accordance with the Arbitration Law (cf. Jane Doe Case, ibid, para. 7)? In more than a few cases the parties might misunderstand the nature of their agreement to vest jurisdiction in the Rabbinical Court as they do not always understand the meaning and implications of their consent. Moreover, usually, in the course of such adjudication, strict attention is not paid to enquiring into the existence of an arbitration agreement or the application of the Arbitration Law and the rules pursuant thereto, such, for example, the mechanism for the confirmation and revocation of an arbitral award and the role of the District Court as the competent instance in accordance with the Arbitration Law (Ottolenghi, ibid, p. 168; Dichovski, The Standing of a Rabbinical Court Dealing with Property Law As Arbitrator, The Jewish Law Yearbook 16-17 (5750-5751) 527; MF 268/88 Delrahim v. Delrahim, DCJ 49(3) 428; SC 2329/99 Kfir v. Kfir, PD 55(2) 518, para. 5). An arbitral judgment made by the Rabbinical Court frequently does not undergo confirmation or revocation proceedings in the District Court as required by the Arbitration Law for the purpose of its execution, and the Rabbinical Court has no power to confirm an arbitral judgment (Kahati, ibid, p. 220; HCJ 5289/00 Mograbi v. The Great Rabbinical Court, Takdin Elyon 2000(2) 581; Kfir Case, ibid, para. 5). Furthermore, a situation in which the District Court, by virtue of the Arbitration Law, might oversee the Rabbinical Court's decisions as an arbitrator might harm the proper balance between the instances and aggravate the tension between the civil and religious judicial arms (A. Porat, The Rabbinical Court As Arbitrator, Kiriat Mishpat II (5762) 503, 521-4; Dichovski Case, ibid, p. 529).

The Rabbinical Court, purporting to act as an arbitrator between the parties, still operates under cover, and with the characteristics, of its state role. To that end it makes use of the court's physical and organizational system, which is financed by the state; it adjudicates disputes as an arbitrator in the scope of the court calendar, as part of its ordinary work; the overall services, the organizational and professional arrangement and the government budget are also used by it in that function, which by its nature does not have a state character. The time that it should devote to matters of personal status in its official capacity is partly assigned by it to a different judicial function that is not for the state, despite appearing to carry the state seal in the eyes of the public at large, who finds it difficult to distinguish between the judicial function and the extra-statutory function performed by the Court. This intermingling of functions is inconsistent with the principle of legality and a correct definition of the functions and powers of a state judicial instance (Katz Case, ibid, p. 608; Schiffman, ibid, pp. 37-8).

19. Mention ought to be made to the approach of Prof. Shochatman in his paper entitled The Rabbinical Courts' Jurisdiction in Matters Other Than Personal Status (Bar Ilan University Yearbook on Humanities and Judaism, vols. 28-29 (5761) p. 437, p. 449 et seq.). As he sees it, the Rabbinical Court might acquire jurisdiction by virtue of the parties' agreement in matters outside its jurisdiction in accordance with the Rabbinical Courts Jurisdiction Law by virtue of section 15(d)(4) of the Basic Law: the Judiciary, thereby acquiring jurisdiction as an arbitrator. According to that Law, which defines the High Court of Justice's power to review religious courts, the question of a religious court's jurisdiction can only be referred to this instance when it was raised at the first opportunity. The author infers from this that where there is prior agreement between the parties to vest subject matter jurisdiction in the religious court, a party who has so agreed may not later dispute jurisdiction. By virtue of that preclusion the religious court acquires subject matter jurisdiction, and the High Court of Justice is itself precluded from intervening therein. According to this approach, such an agreement vests subject matter jurisdiction and is not limited solely to matters of personal status. It might encompass numerous spheres that are beyond the subject matter jurisdiction of the religious court, as defined in the Rabbinical Courts Jurisdiction Law.

I cannot agree with this position. The interpretation expressed by Prof. Shochatman assumes that it is possible to recognize the existence of subject matter jurisdiction of an Israel state judicial instance by means of the parties' consent, combined with the doctrine of preclusion and estoppel that prevents someone who has agreed to jurisdiction from later disputing it. That approach is fundamentally inconsistent with the principle of legality that obligates judicial instances, including the religious courts. It is not consistent with the starting point whereby subject matter jurisdiction is vested in a judicial instance by a positive arrangement, and its existence is not to be inferred by an indirect interpretation of provisions of law concerning estoppel and preclusion. The Rabbinical Court's powers are granted to it by virtue of the Rabbinical Courts Jurisdiction Law and they cannot be added to by an indirect interpretation of statutory provisions, the purpose of which is not the vesting of power. Moreover, it has already been held (in Sima Levy Case, ibid, p. 618-19) that the element of preclusion emerging from section 15(d)(4) of the Basic Law: the Judiciary was not intended to vest in the Rabbinical Court subject matter jurisdiction that is not vested in it by virtue of the Rabbinical Courts Jurisdiction Law. The said preclusion is based on the assumption that the matter being adjudicated by the Rabbinical Court is of the type that are within the parallel jurisdiction of the civil court and Rabbinical Court, and regarding the latter, jurisdiction is conclusively consummated if both parties have agreed to it. In those circumstances, and only in them, a party's prior agreement or silence, or subsequent denial of jurisdiction, might lead to preclusion with respect to a lack of jurisdiction argument in the High Court of Justice - that and nothing more. An interpretation that takes the doctrine of preclusion out of context, and assumes the existence of a potentially unlimited Rabbinical Court subject matter jurisdiction, the final consummation of which is dependent only upon the parties' agreement, is directly opposed to the principle of legality, upon which the concept of democratic government is based. It is inconsistent with the subject matter jurisdictions vested by statute in the arms of government, including the judicial system.

Alternative Decision-Making Systems

20. The need of various different circles in the religious world to entertain alternative systems for the resolution of disputes is proper and recognized. Indeed, alternative rabbinical judicial systems that are not associated with the state rabbinical judicial system, which decide disputes between litigants in the community, are recognized. They can be granted powers to act as arbitrators by agreement of the parties. The need of different communities for alternative dispute resolution systems specific to them can be met by reference to internal arbitration frameworks that are not part of the state judicial system, within which disputes can be settled by virtue of the parties' agreement. This alternative course to litigation in the state judicial instances can be developed and strengthened in accordance with the different needs and preferences of the communities. This was considered by Justice Zamir in the Katz Case (ibid, p. 606), who stated:

"As is known, there are still observant Jews who prefer to litigate in matters of property according to religious law before a religious court rather than the state court. The state's law does not preclude that, if both parties to the dispute so desire, and it is even willing to give the force of arbitration to such litigation, if the litigants fulfil the provisions of the Arbitration Law. Indeed, in practice, such courts exist in various communities around Israel, not by virtue of state law or as official institutions but as private entities. That is, for example, the case of the rabbinical court of the Edah Chareidis [the Haredi Community] in Jerusalem. However… in these cases we are not dealing with a private entity but a state court, and the law applies to it just as any other of the state's courts. Like any court, in fact, like any government agency, the Rabbinical Court is also subject to the principle of legality, meaning that it has nothing other than what was granted to it by the law… In this respect, the Rabbinical Court in Jerusalem is distinguished from the rabbinical court of the Edah Chareidis in Jerusalem. The Israeli Rabbinical Court, which has jurisdiction in accordance with the Basic Law: the Judiciary, is not like one of the rabbinical courts of the Jewish communities in the Diaspora. Unlike them, it has the power and authority of a government institution. So too, unlike them, it is also subject to the restrictions that apply to any government institution".

Consensual Resolution – Looking to the Future and to the Past

21. The scope of the Rabbinical Courts' subject matter jurisdiction to decide a dispute by virtue of the parties' agreement outside the framework of the law looks to the past and the future. It calls into question the validity of the Court's rulings based on the parties' agreement outside the scope of the statute, not merely henceforth, looking to the future, but also with respect to the past. The outlook to the future seeks to find a binding definition of the limits of the Rabbinical Court's jurisdiction and to strictly observe those limits hereafter. However, the outlook to the past calls into question the binding legal validity of the Rabbinical Court's decisions that have been made over the years by virtue of the parties' agreement as aforesaid. That issue is far from simple; there is no need to decide it here, and it will wait until its time comes.

From the General to the Particular

22. Let us return to the respondent's suit against the petitioner in the Rabbinical Court and examine whether it is within the subject matter jurisdiction of the Rabbinical Court; the test of jurisdiction depends on the nature of the cause of action, and whether the cause falls within the jurisdiction of the Rabbinical Court.

The Cause of Action – Enforcement of a Contractual Indemnity Clause

23. The respondent's cause of action in the Rabbinical Court is the enforcement of a contractual clause concerning property, which is contained in the divorce agreement that was made between the couple for the purpose of the divorce proceedings. It provided that if the respondent were sued for an increase in child support and the satisfaction of any of the children's needs or if a stay of exit order was granted at the initiative of the wife, then the petitioner would compensate him, in the language of clause 4(e) of the agreement, with half the property. That provision is also mentioned in clause 5 of the agreement, which is headed "Indemnification", and according to the substance of the provision, and also its location and wording, it is an indemnity clause. The respondent sues for the enforcement of a property condition for his indemnification due to a breach of contract by the wife, and he gave expression thereto by heading his claim as one for "specific performance". That is to say, we have here a property claim for the enforcement of the contractual indemnity clause in a divorce agreement that received the effect of a judgement of the Rabbinical Court and further to which the parties' divorce was completed.

The Rabbinical Court's Jurisdiction to Adjudicate a Property Claim for the Breach of a Contractual Indemnity Clause in a Divorce Agreement after the Parties' Divorce

Does the respondent's suit, according to its cause, fall within the scope of one of the sources of the Rabbinical Court's jurisdiction? Because of the great similarity between the instant matter and the case of Sima Levy, we shall draw guidance and direction from that case.

Original – Primary Jurisdiction

24. The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce, as provided in section 1 of the Rabbinical Courts Jurisdiction Law, does not apply in the instant case because the subject of the suit is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is, no longer involved. Nor is it a matter "connected with a divorce suit", including support for the wife and children, within the meaning of section 3 of the Law. After divorce, a property claim in respect of the breach of an indemnity clause is not connected with the divorce suit, which has ended and no longer exists. The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce judgment, based on a divorce agreement. The cause is based on the breach of a divorce agreement after the award of the divorce and completion of the couple's divorce, and such a new cause is naturally not to be bound up with the matters that were in the past connected with the divorce suit.

With regard to the property cause of action, which surrounds the breach of an indemnity clause of a divorce agreement, the Rabbinical Court does not have jurisdiction by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council and the Succession Ordinance. Section 9 of the Rabbinical Courts Jurisdiction Law raises the question of whether jurisdiction can be vested in the Rabbinical Court by consent in a matter included in its parallel jurisdiction after completion of the divorce, or whether its jurisdiction pursuant to that provision is limited solely to matters within its parallel subject matter jurisdiction that arise in connection with, and until, the divorce and its completion, but not afterwards. Whatever the answer to this question, it is in any event clear that the subject matter jurisdiction pursuant to section 9 is limited solely to the matters mentioned therein, that is, matters of "personal status" as defined in the Palestine Orders in Council and the Succession Ordinance. In a dispute that is not within the bounds of those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court (Schiffman, ibid, vol. I, p. 37; Jane Doe Case, ibid, p. 812). The power of the parties' stipulation is restricted solely to the matters defined by the statute (MF 358/89 Zalotti v. Zalotti PD 43(4) 41, 42; Porat, ibid, p. 510).

Clause 11 of the divorce agreement in this matter looks to the future, and provides that if differences arise between the couple after the divorce, then they undertake to bring their claims solely in the Rabbinical Courts. That agreement is effective only to vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law in respect of matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. A property claim for the enforcement of a contractual indemnity clause in a divorce agreement is not a matter of personal status within the meaning of the Palestine Orders in Council or the Succession Ordinance, and thus, the parties' contractual agreement in respect of such a dispute cannot vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law.

The Rabbinical Court therefore does not have original jurisdiction to adjudicate the respondent's claim.

"Ancillary" Inherent Jurisdiction

25. Does the Rabbinical Court have "ancillary" inherent jurisdiction to adjudicate the respondent's claim? The answer is in the negative.

In the instant case, the Rabbinical Court's ancillary jurisdiction is irrelevant insofar as it relates to the revocation of a divorce award because of a defect in the making of the divorce agreement. It is not a defect of fraud, mistake, deceit, duress or similar that occurred in the making of the agreement and that might have given the Rabbinical Court ancillary jurisdiction to consider its revocation.

Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after granting the divorce judgment that allegedly justifies revoking the divorce agreement and the divorce judgment in order to achieve a just result. On the contrary, the respondent's suit is for the specific performance and enforcement of the divorce agreement, not its revocation. Although, in the Great Rabbinical Court, the respondent pleaded that his suit was to revoke the divorce agreement because, according to him, the Get had been given by mistake (the Great Rabbinical Court's decision of May 4, 2003). These arguments were made as an "embellishment" at a late stage of the trial and do not reflect the real cause of action; the motion to revoke the divorce agreement and the act of divorce is inconsistent with the respondent's claim in his suit to compensate him with half the property (the apartment, the contents and the gold), which is nothing other than a claim for the enforcement of the divorce agreement (cf. CA 105/83 Menashe v. Menashe PD 38(4) 635; Yadin, The Contracts (Remedies for Breach of Contract) Law 5731-1970, Second Edition, 5739, p. 44).

Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction in this case. The Regional Rabbinical Court had granted a final and unconditional judgment and awarded the effect of judgement to the divorce agreement. Indeed, the divorce agreement does contain an indemnification provision, which by its nature looks to the future, but this fact cannot transform a judgement that gave effect to a divorce agreement into a judgment that is not final, leaving the Rabbinical Court with jurisdiction that has not yet been exhausted to continue adjudicating with respect to the divorce agreement's future performance in this property matter. A financial-property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law (see Sima Levy Case, pp. 607-608; CA 468/85 Dondushanski v. Don PD 40(2) 609; D. Bar Ofir, Execution - Proceedings and Law (Sixth Edition, 2005, pp. 164-5)).

Nor has the Rabbinical Court acquired jurisdiction to hear this matter by virtue of the doctrine of "continuing jurisdiction". It should be kept in mind, that continuing jurisdiction is vested where an instance has tried a particular matter in the past and, in special circumstances, a need has arisen to vacate or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based such, for example, in matters of child support and custody. The instant case is fundamentally different. The motion does not seek to modify or revoke the divorce agreement made between the parties. On the contrary, it seeks to enforce the agreement, and such a claim has no place within the continuing jurisdiction vested in the Rabbinical Court. A decision on property matters is a final one and not a matter for continuing jurisdiction, as the Court stated in Sima Levy (Justice Cheshin, ibid, p. 611):

"As distinct from decisions concerning the payment of support or child custody – which by their nature are not final and the doctrine of continuing jurisdiction applies to them – a decision on a property matter is in principle a final one" (emphasis added).

The property aspect of the divorce agreement, including the indemnification clause, and the divorce judgment that gave it effect, are therefore not within the Rabbinical Court's continuing jurisdiction.

And finally, the Rabbinical Court does not have ancillary jurisdiction to adjudicate the new cause that arose following the divorce agreement in order to interpret the agreement. Firstly, the Rabbinical Court, having completed and exhausted its power to rule on the matter of divorce, no longer has ancillary power to interpret the divorce agreement or the divorce judgment (cf. HCJ 897/78 Yigal v. The National Labour Court, PD 33(2) 6, 7; CA 5403/90 The State of Israel v. RAM Revhiat Ibrahim PD 46(3) 459). Moreover, in the instant case, the question of the agreement’s interpretation hasn’t risen as such, but a claim for its enforcement has been brought instead. Hence, the Rabbinical Court does not have ancillary jurisdiction in this respect either.

In conclusion: the Rabbinical Court does not have primary original jurisdiction, or ancillary inherent jurisdiction, to adjudicate a property claim for enforcement of a contractual indemnification clause in a divorce agreement that has given the effect of judgement, once the couple's divorce has been completed.

The Rabbinical Court's Jurisdiction by Virtue of Consent

26. As can be recalled, clause 11 of the divorce agreement provides that differences between the couple after the divorce are to be adjudicated solely in the Rabbinical Courts. The couple's agreement as such cannot vest the Rabbinical Court with jurisdiction where there is no legal source for it. The agreement in this case concerns something that is not a matter of personal status according to section 9 of the Rabbinical Courts Jurisdiction Law, and it was therefore given for this purpose outside the scope of the law, and is ineffective.

Indeed,

"where the subject of the litigation is not within the jurisdiction of a particular judicial entity, no agreement in the world has power to grant the entity jurisdiction that the statute has not given it; it is the statute that gives and it is the statute that takes away" (Sima Levy, p. 617).

The Regional Rabbinical Court's decision of June 18, 2002 and the Great Rabbinical Court's decision of May 4, 2003, according to which the Rabbinical Courts have jurisdiction in principle to try the claim by virtue of the law, are inconsistent with its provisions.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Arrangement

27. It was further argued that clause 11 of the divorce agreement is an arbitration provision that vests the Rabbinical Court with power as an arbitrator to adjudicate the respondent's claim of a breach of the agreement's indemnification provision. Although not strictly necessary, we have considered the question in principle of whether a Rabbinical Court can be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. We have answered that question in the negative and the answer is applicable to the case herein.

In the instant case, the conclusion that the Rabbinical Court lacks jurisdiction to try the matter as an arbitrator is also reinforced by another reason. Studying the contents of clause 11 of the divorce agreement shows that it cannot be construed as an arbitration clause, equal to an "arbitration agreement" between the parties. It is well known that the power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. Without an arbitration agreement, no arbitration arises. An "arbitration agreement", according to the Arbitration Law, is "a written agreement (between parties) to refer to arbitration a dispute that arises between them in the future, whether an arbitrator is named in the agreement or not" (section 1 of the Arbitration Law). The condition precedent for arbitration is therefore the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement (ALA 4928/92 Aziz Ezra Haj v. Tel Mond Local Council PD 47(5) 94; Ottolenghi, ibid, pp 9-41).

In this case, the parties undertook to refer any disputes arising between them after the divorce solely to the Rabbinical Courts. No intention can be inferred from that agreement to refer such disputes to the Rabbinical Court qua arbitrator. In Jane Doe (para. 6 of Justice Barak's opinion), as in the case herein, the couple mistakenly believed that their consent to the Rabbinical Court's adjudicating disputes connected with the divorce agreement could vest it with power to decide as a state judicial instance, rather than as an arbitrator. Indeed, the wording and contents of clause 11 of the divorce agreement do not demonstrate the parties' intention to treat it as an arbitration clause purporting to empower the Rabbinical Court to act as arbitrator. Consequently, even if we assumed that the Rabbinical Court could be empowered to act as an arbitrator in matters in which it has no original or ancillary jurisdiction by virtue of the law, there is still no effective arbitration agreement, as pleaded.

A Note before Closing

28. The issue of the Rabbinical Court's power to adjudicate by virtue of the parties' agreement, outside the scope of the law, has arisen in earlier contexts in the past, and although different opinions have been expressed in such respect by the courts, no binding decision has been necessary in connection therewith. This absence of a ruling has permitted the continuation of a procedural practice that is inconsistent with the organizational structure of the courts and the division of powers between them in accordance with state law. This custom has enabled a judicial practice that is inconsistent with the principle of the administration's legality and the legality of the judicial system. The time has come to move from the stage of expressing an opinion to the stage of making a ruling, which is necessary to ensure the proper function of the judicial system within the scope of its powers, and thereby to protect the basic foundation that defines the boundaries of its activity based on the principle of legality and the rule of law. This will not harm, in a any way, the need and ability of various social groups to entertain alternative resolution systems outside the state judicial instances, based on the principles of arbitration regulated by law or on the basis of other agreed and recognized rules of procedure. However, at the same time, it is necessary to safeguard, and protect against blurring the boundaries between the state judicial systems and alternative resolution systems that are built on the parties' agreement, in order to protect the proper operation of the different arms of the judicial system and the public's confidence in the way in which its powers are exercised and its judgments.

Conclusion

29. By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification clause in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the Regional Rabbinical Court and the Great Rabbinical Court in the respondent's claim are void. The result is that the order nisi that has been awarded should be made absolute. The respondent shall bear the petitioner's professional fees in the sum of NIS 12,000.

Vice President (Ret.) M. Cheshin

I concur.

Justice S. Joubran

I concur.

Therefore, held as stated in the opinion of Justice Procaccia.

Awarded today, this eighth day of Nissan, 5766 (April 6, 2006).

___________________	___________________	___________________
Vice President (Ret.)	Justice	Justice

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/03/380/086/R08/03086380.r08.pdf

Doe Co., Ltd v. Doe

Case/docket number:

CrimApp 8225/12

Date Decided:

Sunday, February 24, 2013

Decision Type:

Appellate

Topics:

Freedom of Expression

Right to Privacy

Courts

Publicizing proceedings

Evidence

http://elyon1.court.gov.il/files/12/250/082/m03/12082250.m03.pdf

Defamation

Abstract:

The Supreme Court (Justice Vogelman, Justices Hayut and Amit, concurring) granted leave to appeal, upheld the appeal and ruled as follows.

The Court considered the proceedings on the premise that the provisions of section 70(e1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter – the “Act”), which refers to a “suspect” as defined in section 70(e2) of the Act “as someone against whom a criminal investigation has been commenced” applies; the Court held that the appeal in Crim.App. 8225/12 was filed absent a right to appeal, but did not decide the issue of that right, since the Applicant filed an application for leave to appeal, justifying hearing the application as though it were an appeal.

The Court noted that the issue of a gag order prohibiting the publication of identifying details of a person suspected of committing a criminal offence calls for balancing the rule that derives from the paramount principle of public proceedings and one’s right to dignity, a good reputation and privacy. The principle of public proceedings and the public’s right to know are the rule, and under extreme circumstances they will yield to the need to protect a suspect’s reputation and privacy. One such circumstance is detailed in section 70(e1)(1) of the Act, and gives the Court discretion to prevent identification of suspect where the interest in protecting his reputation outweighs freedom of expression and the public’s interest to know. The Court will prohibit publication on two aggregate grounds: the suspect must show that the publication will result in grave harm to him; preventing such grave harm should prevail over the public interest in publication.

The Court noted that disclosing an investigation of interest, coupled with the possibility to publish information on the Internet anonymously, increases concern that a suspect’s identity will be exposed despite having imposed a gag order in his case. The greater the public interest, the greater the chances that the suspect’s identity will be exposed and “grave harm” will result. There is a great deal of uncertainty in evaluating such likelihood. The Court held that the possibility that a gag order will be violated should be evaluated when considering whether to prohibit publication of additional details, to the extent that imposing a gag order on the details of the entire matter is warranted. The Court added that it is incumbent upon it to additionally consider the likelihood that publishing details of a matter under investigation even without [publishing] the suspect’s name would result in his identification and cause him “grave harm”. This likelihood of identification and extent of harm will be examined on a case-by-case basis. The Court detailed, without exhaustion, the following considerations: the Court held that a gag order is presumed to be complied with and is sufficient to prevent identification. A suspect wishing to prevent the publication of further details, to the point of imposing a gag order on the details of the entire matter, must show that in his circumstances there is a substantial concern that the order will be violated, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing that harm outweighs the public interest in publication.

The Court held that balancing between extent of the “grave harm” to the Respondent that will likely result from the qualified publication, which is not high, and the public interest in publication, the matter’s publication should be permitted, while omitting the Respondent’s name and any identifying detail. Accordingly the appeal was upheld and the Magistrates Court’s order reinstated. The Court emphasized that the aforesaid does not amount to pronouncing on the proper balance between these interests if the decision not to prosecute the Respondent becomes final.

Voting Justices:

Vogelman, Uzi

Primary Author

majority opinion

Amit, Isaac

Author

concurrence

Hayut, Esther

Author

concurrence

Full text of the opinion:

In the Supreme Court

Crim.App. 8225/12

MCA (Criminal) 8239/12

Before: Her Honor Justice E. Hayut

His Honor Justice U. Vogelman

His Honor Justice Y. Amit

The Appellants in Crim.App. 8225/12

1. Jane Doe Co. Ltd

2. Jane Doe

The Applicant in MCA (Criminal) 8239/12

Jane Doe (a minor)

versus

The Respondents:

1. John Doe

2. The State of Israel

Appeal against the judgment of the Tel Aviv-Jaffa District Court (His Honor Judge Z. Kapach) in Other Appeal (OA) 46171-04-12 of November 6, 2012

Date of session: 25th Tevet 5773; January 7, 2013

Adv. Shira Brick Haimovitz; Adv. Einat Berg-Segal

on behalf of the Appellants in Crim.App. 8225/12

Adv. Shira Dorfman-Algai

on behalf of the Applicant in MCA (Criminal) 8239/12

Adv. Avi Vacnich; Adv. Uri Shenhar

on behalf of the First Respondent

Adv. Itamar Gelbfish

on behalf of the Second Respondent

Judgment

Judge U. Vogelman

1.The Respondent, a therapist by profession, was arrested on suspicion of committing an indecent act on the Applicant in MCA (Criminal) 8239/12 (hereinafter – the “Applicant”), a minor born in 2006, while he was treating her. The Magistrate Court extended his arrest by two days and granted an order prohibiting publication of any details of the case (hereinafter, “gag order”). Immediately after the arrest, a minor story was published on an Internet news site that reviewed the main suspicions without mentioning the Respondent’s name. The story was removed immediately after the gag order was granted. On completion of the investigation against the Respondent, the Prosecution decided not to prosecute due to lack of sufficient evidence. The Applicant filed an appeal against this decision with the State Attorney. At the same time, the Applicant filed a petition with the Magistrate Court to remove the blanket gag order so that details of the case would be published without the Respondent’s name or any other identifying detail. On April 4, 2012 the Magistrate Court (His Honor Judge T. Uziel) granted the Applicant’s application. The Respondent filed an appeal against this decision. On the filing of the appeal, the District Court (His Honor Judge Z. Kapach) decided to stay implementation of the Magistrate Court’s decision until otherwise decided, and from time to time granted continuances finding that the question whether or not the Respondent would be indicted was material to its decision. In the meantime, the Applicant’s appeal against the decision not to prosecute t was allowed, and the investigation was reopened; a supplemental investigation took place and the Respondent was questioned again. Ultimately the District Attorney once again decided to close the case due to lack of sufficient evidence. The Applicant’s appeal of the second decision is still pending before the State Attorney. On October 25, 2012 the Appellants in this case—a media company and a reporter who works for it—filed an application with the District Court to join the Respondent’s appeal against the decision to allow publication, and expressed their support for the Applicant’s position.

2.On November 6, 2011 the lower court heard the appeal by the Respondent (who was referred to as “appellant”). His appeal was heard together with the Appellants’ application to join the proceedings. The Court reiterated the considerations outlined in the case law for granting a gag on a suspect’s name or investigation detail pursuant to section 70(e1)(1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, the “Courts Act” or the “Act”), and held that in the circumstances of this case the scale tips in favor of prohibiting publication of all the case’s details. The Court emphasized that since according to the investigation and prosecution authorities there was insufficient evidence to prosecute, there was no public interest in exposing an incident that might not even occurred. The lower court also held that publicizing the incident as an example in an article written to draw attention to signs of distress displayed by children undergoing therapy, such as the Applicant, does not justify publication since an article can be prepared without detailing a concrete incident; and that the argument that publication might result in the filing of additional complaints where the State has not applied to allow publication for such purpose must be rejected. The Court added that there was concern that the motive of the Applicant’s family was revenge against the Respondent and that, in view of the serious nature of the accusations against the Respondent, there was no doubt that grave and irreversible harm would be caused him if his identity was revealed. Finally the Court held as follows:

“We are living in the age of the Internet. The physical town square has long since disappeared, and has been replaced by a virtual square. If publication of the incident, the occurrence of which is itself in doubt, is permitted, connecting the Appellant to the incident would be easy, as the appellant works in a limited professional circle and because there are many ways to directly or indirectly circumvent the gag order prohibiting publication of a name. This can be done through anonymous comments (talkbacks), forums, Facebook, Twitter and more.

After hearing what the minor’s family has to say about the Appellant, as aforesaid, my concern, which I harbored from the outset, that his name will be linked to the incident in roundabout ways, has grown” (pages 7-8 of the judgment) [emphasis in the original].

The proceedings before us are about this decision.

The parties’ arguments

3.The Appellants argue that the District Court was not authorized to grant a gag order prohibiting publication of all the details relating to the incident. According to them, section 70(e1)(1) of the Courts Act authorizes the Court to prohibit publication of a suspect’s name or of another investigation detail, but not both together; and in any event it does not authorize the Court to impose a gag order on the details of the entire case. It was also argued that the Court erred in disregarding the potential harm to the Respondent that would result from publishing details of the incident without identifying details; and it erred in allowing all details to be published since the case was closed, as well as in determining that the public has no interest in publishing the incident’s details. The Appellants add that the gag order goes against the principle of public hearings and proceedings and the public’s right to know; that the motive for publication should not have been considered; and that even in the Internet age, publication of legitimate information should not be prevented solely because of the theoretical concern that privileged information would be exposed on-line.

The Applicant’s arguments mostly overlap with the Appellants’ arguments. The Applicant adds that the Court erred in determining there was concern that the family would expose the Respondent’s name on the Internet in a roundabout way. According to her, had her family wished to do this, it would have done so while the Respondent was under arrest since at that time the arrest was published as a story on the Internet, without his name.

The State—which was not a party to the proceedings in the lower courts—joined the proceedings before us, and it supports the position of the Appellants and the Applicant.

4.The Respondent objects to publication. First of all, he argues that the Appellants filed an appeal with this Court when they should have filed an application for leave to appeal; and that their appeal should be dismissed for this reason alone. With regard to the application for leave to appeal filed by the Applicant,, the Respondent argued that the appeal does not establish cause for granting leave to appeal to this Court as a “third round.” Substantively, the Respondent argued that the Appellants and the Applicant concealed from this Court the fact that the Applicant’s father serves in a managerial position in the First Appellant, and these proceedings are thus tainted by a lack of good faith; that the Applicant’s parents wish to misuse the investigation material, which was sent to them for their review solely for the purpose of filing an appeal, by publishing its contents in a newspaper; and that the motive of the Applicant’s parents for publication is an attempt to exert pressure on the Prosecution to allow the appeal and thereby prejudice the Respondent. The Respondent further argues that the harm he will suffer as a result of the publication is grave. According to him, the circles close to the case who have general knowledge will be able to identify him in publications about it. The publication would make the case the “talk of the town” amongst his professional community, which would want to know which male therapist is involved, and since there are few male therapists his name would shortly be leaked to the general public, or at the very least to the public interested in therapy such as he offers.

Discussion and Decision

5.We will first comment on the legislative framework relevant to our discussion. Though currently the District Attorney’s position is that there is insufficient evidence to substantiate reasonable prospects of a conviction and therefore the Respondent should not be indicted, an appeal is pending against this decision. The two courts before us, as well as the litigants and the State, have all assumed section 70(e1) of the Courts Act, which refers to a “suspect” as defined in section 70(e2) of the Act as “someone against whom a criminal investigation has been commenced” applies. I accept this assumption because in appeal proceedings there is de novo review of the matter by the entity in charge of the administrative authority which made the decision. Within the boundary of this review, the entity hearing the appeal steps into the shoes of the entity which gave the decision subject to the appeal and exercises wide and independent discretion in its stead. Accordingly, even though we should keep in mind for the purpose of these proceedings that a decision by the District Attorney not to prosecute the Respondent because of insufficient evidence still stands, so long as the administrative proceedings have not reached a final decision; there is no impediment to seeing the Respondent as “someone against whom a criminal investigation has been commenced” and to trying his case according to the said legislative framework. I therefore do not address the conditions for a gag order regarding the details of an investigation against after a decision not to prosecute and the objection proceedings against that decision exhausted.

The procedural level: the media’s appeal—by right or with leave?

6.The Appellants appealed against the District Court’s judgment. Were they entitled to do so, or does their appeal require application for leave? On January 18, 2012 the Courts Act (Amendment No. 69), 5772-2012, Book of Laws 122, came into force, which addressed gag orders on investigations and legal proceedings. The beginning of section 70(e1)(1), together with sections 70A(a) and (b) of the Act, provide that a Magistrate Court may prohibit publishing the name of a suspect that has yet to be indicted, or of any other investigation detail, as long as the conditions below are met. As a rule, the Court will impose a gag order under this section pursuant to a suspect’s application (hereinafter, “application for a gag order”). Once the Magistrate Court has imposed a gag order, anyone wishing it be revoked, including the media, may submit an application to the same Court (section 70C(a) of the Act) (hereinafter, “revocation application”). The Respondents in the revocation application will be the suspects, along with any person who was a party to the application for a gag order (section 70B(a)(2) of the Act). Section 70D of the Act regulates appeals against the Magistrate Court’s decision on an application for a gag order or revocation application: there is a right to appeal against either to the District Court, with one judge presiding (sections 70D(a)(1) and (3) of the Act); a judgment on appeal against such decisions may be appealed with leave to the Supreme court, which will hear it before a single judge (section 70D(b) of the Act). Section 70E of the Act authorizes the Minister of Justice, with the Knesset’s Constitution, Law and Justice Committee’s approval, to regulate applications for a gag order or publication, as well as the procedures for appeals and applications for leave to appeal against decisions on such applications. As of this judgment, the sub-legislature has yet to regulate.

1.Thus, the proper way to revoke a gag order granted under section 70(e1)(1) of the Act is to submit an application with the Magistrats Court that granted the order. However, what is the proper procedure where the Magistrate Court has revoked the order, an appeal against the revocation is pending before the District Court, and a third party, including the media, which was not a party to the original revocation application wishes to argue regarding the order’s revocation? In my view, the third party should submit a joinder application with the District Court in the pending appeal against the Magistrate Court’s decision, as was done in this case. To be sure, the matter in the District Court is a first appeal. Another second appeal with this Court is a “third round” in the entire proceeding, and therefore leave [to appeal] must be granted (compare: MCA (Civil) 4511/05, Bat Yam Municipality v. Ganei Yafit Building & Investment Co. Ltd (July 17, 2005); ALA (Civil) 3385/08, Market Place Systems Ltd v. Teletel Communication Channels Ltd, paragraph 12 (September 25, 2008)). The same result is warranted under the framework that existed before the Amendment to the Act (see ALA (Criminal) 2741/96, Galanti v. State of Israel (April 17, 1996); MCA (Criminal) 424/06, Amar v. Channel 10 News Ltd (February 2, 2006)). Accordingly, contemplating whether the Amendment to the Act applies in our case (here, it should be noted that the first decision of the Magistrates Court,which placed a gag order on the details of the entire case, was given before the Amendment came into force) is unnecessary.

2.It emerges then that the Appellants filed an appeal without having the right to do so. The question therefore arises how one should treat this appeal: can it be converted into an application for leave to appeal, or should it be dismissed for having been submitted without a right to do so? The answer to this question might be influenced by another: since no regulations have been promulgated with regard to the procedure, should this appeal be governed by the Civil Procedure Rules, 5744-1984, or by the provisions of the Criminal Procedure Act [Consolidated Version], 5742-1982? Insofar as the appeal is heard as a civil proceeding, the rule is that the appeal cannot be converted into an application for leave to appeal (see, for example, Civ.App. 8154/03, Altori v. Arieh Israel Car Insurance Co. Ltd, paragraph 8 (August 15, 2005); Civ. App. 4540/04, Matach – Educational Technology Center v. Orbuch (September 14, 2006); however, see Civ.App. 2201/07, Choninsky v. Atlantis Multimedia Ltd, paragraph 14 (February 2, 2009)). Insofar as the appeal is heard as a criminal proceeding, the question whether it may be converted into an application for leave to appeal has yet to be clearly answered in our case law.

Since in this case the Applicant filed an application for leave to appeal and since in any event we believe the matter’s importance justifies considering the application as though there was notice of appeal so that the issue will be determined on merits, we also saw no need to decide these questions, and we will leave them for future consideration.

3.To conclude the procedural issues, we would emphasize that though the Applicant’s application for leave to appeal was considered by a panel of three, only one justice of this Court need rule on an appeal against a judgment of the District Court regarding the Magistrate Court’s decision to impose or revoke a gag order (section 70D(b) of the Courts Law)).

We now turn to discuss the appeal on its merits.

A gag order prohibiting publication of a suspect’s name or other investigation details

4.The issue of a gag order prohibiting publication of identifying details of crime suspects calls for balancing opposing basic principles and constitutional rights. On the one hand, there is the fundamental principle of public hearings and proceedings, a principle enshrined in section 3 of the Basic Law: The Judiciary, and in section 68 of the Courts Act. This principle dictates that as a rule, the details of judicial proceedings, as well as the identity of the litigants, shall be available to the public. This principle is consistent with the broad view that freedom of expression and the public’s right to know are basic principles in a democratic regime, designed to guarantee transparency and serving as a check on the integrity and adequacy of proceedings, so as to strengthen the public’s confidence in the judicial system (MCA (Criminal) 5759/04, Turgeman v. State of Israel, PD 58 (6) 658, 662-664 (2004) (hereinafter, “in re Turgeman”); MCA (Criminal) 5153/04, John Doe v. Yedioth Ahronoth, PD 58 (6) 933, 938 (2004); MCA (Criminal) 1071/10, John Doe v. State of Israel, paragraphs 6-9 (February 25, 2010); MCA (Criminal) 1770/10, John Doe v. State of Israel, paragraph 6 (March 5, 2010)). On the other hand, there are the rights to dignity, reputation and privacy; these too are basic rights in our system and are enshrined in sections 2, 4 and 7 of the Basic Law: Human Dignity and Freedom (MCA (Criminal) 1659/11, Stenger v. State of Israel, paragraph 6 (April 26, 2011); Civ.App. 1697/11, A. Gutman Architects Ltd v. Vardi, paragraph 12 (January 23, 2013) (hereinafter, “in re Vardi”); Civ.App. 751/10, John Doe v. Dayan-Orbach, paragraphs 75-79 of the judgment of Deputy President E. Rivlin, paragraphs 3-4 of the judgment of Justice Y. Amit (February 8, 2012) (hereinafter, “in re Dayan”)). A derivative of liberty rights is that unless prosecuted and convicted, everyone is presumed innocent (MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). There is no doubt that identifying a person as a crime suspect affects his reputation and privacy and might cause great and irreversible harm. “The publication of a suspect’s name during a criminal investigation, and before an indictment, might be extremely injurious, especially if at the end of the day the investigation concludes without an indictment. The negative image that sticks to a person once his name is published as a crime suspect might last a lifetime, even if at the end of the day the investigation did mature into prosecution” (the words of Justice Ayelet Procatzia in MCA (Criminal) 1071/10, paragraph 8; see also in re Turgeman, on page 670; Civ.App. 214/89, Avneri v. Shapira, PD 43 (3) 856-957 (1989); Yuval Karniel – “Publication of Suspects’ Names – Freedom of Expression versus a Person’s Reputation”, Human and Civil Rights in Israel – page 392 (Tali Ben-Gal et al Editors, 1992)).

5.The legislature instructed on the appropriate balance to strike between these opposing rights, holding that the principle of public hearings and proceedings and the public’s right to know are the rule, and that they shall yield to the need to protect a suspect’s reputation and privacy when exceptional circumstances exist (MCA (Criminal) 1071/10, paragraph 9; in re Turgeman, on page 663). Section 70(e1)(1) of the Courts Act, which details one of the circumstances, provides:

The court may prohibit publishing of the name of a suspect who has yet to be indicted or other investigation details if it believes that publication might cause the suspect grave harm and that preventing that harm is preferable to the public interest in publication; if the court imposes a gag order prohibiting publication of the name of a suspect who has yet to be indicted, the order shall expire upon the suspect’s indictment, unless the court has determined otherwise.

7.This section confers on the court discretion to prevent identification of a person who is suspected of criminal offences when the interest in protecting his reputation outweighs freedom of expression and the public interest in knowing. A court shall prohibit publication when two aggregate conditions are met. First, the suspect must show the publication might result in “grave harm” to the suspect. It should be emphasized that “ordinary harm” to the suspect is insufficient for the section’s protection to apply. “Publication that is not exceptionally harmful does not trigger the exception” (MCA (Criminal) 1071/10, paragraph 9; see also Civ.App. 2430/06, Yedioth Ahronoth Ltd v. Goldberg (June 4, 2006)). Regarding the question whether a publication might cause “grave harm,” a court will consider, inter alia, the following factors: the suspect’s personal circumstances, his physical and mental state, the nature of the suspect’s occupation and whether it involves contact with people, whether the suspect is a public figure (in which case the harm that publication would cause is greater), whether the suspect has small children who will be harmed by the publication, thereby increasing harm to the suspect, whether the suspect has a relevant criminal history (in which case the harm is diminished), the type and gravity of the offence, and the weight of the evidence gathered in the investigation (in re Turgeman, on pages 670-671).

The second condition is that preventing grave harm to the suspect should outweigh the public interest in publication. There are two levels to this public interest: the general and the particular. The general level concerns the fundamental principles of freedom of expression, public hearings and proceedings and the public’s right to know. According to (former) Justice M. Cheshin: “This aspect of public interest in publication requires neither proof nor argument. It is self-evident, a starting point for the journey of interpretation. It is a conclusive presumption—let us say, an axiom—that the public has an interest in the publication of court proceedings; court proceedings are in and of themselves interesting to the public and this interest exists in all proceedings” (in re Turgeman, on page 667). In order to determine the extent of the public interest in publication on the particular level – the Court will consider, inter alia, the nature of the acts that the suspect is suspected of committing; the extent to which the publication of the suspect’s name or details of the case might put the public on guard and influence its conduct (and satisfaction of a mere need for gossip does not fall within the scope thereof); whether a public figure is implicated, in which case the public has a greater interest in the case, if the publication can advance the investigation and uncover the truth (for example, if the publication might encourage other victims to come forward), the weight of the evidence gathered against the suspect, the anticipated date of indictment, and the extent to which details of the case were published prior to submitting an application for a gag order (ibid, on pages 667-668).

In my view, the two conditions listed in section 70(e1)(1) are inter-related and there is a reciprocal between them: the greater the public interest in publication, the more the applicant-suspect will be required to prove that the harm to him, both in terms of likelihood and in terms of extent, is greater. Once a likelihood of “grave harm” and its extent are proven to be very great, a greater public interest is necessary to dismiss the application for a gag order.

Preventing the suspect’s identification

6.As discussed above, the purpose of section 70(e1) of the Act is to prevent the result of grave harm to a person identified as a crime suspect. The section authorizes a Court to reach this purpose in two alternative ways: one is by imposing a gag order prohibiting publication of the suspect’s name. This prevents identification if, as a result, a reasonable person is unable to connect the published information to a specific person (in re Vardi, paragraph 18). However, this will not prevent identification if the publication includes other details that make it possible to identify the suspect (ibid, paragraph 21; Civ.App. 8345/08, Ben Natan v. Bakhri, paragraph 34 (July 27,2011)). Accordingly, the legislature expressly defined: “a suspect’s name . . . including any other detail that might identify the suspect” (section 70(e2) of the Act). Hence, insofar as a court finds that the suspect’s identification can only be prevented by imposing a gag order on publishing details of the whole case, it may do so. The second way to reach the section’s purpose is to impose a gag order against publishing other investigation details, without prohibiting publication of the suspect’s name. This is intended for situations in which publication of the suspect’s name together with certain investigation details would not cause the suspect grave harm, but the publication of a specific detail—for example, suspicion of committing a particular offence among several offences—might cause the suspect grave harm.

7.“Another detail that might identify the suspect” is a detail that passes the “de-anonymization” test. According to this test, “if anyone has key details enabling them to perform ‘reverse engineering’, i.e. to attribute the published information to a particular person, these details must be considered to be identifying information” (in re Vardi, paragraph 22). The information that might lead to identification of a suspect can be divided into two types. One is information that could enable identifying an anonymous suspect. This means information that includes public, distinguishable and unique characteristics that make it possible for a reasonable person made aware of the case’s details for the first time through the publication to identify the suspect involved. The publication of such information might have similar consequences to publishing the actual name. A second type is information that could enable identification of a well-known suspect. This means information that enables a specific person, who has prior knowledge of the suspect or the case, to connect the publication to that information, and identify the suspect. The type of identifying detail, the first or second type, has implications for the extent of the harm the publication could cause the suspect. The premise is that publication that enables any person to identify the suspect (publication of the first type) might cause greater harm than publication that enables identification of the suspect by a more limited number of people (publication of the second type). However, this is only a starting point.

A gag order, the Internet and everything in between

8.The Internet has generated extensive changes in our world. Alongside its many advantages, the Internet poses significant legal challenges. There is no denying that the anonymity characterizing cyberspace somewhat facilitates the commission of torts, and sometimes the commission of criminal offences as well. Against this background, there are those who argue that the digital age has eroded the efficacy of gag orders; after all, the ways to violate it are many and simple. According to this approach, the reason for granting gag orders that permit publication of cases’ details without publishing the suspect’s name has weakened, because the order may be easily violated and the suspect’s identity would become common knowledge. This position must be rejected. The premise is that a court order is not merely a recommendation. Every person is obligated to strictly comply with an order—any order. Public order requires that court orders be complied with, and public interest mandates that the public should know that a court order is followed effectively and that court proceedings were not in vain (ALA (Civil) 3888/04, Sharvat v. Sharvat, PD 59 (4) 49, 58 (2005); the words of His Honor Judge S. Joubran in HCJ 8707/10, Hess v. Minister of Defense (February 3, 2011)).

9.We are not blind to virtual reality and the difficulties of enforcing the law in cyberspace. As is known, there are sometimes real technological challenges to identifying a wrongdoer operating in the shadow of the Internet, especially when that same wrongdoer makes intentional efforts to avoid detection (ALA (Civil) 4447/07, Mor v. Barak E.T.C. (1995) International Telecommunication Services Ltd, paragraph 10 of the opinion of Deputy President E. Rivlin (March 25, 2010) (hereinafter, “in re Mor”)). However, even given this, the concern that gag orders will be routinely violated should not be exaggerated. Contrary to widespread opinion, freedom of expression on the Internet is not absolute. Although the cyber community engages in many and varied activities, such as chat rooms and forums, blogs and content sites, users’ attention is focused primarily on central content providers. As a rule, these providers supervise the content published on their platforms. Moreover, communities that operate under the auspices of official content providers have trained managers who actually serve as regulators and make sure, inter alia, that the content complies with legal requirements. In fact, members of the community themselves might also act as regulators for the purpose of maintaining order. These are all important self-regulatory mechanisms, which might help ensure gag orders are followed on the Internet (see and compare: Karine Barzilai-Nahon and Gad Barzilai, “Actual and Imagined Freedom of Expression on the Internet: On the Abolishment and Rebirth of Censorship”, Quiet, Speaking! 483, 485, 491-497 (Michael Birnhack, Editor, 2006)).

One should not overlook that when a case is earth-shattering or expected to have a particularly wide impact that extends beyond the borders of the State, it is possible that in the Internet age an order will not prevent information about the affair from quickly becoming common knowledge. Accordingly, in those exceptional cases a different position might be necessary. Since, and as detailed below, this case is not one of those cases there is no need for me to lay down hard and fast rules about this category. The discussion below will not refer to it, and it shall remain open for future consideration.

10.In addition to the self-regulatory mechanisms on the Internet detailed above, there are State law enforcement mechanisms. Law enforcement authorities must make a constant effort to keep up with technological developments so that offenders can be brought to justice, for which purpose they may use the tools the legislature has put at their disposal. We live in a law-abiding country and violating a court order has consequences in the real world. Thus, violating a gag order might carry various sanctions: anyone harmed by the violation may recover from the wrongdoer for breach of a statutory duty under section 63 of the Torts Ordinance [New Version]; the order’s violation might constitute a criminal offence under section 70(f) of the Courts Act; and violation can be considered contempt of court under section 6 of the Contempt of Court Ordinance, a section that authorizes a court to compel one to comply with an order through a fine or arrest.

11.Indeed, one should not overlook the fact that publication of the details of an investigation in which there is public interest, even in general terms and without noting the suspect’s name, will garner greater and faster exposure than in the past. Deputy President E. Rivlin addressed this as follows:

“The Internet is the new “town square” where everything is shared. The new medium – cyberspace – is everywhere and is open to all. The tools it offers, including ‘chat rooms’, e-mail, surfing the World Wide Web (browsing) and social networks – make it possible to obtain and pass on information, ‘listen in’ on others’ opinions and voice one’s own. It is therefore a quintessential democratic means to advance the principle of equality and protect against government intrusion on freedom of speech through legislation. The keyboard is available to every writer, and tapping a ‘mouse’ takes the written word to all four corners of the Earth. The public does not need, as it did in the past, a platform provided by others . . . [a]ny member of the public may and can create a ‘newspaper’ of his or her own and say his or her piece in a blog” (in re Mor, paragraph 14; see also Asaf Harduf, “Online Crime” 134-135 (2010)).

The more interesting a case is and theof more individuals’ interests that may be impacted, the more reasonable it is to assume that a wider public will discuss it online. In the case of a publication that attributes to a person an offence that involves particular revulsion and disgust, the publication might rumors about the identity of those involved and raise suspicions against specific people.

12.We would again mention that an important and central characteristic of publication on the Internet is the possibility of anonymity. “The distinctiveness of talkbacks is in their anonymity, in the fact that they are posted in response to articles written by others and in the use of available platforms for voicing individual opinions. Involved therefore is an accessible and instant way [of communicating] that is free of geographical borders and frequently free of filtering and editing, not to mention—also anonymous” (in re Mor, ibid). It is undisputed that in today’s reality a person wishing to publish something online and remain anonymous may do so without any real difficulty, and that there are many people who exploit this anonymity and break the law under the assumption that it will be impossible to identify them and bring them to justice (See and compare: in re Mor, paragraphs 10-17; Civ.App. 9183/09, The Football Association Premier League Limited v. Peloni (May 13, 2012); the explanatory notes on the Draft Exposing the Identity of a Publisher of Online Content Act, 5772-2012, Government Bills 1376; Michael Birnhack “Exposure of Anonymous Online Browsers”, “Laws” on 51 (2010); Michael Birnhack, “Private Space – The Right to Privacy between Law and Technology” 299-300 (5771); Amal Jabarin and Yitzhak Cohen, “Importance of the Identity of Anonymous Internet Users – Institutional Viewpoint,” Law Research 28 7, 8-10 (2012)). Although the premise is that the online press in Israel, as well as anyone notified of a gag order, will comply with the order, one should not overlook the fact that there are many Internet sites—including blogs, social networks and forums—that do not employ routine supervision, in real time, of everything published on them. Given this reality, it indeed is impossible to guarantee that a suspect’s identity will not be exposed on the Internet. Although it is possible to retroactively remove a prohibited publication published in Israel on the application of the suspect to the site after the fact, until the publication is removed from the site it might garner varying degrees of exposure.

13.In sum, the exposure of an investigation with potential for public interest, together with the possibility of anonymously publishing information on the Internet, increases the concern that the suspect’s identity will be revealed despite a gag order. The greater the interest to the public, the greater the likelihood of the suspect’s identity being revealed and that the suspect will be caused “grave harm” as a result. That said, assessing this likelihood involves a great degree of uncertainty. Inter alia, it is difficult to assess whether the suspect’s name would indeed be leaked on the Internet and, as discussed, the presumption is that this would not necessarily happen. Factors to be considered are the period of time that would be required for a name to be removed, the extent and pace of exposure until removal, and the expected harm to the suspect (i.e. the likelihood that the suspect’s identity is exposed coupled with the harm that might be caused if the identity is exposed).

14.When considering whether or not to prohibit publication of additional details, should a court take into account, inter alia, the possibility that a gag order will be violated, to the extent of imposing a gag order on the details of the entire case? In my view, this question should be answered in the affirmative. The object of section 70(e1)(1) of the Act is to enable a court to properly balance opposing interests—freedom of expression and the public’s right to know, and protecting the suspects’ reputation, privacy and presumption of innocence. An a priori finding that one should not include in the balancing equation the possibility that a gag order will be infringed—even when proved that this is a real possibility—will undermine the purpose of the section and the court’s role in its realization. In my opinion, it is incumbent on the Court to also consider the likelihood that publishing the details of a case under investigation even without mentioning the suspect’s name would lead to the suspect’s identification and cause “grave harm.” This likelihood and the consequent harm expectancy will in any event be considered on the merits and according to the circumstances, although one can point to, without exhaustion, the following guiding considerations: the extent of the interest the case might generate, the extent of the impact and exposure resulting from this interest, possible motivations of those who know the suspect’s identity to reveal it and whether the suspect has specified a concrete person with such motivation, and possible motivations of those who do not know the suspect’s identity to learn it.

15.To be sure, in the circumstances described above, it cannot be presumed that the identity of the person whose name and any identifying detail has been prohibited for publication will be exposed. Vague arguments regarding possible future violation of a gag order are not a good reason for refusing to grant the order to begin with. As emphasized, the argument that possible future violation of a gag order makes granting it superfluous must fail because the practical implications of accepting such an argument are that granting the order is futile, and that those applying for orders must cease making applications to the court—even if there their application is with merit. Possibility of infringement does not justify rejecting applications for orders where prohibition is warranted. If this is done in a democracy— “freedom and anarchy will become synonymous” (compare: Crim.App. 126/62, Dissenchick v. The Attorney-General, PD 17 169, 179 (1963)).

The premise is therefore that an order will be followed and that it is sufficient to prevent identification. A suspect applying to prevent publication of additional details to the point of a blanket gag order covering the details of the entire case must show that in their specific circumstances, there is a real concern—that is, not a vague concern—that the order will be infringed, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing this harm outweighs the public interest in publication.

From the general to the particular

16.The Magistrate Court set aside the blanket gag order that was initially imposed on the entire case, and instead granted a gag order prohibiting publication of the suspect’s name, place of residence, the location of his clinic, and any other detail that might result in his identification. In doing so the Magistrate Court assumed that publication of any of these details might result in identification of the Respondent, that he would be caused grave harm as a result, and that preventing the harm outweighs the public interest in publication. The Applicant and the Appellants did not object to this decision, and rightly so. In my opinion, the circumstances of the case fulfill the conditions tipping the scale in favor of prohibiting the Respondent’s identification. With regard to the first condition, there is no doubt that publishing the Respondent’s name would have caused him “grave harm.” “The disgrace that follows sexual offences against minors is very powerful, and it is one of the lowest offences that carry such disgrace” (in re Turgeman, on page 672). The potential harm to the Respondent’s reputation and to his privacy should he be identified is significant and obvious. This harm is intensified in light of the Respondent’s occupation and the harm that publication would cause to his livelihood. The Respondent has children who are not aware of the suspicions against him and the publication would also harm them thus increase the harm to him. The Respondent has no criminal history. Currently, the District Attorney believes there is insufficient evidence to establish reasonable prospects of a conviction and that the Respondent should not be prosecuted, even though this decision is subject to appeal before the State Attorney and thus is not final (and it should be emphasized that we are not expressing any position regarding the appeal’s prospects).

As to the second condition, concerning the public interest in publication, here too, the scales tip in favor of preventing the revealing of Respondent’s identity, as opposed to imposing a blanket gag order on the entire case. Although the act that the Respondent is suspected of committing is indeed serious, at this stage, the Prosecution believes that the weight of the evidence against him is not sufficient to warrant prosecution. The State did not argue that the publication of his name might encourage additional complaints against him. It did not try to suspend his license and he is continuing to work in his field. Nor was it argued that the publication of the Respondent’s name would advance the investigation and discovery of the truth. The Respondent is not a public figure. In these circumstances, the main argument for publishing details of the case is freedom of expression, public hearings and proceedings and the public’s right to know, as well as the public as a check on the investigating authority and the Prosecution. For such purposes, publishing the name is not essential.

17.Should a blanket gag order have been imposed on the details of the entire case? The premise is that the Respondent’s identity should not be exposed. In order to prohibit publishing additional details—to the point of imposing a blanket gag order (as ordered by the District Court)—the Respondent should have shown that had publication of other details not been prohibited, he would be occasioned “grave harm”; and that the interest in protecting his reputation and privacy in the circumstances of the case takes precedence over the public interest in knowing the details of the affair. I will now turn to review these conditions.

Did the Respondent meet his burden to show he would be caused “grave harm”? It is undisputed that since publishing the Respondent’s name (including any identifying detail) falls under the gag order, the likelihood that a reasonable person who is not acquainted with the Respondent would link him to the crimes of which he is suspected and identify him is inherently diminished. The likelihood that he will be caused “grave harm” is therefore considerably low. However, the Magistrate Court’s gag order does not eliminate the possibility of identifying the Respondent. The Respondent argues there is a real concern his name would be leaked on the Internet or that the rumor mill would point to him and cause him “grave harm.” As noted above, there is an inherent difficulty in predicting how matters will develop and one cannot avoid an assessment that is based on life experience, logic and common sense, with assistance from the guiding considerations delineated above.

18.Given the nature of the case—suspicion that a therapist who treats young children committed sexual offenses on a patient—it is reasonable to assume that its publication will generate interest among parents whose children are treated by a male therapist. It is possible that parents who learn of the case will try and find out who is involved and to make sure that the person treating their child is not the Respondent. It is also possible that therapists—who are not necessarily aware that a gag order has been granted—will be interested in who is involved; and hence the publication will garner exposure and create an impact. This discourse will somewhat increase the likelihood Respondent will be identified or suspected. It should also be noted that the District Court expressed concern that the Applicant’s family will expose the Respondent’s identity “in roundabout ways.”

19.Even though one cannot rule out the possibility that the Respondent’s identity will be revealed despite a gag order prohibiting the publication of his identity, it appears that the expectancy of grave harm that might be caused to the Respondent is low. I will clarify. Firstly, I am aware that the District Court believed that the statements of the Applicant’s family vis-à-vis the Respondent increase the concern “that his name will, in roundabout ways, be linked to the event.” However, I believe that this finding is insufficient to establish a real concern that the order would be violated. The reality is that until now the family has not violated the order, directly or indirectly. Secondly, the Respondent’s arrest and the nature of the suspicions against him were published in mainstream media for a short period of time until they were removed, but his identity, he agrees, remained confidential, and the publication did not result in the “violating” publications he fears. This shows that this case is not one of those “special and exceptional” cases I discussed above, and attests to the proper weight that should be given to concerns regarding violations of the order and harm expectancy. Thirdly and primarily, while a gag order prohibiting publication of any identifying detail stands, without identifying publication by any credible media outlet these publications would amount to nothing more than rumors or suspicions, even if there were violating “leaks.” It goes without saying that the harm that might be caused as a result is infinitely less than the harm caused by an identifying publication in the central media in the absence of a gag order.

20.Against the expectancy of grave harm, which is not high, one should weigh the public interest in publication. This balance leads to the conclusion that publication of the case’s details should be permitted, without the Respondent’s name or any detail that could lead to his identification. We discussed above the importance of public hearings and proceedings and the public’s right to know generally, and there is no need to repeat this. On the level of the particular, the following should be considered:

Firstly, publishing the suspicions against the Respondent and the symptoms that the Applicant displayed might increase parents’ awareness and vigilance about the type of harm that the Respondent is suspected of causing, draw parents’ and other therapeutic bodies’ attention to signs of distress minors display, and encourage parents to take reasonable precautions. Such publication might even facilitate public discussion on the issue. It is important and appropriate to respect the public’s right to know and to give the public the power to choose whether and how to respond.

Secondly, there is no need to elaborate on the fact that media scrutiny is a cornerstones of any democracy and that enforcement authorities are not immune to this, including in this case. In such context and as a matter of principle, timing should also factor. As a rule, one should aspire to enable the press to publish in real time concrete information about newsworthy cases on the public agenda, since “the democratic system of governance is sustained, and even dependent on a free flow of information about the central subjects influencing public life and private life” (HCJ 1/81, Shiran v. The Broadcasting Authority, PD 35 (3) 365, 378 (1981)).

8.To be sure, when considering the weight of the public interest one must consider that a decision to prosecute has yet to be made and that the District Attorney’s position is that there is insufficient evidence to do so. This information somewhat reduces public interest in publication, although it does not eliminate it (compare: Crim.App. (Tel Aviv District) 989/79, Borochov v. Yafet, DJ 5743 (B) 521 (1983); Uri Shenhar, The Law of Defamation 243 (1997); Eitan Levontin “The Authority to Limit the Publication of Suspects’ Names”, “Mishpatim” 30 249, 253-255 (5760); Raphael Bashan “The Journalist and the Public, Interview with the President of the Israel Press Council, Mr. Yitzhak Olshan”, Journalists’ Yearbook 7, 11 (5726)). One should also take into account that a decision on the State Attorney’s appeal is still pending, such that this result might change (of course without taking a stand). Accordingly, though the public interest is intertwined, inter alia, with the question whether the Respondent did in fact commit the acts of which he is suspected, the status of decisions regarding possible prosecution does not lead to the conclusion that at this time this case is of no interest to the public.

Before closing it should be emphasized that all this does not amount to taking any stand on the question of the proper balance should the Applicant’s appeal be dismissed, and the decision not to prosecute the Respondent becomes final.

Conclusion

21.From all the above, I believe that when balancing between the expectancy of “grave harm” that might be caused to the Respondent from a limited publication, which is, as clarified, not high, and the public interest in publication, publication of the case should be permitted, while omitting the name of the Respondent and any identifying detail. I therefore propose to my colleagues that the appeal be upheld and that the Magistrate Court’s order be reinstated.

___________________

Judge Y. Amit

I agree with the judgment of my colleague Justice U. Vogelman, and would briefly add and remark as follows.

1.As noted by my colleague at the beginning of his remarks (paragraph 5 of his judgment), the parties assumed that the Respondent qualifies as a “suspect” under section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “the Courts Act”) as “someone against whom a criminal investigation has been commenced.” Ex facie, it seems that section 70(e) refers to a “suspect” before a decision regarding prosecution is made, as emerges from the provision that a gag order will expire “on the filing of charges.” However, the Respondent in this case is not the usual “suspect” to whom the section refers; his status is that of a “former suspect” in that the investigation into his actions has been completed, a decision not to prosecute has been made, an appeal against the decision has been dismissed, and an appeal before the State Attorney against that decision is still pending. Nonetheless, since the parties referred to the Respondent as a “suspect” and since section 70(e) is the section most applicable to this case, I see no impediment to treating that section as the relevant statutory framework. In any event, and as noted by my colleague, this decision does not relate to the state of affairs after exhaustion of appeal proceedings against the decision to end the investigation without prosecution.

2.Section 68(b)(5) of the Courts Act authorizes a court to hold a closed and confidential hearing “in order to protect the interest of someone complaining or who has been accused of a sexual offence ” and section 70(a) of the Act provides that “a person shall not publish any information about a discussion that took place in a closed hearing without the court’s permission.” Hence, the Respondent is wondering how it is possible that had he been prosecuted and his status was that of “defendant,” the court would have been authorized to hold a closed hearing and grant a gag order, but the court has no authority to grant such order to protect a suspect, let alone a “former suspect.”

To this I would reply that the question is not one of authority but one of discretion. A closed hearing is not the final word and cannot be considered an “automatic” gag order; rather, a court must find that the conditions for a full or partial gag order exist (Civ.App. 2800/97, Lifson v. Gahel, PD 43 (3) 714 (1999); HCJ 6005/93, Eliash v Judge Shmuel Tzur, PD 49 (1) 159 (1995); ALA (Civil) 3007/02, Yoav Yitzhak V. Moses, PD 56 (6) 592 (2002); MCA (Criminal) 8698/05, Azulai v. State of Israel (October 19, 2005)).

3.I do not deny that the likelihood the Respondent’s identity will be exposed is considerable. His family and close friends are aware of the case and, as argued, it should be assumed that the publication would create a “buzz” about his work in therapy. Neither do I make light of the Respondent’s argument that the investigation and brief arrest were traumatic for him, and that the mere fact of publication will exacerbate his emotional injuries.

Additionally, I found it hard to see the great public interest in the case (the use of the word “case” relates to the proceedings in their entirety and does not derogate from the Respondent’s argument that so far as he is concerned there was no offence to create a case to begin with). Regrettably, sexual offences garner almost daily reports in the media, sometimes even sensationalist coverage at the beginning of news edition and in bold newspaper headings, such that I doubt publication of this case would increase public awareness and vigilance. I also wonder how the public might be disadvantaged if publication is delayed until the State Attorney’s decision on the Applicant’s appeal, if only to alleviate the Respondent’s concern that the publication is designed to pressure the Prosecution.

4.Nonetheless, I believe publication should be permitted within the limits the Magistrate Court has established, such as being motivated by the following.

Firstly, the Respondent’s case has already been reviewed and considered by two mechanisms, and both decided there was no room to prosecute. Actually, given his current status of “former suspect,” someone who enjoys a somewhat “greater” presumption of innocence, the harm that might be caused because of the publication is less than that which would be caused to an ordinary “suspect,” whose case has only been brought before a court, for example, in the process of requesting an arrest warrant.

Secondly, the argument that as long as the appeal is pending with the State Attorney there is no case, and in any event there is no public interest, should be rejected. The public has an interest in reviewing reasons for the investigation and prosecution authorities’ decisions, and the public’s right to know does not necessarily depend on the result these authorities reach.

In essence, non-publication of identifying or other details should be distinguished from non-publication of the case’s existence itself. The Respondent referred to the matter of The News Company (Crim.App. 11793/05, The Israeli News Company Ltd v. State of Israel (April 5, 2006)), but that case also involved the blurring of identifying details only, and not a gag order on the entire matter, despite the concern that blurring would be ineffective in the complainant’s close circle. The legislation and the case law primarily deal with publishing identifying details of a suspect, an accused or complainant of sexual offences. Thus, section 70A of the Courts Act deals with an “application regarding publication of a suspect’s name” and section 70B deals with “parties to an application regarding publication of a suspect’s name.” The Draft Courts Act (Amendment No. 31) (Prohibition of Publication), 5761-2001, DL 496, states it aims to expand the Court’s authority [and] “. . . prohibit publication of a suspect’s name, even where [the court] found the publication could cause the suspect grave harm, while balancing the suspect’s interest against the public interest in publication [.]”

To be sure, the emphasis is on publishing identifying details about the suspect, as opposed to publishing the existence of the case or the proceedings. Thus, in In re Turgeman, in the context of a gag order prohibiting publication of a suspect’s name, Justice Cheshin left the question “what is the fate of a gag order where it has been decided not to prosecute John Doe” undecided. A blanket gag order prohibiting publication of the fact that the events even occurred constitutes a case in the shadows. This result is difficult to accept both considering normative outcomes for the public’s right to know and considering the practical possibility of losing information in the bustling Internet world.

And from another angle: ordinarily, when the police and the courts are not involved, there is no impediment to the media in publishing news about one’s claim that they or their relative was a victim of a sexual offence. It is difficult to accept that the Respondent should find himself in a “better” position than any other person merely because investigation and arrest proceedings were instituted against him, by a gag order prohibiting publication of news about the very existence of the proceedings.

5.Against this background, I concur with the outcome of my colleague.

___________________

Justice E. Hayut

I concur with the opinion of my colleague Justice U. Vogelman and her outcome. Nonetheless, I wish to make several comments.

1.As noted by my colleagues, the parties’ premise was that the Respondent is still presumed a “suspect” as defined in section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “Courts Act” or the “Act”) and that section 70(e1)(1), which authorizes the court to grant a gag order against publishing the name of a suspect who has yet to be prosecuted, or of another investigation detail applies. This was indeed the focus of the decisions in the appeal and consequently of the parties’ arguments. And rightfully so, as my colleague Justice U. Vogelman clarifies, since at this stage an appeal is still pending. Nonetheless, the Respondent’s status is closer to that of a “former suspect” (subject to the decision on the pending appeal). Hence, the question: what is the fate of someone who was presumed a “suspect” after a decision not to prosecute was made and the appeal proceedings were exhausted? In such a case, is a court still authorized, under section 70(e1)(1), to issue a gag order in respect to the Respondent and, under such circumstances, what is the status of a gag order granted while he was still a suspect? This issue was not raised and thus was not clarified in the decisions and submissions before us. Hence, I will not elaborate on this and will settle for mere preliminary thoughts.

2.The end of section 70(e1)(1) of the Courts Act provides that if a court grants a gag order against publishing the name of a suspect who has yet to be prosecuted “the gag order will expire upon the suspect’s prosecution.” A possible interpretation of this provision is that “from the positive follows the negative” and therefore when a decision is made not to prosecute a suspect and the investigation is closed, the gag order remains in force. This approach is consistent prima facie with the view that once a decision not to prosecute is made, the former suspect’s interest in protecting his reputation grows stronger, because, unlike a suspect who enjoys a strong presumption of innocence during the investigation stage, we are now dealing with someone whom law enforcement authorities have already decided should not be prosecuted. Accordingly, it can be said that once the investigation into a suspect has been closed, the balance between the public interest in public hearings and proceedings and the private interest of the former suspect whose details shall not be published shifts toward the private interest (for comparison regarding shifting the balance where there was prosecution: MCA (Criminal) 10731/08, Mitzkin v. State of Israel, paragraph 17 (January 4, 2009)). And indeed, in this context one cannot dismiss the approach that retroactive publication of a criminal investigation that ended might also harm the reputation of the former suspect and establish his negative reputation in the eyes of those who believe that “where there is smoke there is fire” (see and compare: MCA (Criminal) 1071/10, Moshe v. State of Israel, paragraph 8 (February 25, 2010); MCA (Criminal) 5759/04, Turgeman v. State of Israel, Piskei Din [Judgments] 58 (6) 658, 570 (2004)).

3.On the other hand, a gag order prohibiting publication is the exception to the rule regarding public hearings and proceedings and precedent instructs that exceptions are only permitted under circumstances expressly listed in the Act (see MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). Accordingly, and in the absence of express authorization to the Court under the Act to prohibit publication of the name or investigation details concerning a former suspect, there is merit to the argument that a gag order granted during investigation under section 70(e1)(1) of the Act expires not only upon prosecution (according to the end of the section), but also when a decision not to prosecute is made and the investigation closed. Then the general rule is restored and the principle of public hearings and proceedings applies in full. That publication after a decision not to prosecute alleviates harm to the former suspect’s reputation because it is accompanied, naturally, by publishing the decision against prosecution supports this view (see Eitan Levontin “On the Authority to Limit Publication of Suspects’ Names”, Mishpatim 30, 249, 313-314 (5760)). In other words, contrary to publishing details about a suspect in the course of a criminal investigation where the suspect generally has limited tools to combat published suspicions, the mere decision not to prosecute provides the former suspect with a significant tool to protect his reputation from negative impact resulting from publication of an investigation that has ended. Since the gravity of potential harm to a former suspect’s reputation diminishes as a result of publication, the balance shifts toward the public interest in maintaining pubic hearings and proceedings and publication about an investigation and its details once closed should not be prevented. It goes without saying that according to this approach, the former suspect is still able to object by bringing defamation suits against any publication of distorted, partial, or misleading information about the investigation (see ibid).

Thus, this issue cuts both ways and though my opinion sways in favor of the second approach, I am not required to decide here and the statements that I have made in a nutshell do not exhaust the issue.

___________________

Decided in accordance with the judgment of Justice U. Vogelman.

Given today, February 24, 2013.

Full opinion:

Doe Co., Ltd. v. Doe.pdf

Link to original Hebrew text of decision on official ISC website:

Hammer v. Amit

Case/docket number:

CA 1326/07

Date Decided:

Monday, May 28, 2012

Decision Type:

Appellate

Topics:

Administrative Law

Judicial review

Basic Law: Human Dignity and Liberty

Family Law

Parenthood

Exemptions from liability

Breach of statutory duty

Compensation

Abstract:

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:

Rivlin, Eliezer

Primary Author

majority opinion

Beinisch, Dorit

Author

concurrence

majority opinion

Author

concurrence

Arbel, Edna

Author

concurrence

http://elyon1.court.gov.il/files/07/260/013/p34/07013260.p34.pdf

majority opinion

Rubinstein, Elyakim

Author

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.

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:

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?

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?

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?

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?

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.

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.

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.

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.

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.

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.

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.

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

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.

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).

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

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).

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.

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).

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.

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"

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.

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.

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.

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)).

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.

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

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.

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).

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.

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)).

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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.

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).

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.

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).

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)(.

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.

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)).

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

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.

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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)).

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.

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.

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.

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.

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.

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.

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

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.

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)).

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

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)).

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:

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.

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.

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.

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

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.

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.

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.

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)

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).

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:

Hammer v. Amit.pdf

Link to original Hebrew text of decision on official ISC website:

Gottesman v. Vardi

Case/docket number:

CA 1697/11

Date Decided:

Wednesday, January 23, 2013

Decision Type:

Appellate

Topics:

Communications

Basic Law: Human Dignity and Liberty

Right to Privacy

Contracts

Pre-Contractual Negotiation

Abstract:

The Second Appellant (hereinafter referred to as "Gottesman") is an architect who designed a unique dwelling (hereinafter referred to as "the house") for the Respondent (hereinafter referred to as "Vardi"). Gottesman asked to photograph the house in order to showcase it on his firm's website. Vardi refused. In addition, Gottesman published computer simulations of Vardi's house on the website without giving details that would identify the house owner. Vardi brought an action against Gottesman, pleading infringement of privacy. In his claim, Vardi referred to section 2(11) of the Law concerning "publishing any matter relating to a person's intimate life, including his sexual history, state of health or conduct in the private domain." The District Court allowed the claim and held that Vardi's privacy had been infringed as a result of the exposure of his house on the Internet and that Vardi's right of privacy superseded Gottesman's economic interest. A permanent injunction was therefore ordered restraining Gottesman and his firm from making any use of photographs or simulations showing Vardi's house. Hence the appeal.

The Supreme Court (per Justice U. Vogelman; Justice S. Joubran and Justice N. Sohlberg concurring) allowed the appeal partially on the following grounds –

The right of privacy is one of the most important human rights in Israel and since the Basic Law: Human Dignity and Liberty was passed, it is even vested with constitutional status. The prohibition of infringing privacy is currently embodied in the Protection of Privacy Law. Section 1 of the Law provides that "no person shall infringe the privacy of another without his consent." As has already been held, the definition of "privacy" is not simple. Section 2 of the Protection of Privacy Law prescribes what an infringement of privacy is. In his claim, Vardi referred to section 2(11) of the Law, which concerns "publishing any matter relating to a person's intimate life, including his sexual history, state of health or conduct in the private domain." The most relevant alternative herein is "publishing any matter relating to a person's intimate life" and also, to some extent, "publishing any matter relating to [a person's] conduct in the private domain."

The answer to the question of what is regarded as a matter relating to "a person's intimate life" is not simple, and the question is whether that expression also embraces publications relating to a person's home. A person's home is not one of those concrete matters that are mentioned in section 2(11) of the Protection of Privacy Law - "a person's state of health" and "his conduct in the private domain." Nevertheless, according to the Court, information concerning a person's home might, in certain situations, fall within the scope of "a person's intimate life." For the publication of information concerning a person's home to be construed as an infringement of privacy as defined in the Law, we must determine whether it is such as to cross that threshold of intimacy, after which it can be said that "a person's intimate life" has been infringed.

In the instant case, reviewing all the circumstances leads to the conclusion that publishing the simulations of the interior of Vardi's house does indeed involve infringement of "a person's intimate life." The interior of a person's home is one's castle, and one is entitled to be let alone in it. Inside a person's home one exercises one's right to privacy in the clearest form. A person therefore has a reasonable expectation that pictures of the interior of one's home will not be published at large without one's consent. In the instant case, studying the simulations of Vardi's home as published on the website shows that, despite the fact that they are computer simulations, the impression gained from them is very tangible. Although the simulations do show the house in a "sterile" condition, namely without Vardi's personal belongings appearing in them, the items of furniture in them are very similar indeed to the existing furniture; they expose "personal" spaces in the house, like the bedroom and bathroom; and they are such as to attest to Vardi's lifestyle and also demonstrate, in the words of the section, "his conduct in the private domain."

The simulations of the exterior of the home should be treated differently. Ordinarily, the front of a house is exposed to passersby. It is in the "public eye." Consequently, insofar as the front of a house is visible from the street, it is clear that showing its picture or simulation will not give rise to any infringement of privacy. The right of privacy does not extend to information that is already in the possession of the public. Therefore, when certain information is in any event in the public domain, the view that the right of privacy is not infringed is appropriate. Even if Vardi is correct in his plea that the simulations of the home's exterior show his house from angles that necessitate access to the grounds of the house, a photograph from "the public domain" is not involved. There is no question that portraying the front of a person's house in public does not give rise to an infringement similar in extent to that caused by displaying the interior of one's house. The front of a person's house does not have the same "intimacy" as characteristic of the intimate rooms of one's home. In that sense, the simulations of the home's exterior are not "information" that is sufficiently close to the nucleus of the interest protected by section 2(11) of the Law. In other words, publishing simulations of the home's exterior does not give rise to an infringement that might infringe "a person's intimate life."

The wording of section 2(11) of the Protection of Privacy Law shows us that in order for the publication of a matter to constitute an infringement of privacy, it has to be established that the information published makes it possible to identify a person. That is to say that insofar as a reasonable person would be unable to connect the information published with a specific person there will not be an infringement of privacy. In that connection it was explained that it is not necessary for a person's name or picture to appear alongside the publication; it suffices for it to be possible by some means to connect the information with a specific person by "reverse engineering." Clearly, such "reverse engineering" is mainly likely to occur when the information published includes clear and unique characteristics.

In the case herein the Court reached the conclusion that although Vardi's name is not mentioned in the publication, the simulations' publication is likely to make it possible to identify him by other means in view of those unique characteristics relating to Vardi's house that distinguish it from other houses.

Even if the information published does indeed relate to "a person's intimate life." the Protection of Privacy Law requires it to be established that the infringement was not of "no real significance." In this connection, it has to be shown that the infringement of privacy was not committed as a "trivial act." In the instant case, the publication of the simulations is not "a trivial act." The simulations tangibly show the interior of Vardi's home and in that way enable the public at large to gain an impression of the home owner's lifestyle and manners. There is no doubt that when any clear picture of a person's home is made visible, and especially the intimate rooms, the publication is likely to give him an intense feeling of discomfort. Such being the case, bringing the lawsuit herein seems, on the face of it, to be in good faith, and it is certainly not a frivolous or vexatious claim. However, that is not the case with regard to the publication of simulations of the front of the house. Even if publication of simulations of the home's exterior might cause some infringement, it is minor and trivial, in respect of which there is no cause for the grant of relief.

Another element necessary for the award of relief on a cause of infringement of privacy is negation of the existence of the circumstances of one of the defenses prescribed in section 18 of the Law. Nevertheless, a party seeking shelter behind those defenses must show that he acted in good faith. Good faith is "like a gate and only if it is traversed will the circumstances in which the specific infringement of privacy was committed be examined." It is therefore necessary to prove that the person committing the infringement acted in the belief that the infringement was in the scope of the defenses prescribed by the Law. In order to prove good faith, the defendant or accused can have recourse to the presumption mentioned in section 20(a) of the Protection of Privacy Law – that the infringement of privacy was committed under any of the circumstances referred to in section 18(2) and that it did not exceed the limits reasonable under those circumstances. Against that presumption that is available to the defendant or accused, the plaintiff or prosecutor can have recourse to the presumption mentioned in section 20(b) of the Law and establish that the publisher knew that he had exceeded the reasonable.

In this case, Gottesman relied on two defenses – those prescribed in sections 18(2)(a) and (c). As regards the defense prescribed in section 18(2)(a) of the Law, since Vardi made it perfectly clear to Gottesman that he strongly objected to publication without the latter signing the undertaking, it is difficult to conceive that the infringement was committed without Gottesman knowing "that an infringement of privacy might occur," as required by the section. It is therefore clear that the plea in respect of the defense under that section cannot be upheld. As regards the defence under section 18(2)(c), relating to an infringement committed in defense of "a legitimate personal interest" of the infringer, the section necessitates a balance be struck between the right of privacy and other conflicting values, and the expression "legitimate personal interest" should be construed "by striking a balance between the desire to protect the interest of the injured party and safeguard his privacy, on the one hand, and the contrary interests of the infringer, on the other hand." In the instant case, on the artistic-creative level, one can understand Gottesman's desire to expose Vardi's house to the public, a work that is unquestionably of unique quality and size. In addition, there is nothing wrong with Gottesman's desire to publicize his work for economic reasons as well, because displaying the work might certainly enable its author to establish goodwill and attract clients. In the overall balance between the competing rights and interests, the Court reached the conclusion that it is inappropriate to apply the defense of section 18(2)(c) to publishing simulations of the interior of Vardi's house.

The Protection of Privacy Law provides that an infringement of privacy will not occur where there is consent to the infringement (section 1). To be precise, consent is not cause that justifies an infringement of the rights of privacy. Consent itself is an inherent part of the right, so that if it is given, a right of action does not arise. Consent can be express or implied, but it is best to exercise extreme care in determining that consent to publication has been obtained. Along those lines it was held that from the fact that an individual agreed to disclose certain particulars to one person or several persons, it cannot be inferred that he is precluded from objecting to the publication of those particulars to the public at large. In the instant case, it appears that such consent was not consummated. No substance was found in the plea that Vardi's agreeing to the publication of other pictures of the house suggests that implied consent was also given to Gottesman. Actually, the fact that other publications were specifically made subject to signing an undertaking, which was ultimately not signed in the instant case, demonstrates the absence of consent herein.

From the aforegoing it emerges that publishing the simulations showing the front of the house does not give rise to an infringement of privacy and in any event not an infringement of real significance, as defined in section 6 of the Protection of Privacy Law. On the other hand, the simulations showing the interior of the house do infringe "his intimate life" and despite their anonymous publication, it is possible to connect them with the Respondent. It was also found that it is not an infringement "of no real significance," and the defenses prescribed in section 18(2) of the Protection of Privacy Law are inapplicable. Consequently, because the infringement of the Respondent's privacy was made without his consent to the publication, there is no alternative but to find that publication of the simulations of the interior of his home on the website cannot be permitted. The appeal is therefore allowed in part, to the effect that the injunction remains in force with respect to publishing simulations of the home's interior on the website. In other words, there is no bar to publishing simulations of the home's exterior on the site. In view of that result, the liability for costs at first instance was set aside and no order for costs was made in the instant proceedings.

Justice N. Sohlberg concurred in the aforegoing and added from Jewish law with regard to the distinction between the front of the house and its interior.

Voting Justices:

Vogelman, Uzi

Primary Author

majority opinion

http://elyon1.court.gov.il/files/11/970/016/m16/11016970.m16.pdf

majority opinion

Sohlberg, Noam

Author

concurrence

Full text of the opinion:

In the Supreme Court

Sitting As a Court of Civil Appeals

CA 1697/11

Before:	His Honor, Justice S. Joubran His Honor, Justice U. Vogelman His Honor, Justice N. Sohlberg


The Appellants:	1. A. Gottesman Architecture Ltd 2. Asaf Gottesman

v.

The Respondent:	Arie Vardi

Appeal against the judgment of the District Court of Tel Aviv-Jaffa (Her Honor Judge A. Baron) of January 17, 2011 in CF 1222/09

On behalf of the Appellants:	Adv. Hillel Ish-Shalom, Adv. Roy Kubovsky, Adv. Guy Lotem

On behalf of the Respondent:	Adv. Eran Presenti

JUDGMENT

Justice U. Vogelman

An architect designed a unique house for a client and asked to photograph it in order to show it on his firm's website. The client refused. The architect published computer simulations of the client's house on the website, without giving details identifying the owner of the house. Does this case give rise to an infringement of privacy? That is the question that faces us.

The Main Facts and Proceedings

1. The Second Appellant (hereinafter referred to as "Gottesman") is an architect who heads a firm of architects. At the beginning of the year 2000 the Respondent (hereinafter referred to as "Vardi") commissioned Gottesman's services for the latter to design his residence for him. The parties do not dispute the fact that the project was one of a kind and a house was ultimately built that was exceptional as regards its size, the type of materials used in its construction and its unique design. Despite the extensive scale of the project, no written agreement was ever made between Vardi and Gottesman, either with regard to the commissioning of the architectural work or concerning the possibility of documenting and photographing the building for Gottesman's purposes.

2. Even before the construction was completed, Gottesman asked Vardi to photograph his house, as was his firm's practice. Vardi, for his part, made the photographs conditional upon Gottesman and the intended photographer signing a letter of commitment in respect of the photographs' use. According to the wording proposed by Vardi, Gottesman and the photographer would be obliged to apply to him in writing whenever they wanted to make use of the pictures and obtain his express consent. The two were also required to undertake to pay Vardi agreed damages without proof of loss for any breach of that undertaking: Gottesman - $500,000 and the photographer - $50,000 (hereinafter referred to as "the letter of commitment"). Gottesman asserted that the letter of commitment that Vardi proposed was a new requirement that was contrary to a previous understanding between the parties in respect of photographing the house. Vardi, on the other hand, expressed anger at the fact that Gottesman categorically denied the importance of protecting his privacy. No agreement was ultimately made between the parties and in the absence of any understanding, professional photographs of Vardi's house were not taken.

To complete the picture, it should be noted that at the relevant time photographs of Vardi's house were published in two places: firstly, pictures of the house exterior were published in a book that was printed in hundreds of copies, published by Apex Ltd (hereinafter referred to as "Apex"), which had installed windows and shutters in Vardi's house; secondly, pictures were published on the website of the carpenter who had done carpentry work in Vardi's house. Both Apex and the carpenter had signed a letter of commitment in favour of Vardi with regard to using pictures of his house in terms similar to those that Gottesman had been asked to sign.

3. Since Gottesman had not been permitted to photograph Vardi's house he commissioned the services of a studio that specialised in the creation of computer simulations in order to create an artificial simulation of the architectural work in Vardi's house. Those simulations, which look very similar to actual photographs, were published on the website of Gottesman's firm (hereinafter referred to as "the website"). There were no details identifying the owner of the house or its address alongside the pictures. After Vardi discovered that the computer simulations had found their way onto the website, he filed a lawsuit in the Tel Aviv Magistrates Court against Gottesman and his firm, in which he applied for a permanent injunction restraining them from making any use of photographs or simulations showing his house. At the same time as bringing the action, a motion was also filed for the provisional relief of removing the simulations from the website. An order prohibiting publication of the existence of the legal proceedings, including any identifying detail in respect of any of the parties to the action, was also sought. On November 11, 2008, during a Magistrates Court hearing of the motion for provisional relief, the parties reached an understanding with regard to publicising Vardi's house on the website until the motion for provisional relief is heard on its merit. In that understanding it was provided that the simulations would be removed from the website and other pictures of the house, which had already been published in the Apex book with Vardi's consent, would be published instead (hereinafter referred to as "the procedural arrangement"). On September 24, 2008 the Court (Her Honour Judge Z. Agi) allowed the application for the award of an interim gag order. Nevertheless, the Court ordered the trial to be remitted to the Tel Aviv District Court because it was found that the relief sought in the action was within its residual jurisdiction since it was an application for a permanent mandatory order incapable of financial quantification. Both the procedural arrangement and the gag order remained in force during the trial of the action.

The Judgement of the Lower Court

4. The District Court (Her Honour Judge A. Baron), to which the trial was remitted, allowed Vardi's claim and held that his privacy had been infringed as a result of the exposure of his home on the Internet. It was held that although the simulations did not include personal belongings or intimate items, they did make it possible to obtain an impression of the lifestyle in the house, the habits of its occupants and their financial position. On the other hand, the Court dismissed the plea that removing the simulations would infringe the freedom of occupation and intellectual property rights of Gottesman and his firm. Consequently, against the infringement of Vardi's privacy, the Court weighed the harm to the economic interest that Gottesman and his firm would sustain, if they could not use the simulations in order to attract potential clients. In balancing them, the Court held that Vardi's right of privacy outweighed Gottesman's economic interest. Alongside that, the Court held that Vardi had not expressly or impliedly agreed to publication of the pictures or simulations. It was found that even if there had been talk between the parties about publishing pictures of the house in some or other framework, no express agreement had been reached to take and publish photographs. It was also held that there was no implied agreement to publishing the pictures. Amongst other things, the Court declined to treat the working relationship between Gottesman and Vardi or the fact that Gottesman had designed and planned the house as implied consent to the use of the simulations. It was further held that Vardi's agreeing to allow Apex and the carpenter to make certain use of photographs did not constitute implied agreement to similar use by Gottesman. Finally, the Court stated that even had Vardi's agreement been obtained, the agreement was unenforceable by virtue of section 3 of the Contracts (Remedies for Breach of Contract) Law, 5731-1970. A permanent injunction was therefore awarded restraining Gottesman and his firm from making any use of photographs or simulations showing Vardi's house, and the procedural arrangement that the parties had reached was annulled/rescinded. The sweeping gag order in the case was also removed and replaced by a mere prohibition of publishing the evidence.

The Parties' Arguments on Appeal

5. In the appeal herein Gottesman and his firm reiterated their assertion that they should be permitted to publish the simulations on the website. At the outset, the Appellants dispute the lower court's finding that showing the computer simulations infringes "the privacy of a person's intimate life", within the meaning of the definition in section 2(11) of the Protection of Privacy Law, 5741-1981 (hereinafter referred to as "the Protection of Privacy Law" or "the Law"). Firstly, it was pleaded that showing the computer simulations of a house without specifying details identifying the owner cannot be construed as an infringement of privacy as defined in the Protection of Privacy Law. According to the Appellants, in order to prove an infringement of privacy as a result of the information published, it has to be shown that a link can be made between the information and a specific "person". In the instant case, it was argued, the computer simulations were shown in a "sterile" state, based on the planning position before the occupants entered the house and while making certain modifications. Alongside that, it was asserted that in any event there was no infringement of "the privacy of a person's intimate life" because the section relates to highly intimate information, such as a person's sexual proclivity or state of health. The same goes all the more so, according to the Appellants, in respect of the simulations that show the outside of the house and the spaces designated for hospitality. In the alternative, the Appellants plead that even if an infringement of privacy was caused, it did not give rise to a cause of action since it is a minor infringement "of no real significance", as defined in section 6 of the Protection of Privacy Law, because the simulations were published anonymously, without specifying personal details.

6. Even if there was an infringement of Vardi's privacy, the Appellants plead that the defence of good faith applies in the circumstances prescribed in the Protection of Privacy Law. In particular, it was pleaded that the Appellants did not imagine that the publication would infringe Vardi's privacy and they are therefore entitled to the defence prescribed in section 18(2)(a) of the Law ("he did not know and need not have known that an infringement of privacy might occur"). It was further pleaded that the publication was intended to serve Gottesman's moral right to obtain fitting credit for his work, which he has by virtue of an architect's copyright in his work (section 4 of the Copyright Law, 5768-2007 (hereinafter referred to as "the Copyright Law")). According to the Appellants, this entitles them to the defence under section 18(2)(c) of the Protection of Privacy Law ("the infringement was committed in defence of a legitimate personal interest of the infringer") because, according to them, the moral right should enable the architect to publish computer simulations of his work.

7. The Appellants further argue that it was inappropriate for the lower court to find that the element of "absence of consent" necessary to establish an infringement of privacy had been fulfilled. The Appellants first protest the finding that Vardi's consent was necessary in this context. Such consent, according to them, would only be necessary if Gottesman had sought to enter Vardi's house and photograph it in the private domain. However, they assert, it is unnecessary to obtain consent when involved is the use of the architectural plans and simulations created on the basis of them. Secondly, they argue, Vardi had originally agreed to the house being photographed and in any event his implied agreement to publishing the simulations could be inferred from the agreement that he had given to publish pictures of the house in the Apex book and on the carpenter's website, and also from the principle agreement to the procedural arrangement. Therefore, the Appellants maintained, Vardi's attempts to procure Gottesman's signature to the letter of commitment should be construed as an attempt contrary to a previous understanding between the parties. Such being the case, it should be held that Gottesman's refusal to sign the said document is irrelevant. Finally, the Appellants argue that it should be presumed that had Vardi wished to limit the use of the work, he would have done so from the outset in an express agreement.

8. Vardi, for his part, endorses the lower court's ruling. According to him, publishing the simulations on the website constitutes an infringement of his and his family's privacy. According to Vardi, the fact that simulations, rather than actual pictures, were published on the website was aimed at circumventing the Protection of Privacy Law because the simulations show the house almost exactly as it really is and it is easy to link them with it. In view of that, Vardi seeks to adopt the District Court's finding that publishing the simulations on the website should be treated as publication of a matter relating to a person's "intimate life", as provided in section 2(11) of the Protection of Privacy Law and it therefore involves an infringement of privacy. According to Vardi, the Appellants cannot benefit from the defences prescribed in the Law: as regards the defence under section 18(2)(a) of the Law, which deals with the absence of knowledge of an infringement of privacy, it is asserted that Vardi emphasised to Gottesman that he jealously guards his privacy, and his attorney also demanded that the Appellants remove the pictures from the website immediately; as regards the defence under section 18(2)(c) of the Law, it was pleaded that the Appellants were not protecting a "legitimate personal interest" by publishing the simulations but merely sought to produce an economic gain. In any event, Vardi argued, the essential requirement of good faith to establish the said defences was not fulfilled in the present case because the Appellants had failed to remove the pictures at his request.

9. Furthermore, according to Vardi, the case herein does not give rise to a clash between copyright law and protection of privacy law. An architect, according to Vardi, has no copyright in a house that was built but at most in the two-dimensional plans of the house and even those, it is argued, cannot be published by the architect without the client's consent. Consequently photographing the house and circulating the photographs, including by way of simulations, is not an inherent right of the architect. Even were copyright involved, Vardi asserts, it is an economic right which does not supersede the right to privacy. In this context, Vardi emphasizes that the lower court was not moved to award relief that would preclude the Appellants from showing the project to customers and in professional circles; instead an injunction restraining publication at large, on the Internet, or in a book or magazine, was sought. Such being the case, according to Vardi, the Appellants' freedom of occupation or copyright was not infringed. Finally, Vardi maintains that the plea of copyright infringement was merely made by Gottesman incidentally and in an unspecified manner at the trial in the lower court and it is therefore a prohibited "amendment of pleadings" on appeal.

10. The parties also took issue with regard to the formation of consent to publish the simulations. Vardi asserts that his agreement to the publication of the simulations was not obtained. According to him, during the years of the relationship between the parties, his confidence in Gottesman had lessened and he had therefore chosen to ask for any understanding in respect of photographing his house and using the pictures to be put in writing. A written undertaking along those lines did not come about and, such being the case, according to Vardi, no agreement was consummated between the parties in respect of publication. In that connection Vardi rejects the Appellants' argument that agreement to publication could be inferred from the procedural arrangement that the parties reached or from the agreement that was given to the carpenter and Apex for publication. According to him, a person is entitled to control his privacy so that consent to waive privacy should be made knowingly and expressly.

The Procedural Progression

11. On April 2, 2012 we had an appeal hearing in the presence of the parties before a bench headed by the (now retired) Deputy President, Justice E. Rivlin. At the hearing we believed that it would be best for the dispute between the parties to be resolved in mediation. The parties accepted our proposal and agreed to go to mediation. Unfortunately, the mediation did not prove successful and the parties notified us on July 27, 2012 that they had not reached an overall understanding. Prior thereto, in May 2012, the Deputy President retired and he was replaced by my colleague, Justice N. Solberg (as decided by the President, A. Grunis on August 13, 2012). In view of the change to the bench since the hearing, the parties were permitted to supplement summations in writing. The time for a ruling has now been reached.

Discussion and Ruling

The Right to Privacy

12. The right to privacy is one of the most important human rights in Israel. It is one of the freedoms that mould the character of the regime in Israel as a democratic one (HCJ 6650/04 Jane Doe v. The Netanya Regional Rabbinical Court, para 8 (May 14, 2006) (hereinafter referred to as "Jane Doe")). Since the Basic Law: Human Dignity and Liberty was passed, it is even vested with constitutional status (section 7 of the Basic Law). Privacy enables a person to develop his selfhood and to determine the degree of society's involvement in his personal behaviour and acts. It is his "proprietary, personal and psychological castle" (Crim. App. 5026/97 Gilam v. State of Israel, para 9 (June 13, 1999) (hereinafter referred to as "Gilam")). The right to privacy therefore extends the line between the private and the public, between self and society. It draws a domain in which the individual is left to himself, to develop his "self", without the involvement of others (HCJ 2481/93 Dayan v. The Jerusalem District Commander, PD 45(2) 456, 471 (1994) (hereinafter referred to as "Dayan"). It "embodies the individual's interest not to be bothered by others in his intimate life" (CA 8825/03 Clalit Health Services v. The Ministry of Defence, para 21 (April 11, 2007)).

Infringement of Privacy – Section 2(11) of the Protection of Privacy Law

13. The prohibition of infringing privacy is currently embodied in the Protection of Privacy Law. Section 1 of the Law provides that "no person shall infringe the privacy of another without his consent". As has already been held, the definition of "privacy" is not simple (HCJ 6824/07 Manna v. The Tax Authority, para 34 (December 20, 2010); CA 4963/07 Yediot Aharonot Ltd v. John Doe, para 9 (February 27, 2008) (hereinafter referred to as "Yediot Aharonot")). Section 2 of the Protection of Privacy Law prescribes what an infringement of privacy is. In his claim, Vardi referred to section 2(11) of the Law, which concerns "publishing any matter relating to a person's intimate life, including his sexual history, state of health or conduct in the private domain". Of the three alternatives mentioned in the section, the most relevant herein is "publishing any matter relating to a person's intimate life" and also, to some extent, "publishing any matter relating to [a person's] conduct in the private domain". In order to delineate the expression "any matter relating to a person's intimate life", two matters should be clarified: firstly, what is a matter relating to a person's "intimate life"; and secondly, whether the information published indeed makes it possible to identify a "person".

(a) A Person's Intimate Life

14. Firstly, as regards the expression "a person's intimate life": what can fall within that definition? "Intimate life" is also a vague expression, the boundaries of which are unclear (Eli Halm, Protection of Privacy Law, 148 (2003) (hereinafter referred to as "Halm")). It is therefore clear that the answer to the question as to what will be regarded as a matter relating to "a person's intimate life" is not plain and simple and that "like many expressions that we encounter in the law books and ordinary life, their interpretation depends on the context and the purpose for which the interpretation is needed (see and compare the opinion of Justice T. Strasburg-Cohen in CA 439/88, The Registrar of Databases v. Ventura, PD 48(3) 808, 835 (1994) (hereinafter referred to as "Ventura"); also compare the opinion of Justice G. Bach in the same case, p 821). In this respect I would mention that I do not accept the interpretation that a high threshold of intimacy needs to be crossed – for example matters relating to a person's sexual history – in order to establish infringement of "a person's intimate life". That interpretation, which Gottesman propounded, relies on the fact that section 2(11) provides that infringement of privacy is "publishing any matter relating to a person's intimate life, including his sexual history" (emphasis added – UV). However, studying the legislative history of the Protection of Privacy Law indicates that the ending, after the word "including", was added to the section merely to clarify that "a person's sexual history" is also a matter relating to his "intimate life" (see the Explanatory Notes on the Draft Protection of Privacy (Amendment No. 8) (Prohibition of Publishing a Matter of Sexual History) Law, 5766-2005). In that sense the addendum is merely to clarify and elucidate (see ALA 2985/96 Medalsi v. Goni PD 50(2) 81, 86 (1996). See also: Aharon Barak, Legal Interpretation, Volume II, Legislative Interpretation 137-138 (1993)).

15. Having said all that, the first issue to clarify is whether the phrase "a person's intimate life" also embraces publications concerning a person's home. A person's home is not one of those concrete matters that are mentioned in section 2(11) of the Protection of Privacy Law – "a person's state of health" and "his conduct in the private domain". Nevertheless, information relating to a person's home might certainly fall within the scope of "a person's intimate life". Indeed, a person's home gains a place of honour in the case law relating to privacy. Thus, for example, in Dayan, His Honour the Deputy President (as he then was) A. Barak held that:

"The constitutional right to privacy extends, inter alia […] to a person's right to conduct the lifestyle that he wants in his own home, without interference from outside […] The right to privacy is therefore intended to ensure that a person will not be a prisoner in his own home and will not be forced to expose himself in his own home to interference that he does not want" (ibid, p 470; see also Jane Doe, para 10; Gilam, para 9).

Nevertheless, as I see it, these statements are not to be understood literally as relating merely to the physical aspect of the home. As President A. Grunis noted in respect of the statement cited above from Dayan, "it should be understood more broadly, metaphorically, along the lines of the expression coined by Warren & Brandeis, 'the right to be let alone'" (HCJ 8070/98 The Association for Civil Rights in Israel v. Ministry of the Interior PD 58(4) 842, 856 (2004); see also Yediot Aharonot, para 9). It should therefore be said that information relating to a person's home will not necessarily always be included in the scope of the matters concerning a "person's intimate life". For the publication of information relating to a person's home to be construed as an infringement of privacy, as defined in the Law, it is necessary to see whether it is such as to cross that threshold of intimacy, beyond which it may be said that "a person's intimate life" was infringed. In the instant case, reviewing all the circumstances leads to the conclusion that publishing the simulations of Vardi's house interior does indeed involve infringement of "a person's intimate life". The interior of a person's home is his castle and he is entitled to be let alone in it. Inside a person's home he exercises his right to privacy in the clearest form. A person therefore has a reasonable expectation that pictures of the interior of his home will not be published at large without his consent. In the instant case, studying the simulations of Vardi's home as published on the website shows that, despite the fact that they are computer simulations, the impression gained from them is very tangible. In this respect I accept the findings of the trial instance that "since the simulations show Vardi's house as it really is, it matters not whether they are the result of computer work or a camera" (p 13 of the lower court's judgement). And note, although the simulations do show the house in a "sterile" condition, namely without Vardi's personal belongings appearing in them, the items of furniture in them are very similar indeed to the existing furniture; they expose "personal" spaces in the house, like the bedroom and bathroom; and they are such as to attest to Vardi's lifestyle and also demonstrate, in the words of the section, "his conduct in the private domain".

16. The simulations of the house exterior should be treated differently. Ordinarily, the front of a house is exposed to passers-by. It is in the "public eye". Consequently, insofar as the front of a house is visible from the street, it is clear that showing its picture or simulation will not give rise to any infringement of privacy (see also CF (J'lem District) 7236/05 Levin v. Ravid Stones, para 14 (May 15, 2006)). The right of privacy does not extend to information that is already in the possession of the public. Therefore, when certain information is in any event in the public domain, the view that the right of privacy is not howsoever infringed is appropriate. (For similar statements in American law, see Jackson v. Playboy Enterprises, Inc., 547 F. Supp. 10, 13 (S.D. Ohio 1983); Fry v. Ionia Sentinel-Standard, 101 Mich. App. 725, 731 300 N.W. 2d 687 (Mich. Ct. App. 1980); Reece v. Grissom, 154 Ga. App. 194, 196, 267 S.E.2d 839 (Ga. Ct. App. 1980). See also David A. Elder, Privacy Torts 3-45, 3-44 (2002) (hereinafter referred to as "Elder"); James A. Henderson, Richard N. Pearson and John A. Siliciano, The Torts Process 930-31 (4th ed. 1994).)

17. According to Vardi, a distinction should be made between the situation described above, in which the front of the house as visible from the street is shown, and the simulations published by Gottesman on the website. Vardi asserts that the simulations of the house exterior that Gottesman posted on the website of his firm show the house from an angle that necessitates access to the grounds of the house, from which passers-by cannot obtain an impression of it. In that sense, Vardi pleads, a photograph from "the public domain" is not involved. Even if Vardi is right in that plea, there is no question that portraying the front of a person's house in public does not give rise to an infringement similar in extent to that caused by displaying the interior of his house. Whilst the interior of a person's house is visible only to his invited guests, the front of his house is less "private". The front of a person's house does not have the same "intimacy" that is characteristic of the intimate rooms of his home. In that sense, the simulations of the house exterior are not "information" that is sufficiently close to the nucleus of the interest protected by section 2(11) of the Law. Hence, whilst the simulations that portray the internal spaces of the house might infringe "a person's intimate life", publishing simulations of the house exterior does not give rise to such an infringement.

(b) "A Person's" – the Requirement of Identification

18. The wording of section 2(11) of the Protection of Privacy Law shows us that in order for the publication of a matter to constitute an infringement of privacy, it has to be established that the information published makes it possible to identify a person. When can it be said that information published does indeed make it possible to identify a person so that an infringement of privacy does arise? Essentially, it appears that the answer is that an infringement of privacy will not arise where the requirement of "identification" is not fulfilled, namely insofar as a reasonable person would be unable to connect the information published with a specific person. On this point I would immediately clarify, ex abundanti cautela, that we might in future come across cases in which it will be possible to consider making that requirement more flexible. Those will be the exceptions in which particularly sensitive information is published to the point that even if it cannot be connected with someone, the very publication will create in the one to whom the information relates a serious sense of his privacy's violation, so that its protection will be justified. We shall leave discussion of such matters for when they arise since that is not the case herein.

19. In order to comprehend the nature of the identification requirement, recourse may be had, by way of analogy, to defamation law that we can use as an aid to interpretation and source of inspiration (see CA 723/74 Haaretz Newspaper Ltd v. The Israel Electric Corporation Ltd, PD 31(2) 281, 293 (1977); Dan Hay, The Protection of Privacy in Israel, 91-97 (2006) (hereinafter referred to as "Hay") and the references there). This is because in many senses an infringement of privacy is similar to the damage caused to reputation as a result of publishing defamatory information. Even before the enactment of the Defamation Law, 5725-1965 (hereinafter referred to as "The Defamation Law"), this Court insisted that in a claim on a cause of defamation it has to be established that the focus of the publication is a specific person. It was therefore held that the plaintiff on such a cause will be obstructed by the fact that he cannot be identified in the picture that was published (CA 68/56 Rabinowitz v. Mirlin PD 11 1224, 1226 (1957)). This requirement was intensified after the Defamation Law was enacted. Indeed, a question similar to that facing us was considered at length in the context of defamation law in CA 8345/08. Ben Nathan v Bachri (July 27, 2011) (hereinafter referred to as "Jenin Jenin "). In that case the Court considered the criteria whereby it could be held that defamation addressed at a group defames its members (ibid, para 18). The Court held in that case that "[…] For cause to arise to take proceedings in respect of the publication of defamation it has to be shown that it relates to an individual or certain individuals and when the proceedings are taken by the injured party, he must show that the statement relates to him" (ibid, para 32. Emphasis added – UV). What is important with respect to the instant case is that the inference was drawn, inter alia, from the fact that the section of the relevant statute (section 1 the Defamation Law) provides – as in the case herein – that the subject of the statement must be a "person" (ibid).

20. By way of comparison, in American law a similar criterion is also accepted in respect of the infringement of privacy. According to the case law there, the requirement of identification has been recognised as an essential one that confronts anyone seeking to assert the infringement of his privacy. Such being the case, where the plaintiff's image or name was not used, the courts in the USA have held that in practice no infringement of privacy arises (see: Branson v Fawcett Publications, 124 F. Supp. 429, 431-32 (E.D. III 1954); Rawls v. Conde Nast Publications, Inc. 446 F. 2d 313, 318 (5th Cir. 1971) (hereinafter referred to as "Rawls"). See also: Elder, pp 3-40). Consequently, as regards publications such as a photo of a person's house, car, dog or more, that are made without mention of some or other person's name, it has been held that they do not constitute an infringement of privacy, even if subjectively a person feels that his privacy has been infringed (Rawls, ibid; Samuel H. Hofstadter and George Horowitz, The Right of Privacy, 44 (1964)).

21. From the aforegoing it prima facie appears that it suffices for the information published to be shown anonymously in order to avoid the possibility of infringing privacy. However, in this respect it should be taken into account that even information that is shown anonymously might establish a connection with a specific person. In other words, even if the name of the person is not expressly mentioned alongside the information, it has to be ensured that he cannot be identified by other means, for example: if in the publication numerous identifying details are given from which it might be possible to deduce with whom the publication is dealing (see: Hay, p 115). If we treat the prohibition as merely the specification of a person's name, "it would make a mockery of the Law because it is enough to mention numerous identifying details in order to make it clear in many cases who is involved" (Zeev Segal, The Right of Privacy against the Right to Know, Iyunei Mishpat IX 175, 190 (1983) (hereinafter referred to as "Segal)). As held in Jenin Jenin, "the requirement of identification is substantive, rather than technical. The question is not whether the name of a person is expressly mentioned in the statement published […] The requirement of identification will be fulfilled in those cases where what is published is attributable to the individual who asserts damage implied from the publication or as a result of extrinsic circumstances or a combination of the publication and the extrinsic circumstances" (ibid, para 34).

22. In order to analyse whether it is possible to connect a person with particular information, a criterion of "de-anonymising" has been proposed in the literature. According to the criterion, if anyone has a key that will make reverse engineering possible, namely to attribute the information published to a particular person, then it can be said from the outset that the information is identifying (Michael Birnhack, Private Space – Privacy, Law & Technology, 191-193 (2010)). As aforesaid, it is therefore not necessary for a person's name or picture to appear alongside the publication; it suffices for it to be possible by some means to connect the information with a specific person by "reverse engineering". Clearly, such "reverse engineering" is mainly likely to occur when the information published includes clear and unique characteristics (cf: Motschenbacher v RJ Reynolds Tobacco Co., 498 F.2d 821, 827 (9th Cir. 1974)).

23. In the instant case, is the requirement that the publication deal with a "person" fulfilled? To that end it is necessary to substantiate the conclusion that despite the anonymous publication of the simulations on the Gottesman website, they can be linked with Vardi. In the case herein we have reached the conclusion that although Vardi's name is not mentioned in the publication, the simulations' publication is likely to make it possible to identify him by other means in view of those unique characteristics relating to Vardi's house. As the lower court held, Vardi's house is a "project of a unique type". In this connection the lower court described Vardi's house as "spectacular and extraordinary as regards its size, the type of materials used in its construction, its unique design and also as regards the investment in each one of the architectural details that make it up". Gottesman himself attested to the project as a "one-off project" and in his appeal he described the house as "a spectacular, extravagant and extraordinary residence […] one of the largest houses in Israel and the largest designed by the Appellants". On the Gottesman website the unique design of the house is described as including the use of special materials like blue glass, unique metal, illuminated gardens and more. All these constitute distinctive construction characteristics that distinguish Vardi's house from others. These indicate that Vardi's house is unlike any other; it is an extraordinary, unique work of architecture. In view of that, it appears that recourse may be had to the simulations published on the Gottesman website for the purpose of that "reverse engineering" that will make it possible to deduce that the simulations shown on the website in fact simulate Vardi's house.

Section 6 of the Protection of Privacy Law –Infringement of No Real Significance

24. Even if the information published does indeed relate to "a person's intimate life", the Protection of Privacy Law requires it to be established that the infringement was not of "no real significance" (section 6 of the Protection of Privacy Law). In this connection, it has to be shown that the infringement of privacy was not done as a "trivial act" because such an infringement vests no right to relief (The Association for Civil Rights, p 863). The intention of the section is to do away with vexatious lawsuits, in respect of which no reasonable person would take the trouble of going to court (cf section 4 of the Civil Wrongs Ordnance [New Version]; see also CF (TA Magistrates) 199509/02 Tzadik v. Haaretz Newspaper Publishing Ltd, para 10 (January 22, 2014); Hay, p 124).

25. In the instant case, the publication of the simulations is not "a trivial act". The simulations that appeared on the Gottesman website tangibly show the interior of Vardi's home and in that way enable the public at large to gain an impression of the home owner's lifestyle and manners. There is no doubt that when any clear image of a person's home is made visible, and especially his intimate rooms – the bedroom, bathroom etc. – the publication is likely to give him an intense feeling of discomfort. The nature of those rooms is that they are concealed from the eye, and usually from the eyes of invited guests as well. That is where a person expects more than anything that he will be secluded from the public eye. Such being the case, bringing the lawsuit herein seems to be in good faith on the face of it and it is certainly not a frivolous or vexatious claim. It is such as to express the deep sense of discomfort caused to Vardi by the publication – which to my mind also has objective foundation in the circumstances. However, that is not the case with regard to the publication of the simulations of the front of the house. As I mentioned above, in that connection I tend to believe that even if publication of the simulations of the house exterior might cause some infringement, it is minor and trivial, in respect of which there is no cause for the grant of relief.

Defences to a Plea of Privacy Infringement (Section 18 of the Law)

26. Another element necessary for the award of relief on a cause of infringement of privacy is negation of the existence of the circumstances of one of the defences prescribed in section 18 of the Law. Those defences demonstrate that the Protection of Privacy Law does not make the right of privacy an "absolute" one (CA 1928/93 The Securities Authority v. Gibor Sabrina Textile Enterprises Ltd, PD 49(3) 177, 193 (1995)). The defences prescribed in the Law might therefore bar a civil claim or criminal proceedings in respect of the infringement of privacy. Nevertheless, a party seeking to shelter behind those defences must show that he acted in good faith. Good faith is "like a gate and only if it is traversed will the circumstances in which the specific infringement of privacy was committed be examined" (Gilam, para 8). It should be noted that the case law has interpreted this as a requirement of subjective good faith. It is therefore necessary to prove that the person committing the infringement acted in the belief that the infringement was in the scope of the defences prescribed by the Law (Jane Doe, para 24). In order to prove good faith, the defendant or accused can have recourse to the presumption mentioned in section 20(a) of the Protection of Privacy Law, according to which:

"20. (a) Where the accused or defendant proves that he committed the infringement of privacy under any of the circumstances referred to in section 18(2) and that it did not exceed the limits reasonable under those circumstances, he shall be presumed to have committed it in good faith."

In this connection the court will review "the form, substance and extent of the publication in order to see whether the publisher has fulfilled his duty, for which the defence extends to him, or went beyond that and exceeded the 'limits reasonable' in connection with which the legislative norm was framed" (Segal, p 199).

Against that presumption that is available to the defendant or accused, the plaintiff or prosecutor can have recourse to the presumption mentioned in section 20(b) of the Law:

"20. (b) The accused or defendant shall be presumed not to have committed the infringement of privacy in good faith if in committing it he knowingly went further than was reasonably necessary for the purposes of the matters protected by the section."

In this respect, proving that the publisher knew that he had exceeded the reasonable is equivalent to establishing the absence of the publisher's subjective good faith because it will demonstrate "his indifference to the consequence involving infringement more than necessary to protect the value recognised by the Law" (Segal, ibid).

27. In his appeal Gottesman relied on two defences – those prescribed in sections 18(2)(a) and (c), which provide as follows:

"18. In any criminal or civil proceedings for infringement of privacy, it shall be a good defence if one of the following is the case:

[…]

(2) the defendant or accused committed the infringement in good faith in any of the following circumstances:

(a) he did not know and need not have known that an infringement of privacy might occur;

[…]

[…]"

28. We shall therefore review whether the infringing act was committed in one of the circumstances mentioned in section 18(2) – and in our case, the circumstances prescribed in section 18(2)(a) or 18(2)(c) of the Law. As regards the defence prescribed in section 18(2)(a) of the Law, as the lower court held, before publication Vardi repeatedly emphasised to Gottesman that he jealously guarded his privacy and he was resolute in his refusal to publicise the house or parts of it. Consequently, from such time as Vardi made it perfectly clear to Gottesman that he strongly objected to publication without the latter signing the letter of commitment, it is difficult to conceive that the infringement was committed without Gottesman "knowing […] that an infringement of privacy might occur", as the section requires. Clearly, therefore, the plea with regard to the defence under that section cannot be upheld.

29. We should now examine whether Gottesman has available the defence under section 18(2)(b), which concerns an infringement committed in order to protect a "legitimate personal interest" of the infringer. The section necessitates a balance to be made between the right of privacy and other conflicting values, and the expression "legitimate personal interest" should be construed "by making a balance between the desire to protect the interest of the injured party and safeguard his privacy, on the one hand and the contrary interests of the infringer, on the other hand" (Crim App 1132/96 Hatuha v. State of Israel, para 8 (January 20, 1998)). In the instant case, Gottesman and his firm have a twofold interest in publishing the simulations: both a creative interest and a business interest. It cannot be disputed that Gottesman has the moral right in his architectural work. Such being the case, he is entitled to the work being credited to him, namely to his work being identified with his name. This expresses recognition of the author's personality and the attempt to respect the personal connection between the author and his work (sections 45 and 46 of the Copyright Law; see also: Tony Greenman, The Moral Right – From Droit Moral to Moral Rights, Authoring Rights – Readings on the Copyright Law 439, 439-440 (Michael Birnhack & Guy Pesach, Editors, 2009)). The desire to safeguard the freedom of creative expression means that the transfer of an architect's economic rights in his work will not preclude his expressing himself in the same artistic style and motifs in other works (cf Sara Presenti, Copyright Law, vol. II (3rd edition, 2008)), and in the instant case, that the work can be exposed to other circles. Consequently, on the artistic-creative level, one can understand Gottesman's desire to expose to the public Vardi's house, a work that is unquestionably of unique quality and size. In addition, there is nothing wrong in Gottesman's desire to publicise his work for economic reasons as well because displaying the work might certainly enable its author to establish a reputation and attract clients. Nevertheless, as we have mentioned, in the scope of the defence under section 18(2)(c) a balance needs to be made between the infringement of Vardi's privacy and the legitimate personal interest of Gottesman. As mentioned above, as I see it, showing the interior of Vardi's home gives rise to a considerable infringement of his privacy. On the other hand, the harm to Gottesman's legitimate personal interest is limited. This is because Vardi's request was limited to precluding publication of the simulations on the website and, such being the case, there is nothing to stop Gottesman from making use of simulations for his business purposes, exposing them on a more limited scale, for example by showing them to clients in his office or to professional circles, a matter to which Vardi has himself agreed in writing (paragraph 23 of his summations). In this connection, certain weight should also be given to the fact that Gottesman could have given full expression to his interest in publishing the simulations by making an express agreement in such respect with Vardi in real time. To this should be added the fact – as explained above – that Gottesman can also show the simulations of the house exterior on the website. In the overall balance between the competing rights and interests, the outcome is therefore that it is inappropriate to apply the defence of section 18(2)(c) to publishing simulations of the interior of Vardi's house. Having found that publication of the simulations does not fall within one of the circumstances mentioned in section 18(2) of the Law, we have no need to consider the question of good faith or the application of the presumptions prescribed in section 20 of the Law.

Absence of Consent to Infringement of Privacy

30. Having reached the conclusion that that there is an infringement, of real significance, of Vardi's privacy, in respect of which it cannot be said that it is covered by one of the defences prescribed in the Law, we must rule whether Vardi's consent was given to the publication discussed herein. The Protection of Privacy Law provides that an infringement of privacy will not occur where there is consent to the infringement (section 1). Such consent can be expressed or implied (section 3 of the Protection of Privacy Law; Jane Doe, para 20). The reason for that requirement is that "the right of privacy is to protect the individual, and as a rule society cannot protect an adult against his will" (Crim App 4463/93 Birav v. State of Israel, PD 49(5) 447, 458 (1996)). And note, consent is not cause to justify an infringement of the rights of privacy. Consent itself is an inherent part of the right so that if it is given, a right of action does not arise (Halm, p 41). Although consent for the purpose of infringement of privacy can be inferred from a series of cases and modes of behaviour (Hay, p 122), it is best to exercise extreme care in determining that consent to publication has been obtained. "Care should be taken not to apply the justifying force of consent to cases in which it is clear that there is no real consent and the use of the consent is therefore constructive and fictitious" (Ruth Gavison, Prohibiting Publication That Infringes Privacy, Human Rights in Israel – Collection of Articles in Honour of Haim H. Cohn, 177, 199 (1982)). It has been held along these lines that from the fact that an individual agreed to disclose certain particulars to one person or several persons, it cannot be inferred that he is precluded from objecting to the publication of those particulars to the public at large (Ventura, p 822); and that even the existence of a close relationship such as marriage does not per se indicate implied consent to one partner's infringement of the other's privacy (Jane Doe, para 20).

31. From the general to the particular – in the instant case it appears that such consent was not obtained. I would mention at the outset that I do not accept Gottesman's claim that Vardi's consent to the publication was not necessary because all that was published were the simulations based on the architectural plans. Insofar as that publication causes an infringement of privacy, then it is subject to the principle that "no person shall infringe the privacy of another without his consent" (section 1 of the Protection of Privacy Law). In the instant case, it would appear that such consent was not consummated. As the lower court held, the relationship between Vardi and Gottesman was conducted on the basis of oral understandings, without the issue of consent to publication reaching exhaustive discussion between the parties. Vardi's requirement that photographs of his home could only be taken subject to signing the letter of commitment that he proposed therefore did not constitute a departure from a previous understanding between the parties but an unsuccessful attempt to reach an understanding. Since that agreement was not signed, express consent to publication was not obtained. Indeed, as aforesaid, the existence of consent can also be inferred. However, we have not found substance to the plea that Vardi's agreeing to the publication of other pictures of the house infers that implied consent was also given to Gottesman. Actually, the fact that other publications were specifically made subject to signing the said letter of commitment is such as to demonstrate the absence of consent in the instant case. Our conclusion is therefore that consent to the infringement of privacy was not obtained.

Conclusion

32. In conclusion, we have found that publishing the simulations showing the front of Vardi's house does not give rise to an infringement of privacy and in any event not an infringement of real significance, as defined in section 6 of the Law. On the other hand, we have reached the conclusion that the simulations showing the interior of Vardi's house do infringe "his intimate life" and that despite their anonymous publication, it is possible to connect them with Vardi. It has also been found that it is not an infringement "of no real significance" and that the defences prescribed in section 18(2) of the Protection of Privacy Law are inapplicable. Because the infringement of Vardi's privacy was made without his consent to the publication, there is no alternative but to find that publication of the simulations of the interior of his home on the website cannot be permitted.

I therefore suggest to my colleagues to allow the appeal in part to the effect that the injunction remains in force in respect of publishing the simulations of the house interior on the website. The meaning of this is that there is no bar to simulations of the house exterior being published on the site. In view of that result, I suggest to my colleagues to set aside the liability for costs at first instance and make no order for costs in the current instance.

Justice S. Joubran

I concur.

Justice N. Sohlberg

I concur with the judgement of my colleague Justice U. Vogelman. The distinction that he made between the front of the house and the house interior, has deep roots in Jewish law. The Torah forbids a creditor to enter his fellow's home in order to collect his debt: "When you make a loan of any kind to your neighbor, do not go into his house to get what he is offering as a pledge. Stay outside and let the man to whom you are making the loan bring the pledge out to you" (Deuteronomy 24:10-11). Although a lender and borrower, rather than strangers, are involved, the respect of privacy requires that the house not be entered; the homeowner brings the pledge outside. Despite the fact that the borrower has a debt to the lender and the lender's prima facie moral right to enter the borrower's house in order to take steps to secure repayment of the debt, the Torah prohibits entry to the borrower's house. The Torah did not make do with a moral provision but prescribed a legal right for the protection of privacy (see: N. Rakover, The Protection of Privacy (5766-2006) 265).

Jewish law protects a person's privacy not only by precluding admittance to the private domain but also by precluding "damage by sight" [hezek reiyah] from outside. As we know, Bilam sought to curse the Children of Israel when he saw them dwelling in the desert according to their tribes but he found himself blessing, instead of cursing, them and he said "How goodly are your tents, O Jacob, your dwelling places, O Israel" (Deuteronomy 24:5). This is interpreted by the Talmud as follows: "What did Bilam see? He saw that the openings of their tents did not exactly face each other, whereupon he exclaimed, worthy are these that the divine presence should rest upon them". That is to say that when Bilam saw that the tents of the Israelites were positioned so that their openings did not face each other and were directed in such a way as to ensure the privacy of everyone, he was filled with admiration and said: "How goodly are your tents, O Jacob, your dwelling places, O Israel!" (N. Rakover, ibid, pp 269-272). The Code of Jewish Law [The Shulchan Aruch] (Choshen Mishpat, 154:3) lays down the rule: "A person shall not open a window onto his neighbour's courtyard. And even one of the people who share the courtyard and has sought to open a window in his house onto the courtyard shall be restrained by his partner because he can see him from it. And if he has opened one, it shall be blocked. And if the people who share the courtyard with him have given him permission to open a window or door, he may, but he shall not open a door opposite a door or a window opposite a window and shall distance them from each other. And if it is to another courtyard, onto which he has been given permission to open a door or window, he should distance it from his neighbour's door or window until he cannot see in it at all". This is not the place for details of the Jewish law (see at length, Rakover, ibid) but merely for the principle of respecting a person's privacy. That is how God [HaKadosh Baruch Hu] acted when he called to Adam from the entrance to the Garden of Eden, from which we shall learn: "A person should never suddenly enter his neighbour's house. And every person shall learn the appropriate mode of behaviour [derech eretz] from God, who stood at the entrance to the Garden of Eden and called upon Adam, as it is said: "But the Lord God called to the man and said 'where are you'?" (Genesis 3:9; Derech Eretz Raba, Chapter 5).

We can therefore see the distinction between the interior and exterior back from ancient times. A few years ago I heard the lawsuit of a man and his wife who had built a rounded wall of unique design, made of basalt manufactured by Ravid Stones Ltd, at the front of their house. In order to promote its sales, the company published a photograph of the front of the house in the press, on the Internet and in a catalogue. The plaintiffs asserted infringement of their privacy, amongst other things. I stated there that the list of acts in section 2 of the Protection of Privacy Law, 5741-1981, that involve an infringement of privacy, does not contain "a prohibition against publishing the front of a person's home; and not without reason. A person's home – on the inside – is his castle. The front of it that faces outward is naturally exposed to the whole world. Any person passing by may savour the outer beauty of the house. A photograph of the front of the house from the public domain does not involve an infringement of privacy" (CF (J'lem) 7263/05 Levin v. Ravid Stones, para 14 (May 15, 2006)).

I therefore concur with my colleague's judgement, on the basis of its reasoning.

Held as stated in the opinion of Justice U. Vogelman.

January 23, 2013

Full opinion:

Gottesman v. Vardi.pdf

Link to original Hebrew text of decision on official ISC website:

FA Premier League v. Israel Sports Betting Council

Case/docket number:

CA 8485/08

Date Decided:

Monday, January 25, 2010

Decision Type:

Appellate

Topics:

Unjust enrichment

Abstract:

Facts: The appellants manage the professional football leagues in the United Kingdom, and regularly conduct an annual tournament among the teams in those leagues. As part of this activity, they organize and schedule matches, all of which are listed in schedules (fixture lists) that they publish. The respondent holds exclusive authority within Israel to arrange betting on sports events, and arranges such betting not only on matches played by Israeli teams, but also on matches that are a part of the appellants’ tournaments. For this purpose, the respondent lists the appellants’ matches on its betting forms, using the information about these matches that is included in the fixture lists.

The appellants filed an action against the respondent in the Tel Aviv District Court, claiming that its use of the information from the fixture lists constituted a copyright violation, or alternatively that the respondent’s use of such information gave rise to a claim of unjust enrichment. The District Court denied the claim, and this appeal followed.

Held: Both the old and new Israeli copyright statutes provide for copyright protection only for works that express originality. The case law has interpreted the originality requirement — as it applies to compilation works such as the appellants’ fixture lists — by establishing parallel tests, one referring to the level of the author’s investment in the work, and the other referring to the degree that the work reflects the author’s creativity. The latter test creates a requirement that not only is the author the “source of the work” but that he has also left an imprint of his spirit on the work. In this case, the investment test had been met, at least at the minimal level which is required. However, neither the selection of the information included in the list (i.e., all the matches in the tournaments) nor the design of its presentation (reflecting nothing other than the most logical arrangement of the basic information) could establish that the required minimal level of creativity was involved in the appellants’ preparation of the lists.

Furthermore, even if the respondent’s use of the fixture lists had amounted to the use of a protected work, there was no violation of the copyright here. The respondent used only some of the matches included in the lists, and only the information required for the purpose of preparing its betting forms.

Regarding the claim for unjust enrichment, such claims are allowed in cases involving uses of intellectual property that do not constitute a copyright violation, but only where the party which is alleged to have unjustly enriched itself has engaged in improper business practices, which is not the case here.

Voting Justices:

Primary Author

majority opinion

Hendel, Neal

majority opinion

FA Premier League v. Israel Sports Betting Council.pdf

majority opinion

Full text of the opinion:

CA 8485/08

1. FA Premier League Ltd

2. The Football League Ltd

3. The Scottish Premier League Ltd

4. The Scottish Football League

5. Football DataCo Ltd

The Israel Sports Betting Council

The Supreme Court sitting as the Court of Civil Appeals

[25 January 2010]

Before Justices M. Naor, S. Joubran, N. Hendel

Appeal of the judgment of the Tel-Aviv-Jaffa District Court (Judge Z. Brun) on 2 July 2008 in CC 1022/04.

Facts: The appellants manage the professional football leagues in the United Kingdom, and regularly conduct an annual tournament among the teams in those leagues. As part of this activity, they organize and schedule matches, all of which are listed in schedules (fixture lists) that they publish. The respondent holds exclusive authority within Israel to arrange betting on sports events, and arranges such betting not only on matches played by Israeli teams, but also on matches that are a part of the appellants’ tournaments. For this purpose, the respondent lists the appellants’ matches on its betting forms, using the information about these matches that is included in the fixture lists.

Legislation Cited

Regulation of Sports Betting Law, 5727-1967, ss. 1 and 11.

Israeli Supreme Court cases cited:

[1] ..... CA 528/73 Ettinger v. Almagor [1975] IsrSC 29(2) 116.

[2] ..... CA 513/89 Interlego A/S v. Exin-Lines Bros. S.A. [1994] IsrSC 48(4) 133.

[3] ..... CA 360/83 Struski Ltd v. Whitman Ice Cream Ltd [1985] IsrSC 40(3) 340.

[4] ..... CA 23/81 Hershko v. Urbach [1988] IsrSC 42(3) 749.

[5] ..... CA 3422/03 Krone AG v. Inbar Reinforced Plastic [2005] IsrSC 59(4) 365.

[6] ..... CA 2687/92 Geva v. Walt Disney Co. [1993] IsrSC 48(1) 251.

[7] ..... CA 2790/93 Eisenman v. Quimron [2000] IsrSC 54(3) 817.

[8] ..... CA 136/71 State of Israel v. Ahiman [1972] IsrSC 26(2) 259.

[9] ..... CA 559/69 Almagor v. Gudik [1970] IsrSC 24(1) 825.

[10] ... CA 19/81 Goldenberg v. Benet [1982] IsrSC 36(2) 813.

[11] ... CA 139/80 Harpaz v. Ahituv [1990] IsrSC 44(4) 16.

[12].... CA 8393/96 Mifal Hapayis v. The Roy Export Establishment Company [2000] IsrSC 44(1) 577.

[13] ... LCA 5768/94 A.S.I.R. Importing, Manufacturing and Distribution v. Forum Accessories and Consumer Products [198] IsrSC 52(4) 289.

[14] ... CA 2287/00 Shoham Machines and Dies Ltd v. Harar (2005) (unreported).

[15] LCA 371/89 Leibowitz v. E. and J. Eliahu Ltd [1990] IsrSC 54(2) 309.

[16] CA 9568/05 Shimoni v. “Moby” Birnbaum Ltd (2007) (unreported).

American cases cited:

[17] ... Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340 (1991).

[18] Sony Corp. of America v. Universal City Studios, Inc., 417 U.S. 464 (1948).

English cases cited:

[19] ... Football League Ltd v. Littlewoods Pools Ltd [1959] 2 All E.R. 546.

Justice S. Joubran

1. The questions to be decided here are whether the fixture lists of the British football leagues are entitled to copyright protection in Israel, or alternatively, whether the use of these fixtures without the consent of the Leagues constitutes unjust enrichment.

2. Since the appellants are asking for future-oriented declaratory relief, the following discussion will relate both to the old legislative arrangement in the Copyright Act, 1911 (hereinafter: “the old Law”) and in the Copyright Ordinance, 1924 (hereinafter: “the Copyright Ordinance”), and the new arrangement in the Copyright Law, 5768-2007 (hereinafter: “the new Law”), which repealed the old Law.

Factual background

3. Appellants 1–4 manage the British football leagues. Each year, the appellants conduct a multi-stage tournament, in the framework of which the teams in each league play against each other. Appellants 1–2 manage the English leagues, comprising 92 teams, and appellants 3–4 manage the Scottish leagues, comprising 42 teams. Appellant 5 — a company established for the purpose of exploiting the Leagues’ matches commercially — generates profits from the management of the leagues, primarily from the sale of tickets to matches and from broadcast rights for those matches.

4. The organization of the tournament between the many teams in each league requires the investment of considerable resources and effort — a fact that is not disputed. Each year, after the task of scheduling the matches has been completed, each league publishes, in the media and on various internet sites, the annual fixture lists that include the order in which the football matches will be played, as well as the dates and venues of the matches (hereinafter: “the fixture lists”).

5. The respondent is a statutory corporation, and it is the only entity authorized to arrange, in Israel, betting on sporting events. Among other things, the respondent arranges betting on British football matches, and for this purpose it makes use of the fixture lists. The names of the teams that are playing against each other appear alongside the date and time of each match on the forms used for betting on the match results.

6. The appellants’ suit in the District Court focused primarily on the argument that the fixture lists constitute a protected literary work under Israeli law, and that the use made of these lists by the respondent for the purpose of betting therefore constitutes a copyright violation. Moreover, according to the appellants, this use was made in bad faith, and the profit generated by the betting therefore constitutes unjust enrichment at the expense of the appellants.

The District Court

7. On 2 July 2008, the Tel Aviv-Jaffa District Court (Judge Z. Brun) dismissed the appellants’ suit in a reasoned judgment. The District Court began by answering, in the negative, the question of whether the fixture lists are a protected “literary work”. The court noted that the element of originality is the main criterion among the considerations that are weighed with regard to the grant of copyright protection — in the sense that by themselves, effort, time or talent are not enough, no matter how substantial each of these are. Since in this case the selection of matches and their final arrangement in the fixture list lack any degree of originality, they do not meet the required threshold of originality.

8. The District Court further held that the process of the creation of the fixture lists also lacks any minimal degree of creativity, since the order of the matches is set in accordance with functional considerations only, and no interest is served in limiting the use of information about these matches.

9. The judgment also notes that the respondent does not make any use of the fixture lists themselves — including their design and the arrangement of the matches in these lists — but rather, uses only the data that appear in them. The respondent selects the details that it wants and classifies them according to its own criteria. Since there is no restriction on the use of the details of the matches, even were the fixture lists protected by copyright, the use that the respondent makes of the details of the matches would not constitute a violation of the appellants’ rights.

10. The appellants’ arguments regarding unjust enrichment were also dismissed, on the grounds that the criteria for accepting this cause of action, such as the creation of unfair competition or a violation of the rules of commerce, are not fulfilled in this case. As the respondent is the only party in Israel that arranges betting on sporting events, there can be no competition between it and the football leagues. Moreover, the interest that betting on British football matches arouses allows the leagues to raise the prices of the broadcast rights and of league-related products, and in this way it indirectly helps to increase the appellants’ profits.

The arguments of the parties

11. According to the appellants, the fixture lists are a protected literary work, and the District Court’s holding that the degree of originality is the main test for granting copyright protection should be rejected. They emphasize that the work’s originality is examined specifically at the stage of its formulation, and they believe that the process of creating and managing the fixture lists meets the required threshold. They also argue that the substantial effort that was invested in setting up the matches is a relevant criterion for determining whether the fixture lists enjoy copyright protection. Additionally, they argue that a high threshold for originality will not allow for the recognition of a copyright in functional works — such as tables and various compilations — that have already been recognized in Israel and in other states as being worthy of protection. According to the appellants, even if the only purpose of the fixture lists is the transmission of information regarding the tournaments, their status is not less than that of tourism guides, train schedules and television broadcast schedules, all of which have been recognized as protected works.

12. Regarding the District Court’s determination that the main activity of the Leagues is directed at setting up the matches, and not at preparing the fixture lists as a goal per se, the appellants argue that this consideration is not relevant to the question of whether these lists should be protected by copyright.

13. They also refer to the case law from England, where, they argue, similar fixture lists have been recognized as copyright-protected literary works. In circumstances similar to those before us, it has been held that a private company that arranged betting on the results of football matches based on these lists had violated the League’s copyright. They argue that various English and American decisions that have granted copyright protection to works of a similar nature, such as television broadcast schedules and a database of golf results, support the claim that the fixture lists are also covered by copyright protection.

14. Further to these claims, the appellants believe that the respondent makes frequent use of a substantial and key portion of the fixture lists, by integrating the league matches — some of them particularly “attractive” matches — into their betting forms. Consequently, they argue, the respondent is violating their copyright.

15. The appellants’ alternative argument deals with a claim of unjust enrichment. The respondent’s profits from the betting are, according to the appellants, produced in bad faith, and they are entitled to relief on the basis of an unjust enrichment claim, even if it has not been proven that any damage or injury has been caused to them. Even if the respondent holds an exclusive license in Israel for the arrangement of betting on sporting events, this would not necessarily signify that it is not required to pay any royalties whatsoever to the appellants as the organizers of the matches and of the lists.

16. Counsel for the respondent agree with the judgment of the District Court. They argue that the fixture lists do not satisfy the originality requirement, since they consist of nothing other than a simple and sequential arrangement of the Leagues’ football matches. They refer to the private member’s bill currently before the Knesset, according to which commercial entities that make use of the names of teams for the purposes of gambling would be required to pay for such use to the associations and corporations that organize the matches. They argue that this bill makes it clear that until the statutory situation is changed, the respondent is not required to make payments of this type, and certainly not pursuant to the laws of copyright.

17. Counsel for the respondent also note the importance of the distinction made by the District Court between the effort and labor invested in the organization of the football matches themselves, and the effort involved in preparing the fixture lists as a “literary creation”, after the matches have been organized. The respondent agrees that the process of organizing tournaments does involve a substantial investment; however, the same is not true with regard to the process of preparing the fixture lists, which requires nothing more than producing a chronological list of the matches in each league, without any significant investment of effort.

18. The respondent also argues that the “merger doctrine”, which originated in American law, applies to the circumstances of this case. According to the doctrine, when an idea can be expressed in only one way, that expression will not be granted copyright protection.

19. Counsel for the respondent also argue that even if the fixture lists are recognized as a protected work, the use made of them is only partial, such that only a few of the league matches appear on the betting forms, and the order in which they appear on the fixture lists is not taken into account.

20. Regarding the demand for compensation based on the unjust enrichment claim, counsel for the respondent argue that this claim violates the balance established in the law of copyright between the public interest in providing incentives for creativity and the right to freedom of expression and of information. Any application of unjust enrichment law to the use of information that is not protected by copyright must be very limited, and it is not justified in the circumstances of this case. There is no business competition between the appellants and the respondent, and the use of the fixture lists for the purpose of the betting even gives rise to a certain “cross-fertilization” of each side’s interests.

Deliberations

21. The issue of the appellants’ moral rights in the fixture lists was not raised in the parties’ pleadings, and the deliberations will therefore focus on their “economic” rights only. (On the nature of moral rights, and the distinction between these rights and “economic” copyright, see chapter G of the new Law; CA 528/73 Ettinger v. Almagor [1], at p. 118; CA 513/89 Interlego A/S v. Exin-Lines Bros. S.A [2], at p. 160; S. Portnezy, Copyright Law (3^rd ed., 2008), at pp. 1137 – 1197.) The issues to be decided in this case relate first of all to the question of whether the Football Leagues’ fixture lists should be included within the category of copyright-protected works, according to the criteria established for this purpose under Israeli law. A positive answer will necessitate an examination of the nature of the use that the respondent makes of these lists, and whether it reaches the level of a violation of the appellants’ copyright.

22. The entry into force of the new Law did not change the Israeli law relating to this matter. The new Law anchors the rules that have been developed in the case law to date, and the outcome of this discussion is therefore applicable to both the previous statute and the current legal arrangement.

23. Among the various works to which the old Law refers, copyright protection is granted, by virtue of s. 1 of that Law, to an “original literary work”. Section 35 provides that the term “literary work” includes tables and compilations. Section 7B of the Copyright Ordinance qualifies this protection and establishes that there can be no copyright in an “idea, fact or data, by themselves”, and that only the manner in which these are expressed may be the subject of copyright. There are similar definitions in the equivalent to this arrangement in the new Law. Section 4(a)(1) of the new Law provides that there will be copyright protection for, inter alia, an original creation that is a literary work. Section 1 of the new Law includes a table or a compilation of data within its definition of a “literary work”. Finally, s. 5 provides that copyright will not apply to an idea, fact or data, but only to the manner in which these are expressed.

24. The case law development of the arrangements in the old Law and in the Copyright Ordinance fashioned the criteria to be applied in determining whether copyright should be granted to a variety of works, including tables and compilations. In light of the nature of the work which is the subject of the appeal before us — a compilation of the details of the British League matches, in tables — it is more appropriate for it to be judged as a work in the compilation category, although in the circumstances before us, the possible differences between a compilation and a table would be of no consequence.

25. Among the conditions for the recognition of copyright, the criteria relevant to our case are those relating to the “creativity” of a work and to the “investment” therein – meaning that we must determine the proper interpretation of these criteria and the relative weight that each should be given, in dealing with a work that consists of a compilation of data, even if the data themselves are not protected by copyright.

26. These criteria developed against the background of the interpretation of the “originality” requirement, which had already been established in the old Law (after it was amended due to the accidental omission of this requirement from the original translation of the English law into Hebrew, see CA 360/83 Struski Ltd v. Whitman Ice Cream Ltd [3], at p. 347), and was included in the new Law as well, as a key condition for copyright protection. The first approach to its interpretation — dubbed the “investment approach” in Interlego A/S v. Exin-Lines Bros. S.A. [2] (and called the “sweat theory” in the United States) — is based on the application to intellectual property of the rationales that underlie the protection of “tangible” property. According to this view, since it would be unfair to allow a person to enjoy the fruits of another person’s labor without permission or the payment of consideration, the level of the creator’s investment in the work should be emphasized as a condition of fulfillment of the originality requirement.

27. The second approach — the “creativity approach” — focuses on the public interest in encouraging the creation of public goods, through the expansion and compensation of the world of expression. The level of effort invested in a work does not guarantee that the output makes any contribution whatsoever to society, and therefore, this approach focuses on the nature and character of the investment, and not on its quantity. (Regarding these two approaches, see the extensive discussion in Interlego A/S v. Exin-Lines Bros. S.A. [2], at pp. 161–164, 167–168, and the sources cited there.) It should be noted that in the case law, the “creativity” test is also called the “originality” test; however, in accordance with the conceptual division outlined in Interlego A/S v. Exin-Lines Bros. S.A. [2], and for the purpose of avoiding confusion with the “originality” requirement established in the statutes, this test will be referred to hereinafter as the “creativity test”.

28. Israeli case law recognizes the two tests — both the creativity test and the investment test — as conditions for the fulfillment of the statute’s creativity requirement (see Interlego A/S v. Exin-Lines Bros. S.A. [2], at p. 173), and they are therefore important in this case as well.

Creativity and investment — the nature of the tests

29. It should be noted that as a rule, these two tests do not establish a particularly high threshold for those seeking to acquire copyright protection for their works (ibid. [2], at p. 170), and compilations are not an exception to the rule. In CA 23/81 Hershko v. Urbach [4], at p. 759, the Court went further, noting that:

‘The degree of originality that is required for the work to be protected pursuant to the copyright laws will differ from case to case, and in some cases could be minimal and even valueless.’

30. Although this approach was not adopted in the same words in later case law, it certainly reflects the understanding that it is not necessary to be overly strict regarding the grant of copyright protection. Thus, it has been held that the creativity condition does not include a requirement of innovation in relation to existing works, and that the meaning of the term “originality” in the statute, with regard to this condition, does not refer to the work itself but rather to the author or compiler, in the sense that the author or compiler must be the “origin” of the work:

‘[It is] not [necessary] for the work [to be] the expression of a novel or innovative idea or invention, but that the work must not be copied from another work, and its source must be its creator or author’ (Struski v. Whitman Ice Cream [3], at p. 346).

Or, as my colleague Justice Rubinstein has written: “original — meaning, independent” (CA 360/83 Krone AG v. Inbar Reinforced Plastic [5], at p. 378).

31. Nevertheless, it is obvious that the positive aspect of this creativity-independence requirement should not be utterly dismissed. The case law clearly indicates that the fact that a work was independently produced and has not been copied will not necessarily signify that it is protected, and that even if the author or compiler is the source of the work, the creativity requirement may not have been fulfilled. A work that makes use of only general elements and is not based on an earlier work will indeed pass the originality bar of the law relatively easily (see Interlego A/S v. Exin-Lines Bros. S.A. [2], at p. 173). On the other hand, the work must contain some form of the author’s or compiler’s own imprint — even if at times this may be only minimal. It must be the “fruit of the creator’s intellectual labor” (ibid. [2], at p. 378), and it must, at the least, reflect “a very minimal level of personal expression” (CA 2687/92 Geva v. Walt Disney Co. [6], at p. 257. See also CA 2790/93 Eisenman v. Quimron [7], at p. 830.)

32. As noted above, one of the clear purposes of copyright is to provide incentives to potential authors to publish their works, in order to enrich the world of expression based on the existing facts, data, and ideas. The recognition of copyright protection for works that include no expansion of the existing forms of expression would contradict this said purpose. Therefore, copyright protection will not be granted even to works that are not copied, when —

‘The final work makes use of things that are simple, obvious and known, which are in the public domain, such as a circle, or a simple line’ (Interlego A/S v. Exin-Lines Bros. S.A. [2], at p. 171).

33. A further distinction which can be of use in implementing the creativity test is that the test does not focus on the final product, but rather on the process of its preparation, and examines the degree of creativity with which the author or compiler endowed the creation during the stages of its formation. Pursuant to this rule, even if the work in its final format is absolutely identical to a different protected work or does not indicate any creativity or investment, it could be entitled to protection due to the creator’s contribution in the process of its formation (ibid. [2], at pp. 170-171, 173; Eisenman v. Quimron [7], at p. 830. See also the discussion below).

34. As for the investment test — its interpretation is not disputed and its implementation is simple. According to this test, “an expression regarding which copyright protection is sought ... must be the product of a minimal investment of some type of human resource” — time, labor, ability, knowledge, etc. (See Interlego A/S v. Exin-Lines Bros. S.A. [2], at p. 173.)

Originality and investment — the relationship between the two and the importance of each

35. The question of the importance of these two tests and of the relationship between them has already been elucidated in Israeli case law. In Interlego A/S v. Exin-Lines Bros. S.A. [2], President (ret.) M. Shamgar discussed the various trends that have developed over the years in English and American case law regarding the relationship between the two tests and their weighting in the protection of various works. The decision in that case refers to rules that placed the level of investment, specifically, at the center of the originality requirement, allowing for the erosion of the creativity requirement. Thus, one approach tended towards invoking the level of the investment in the work as an indicator of the presence of creativity, and another held that significant efforts would compensate for a lack of creativity and would, by themselves, satisfy the originality requirement (ibid. [2], at p. 168, 169-170, and the sources cited there). Indeed, the discussion in CA 136/71 State of Israel v. Ahiman [8] indicates that this Court has been willing to implement this latter conception, by using the investment test only. In that case, the Court examined the possibility of granting copyright protection to income tax withholding tables, and held as follows:

‘Although, as is known, there is no copyright in an idea only, there can be a copyright in a special manner of preparation or design chosen by the compiler of the tables in order to make the use thereof easier, if special thought, labor or skill were invested in inventing the plaintiff’s method’ (ibid. [8], at p. 261, emphasis added, S.J.)

36. Nevertheless, Israeli law has, in the end, accepted a different approach, which conditions copyright protection on the presence of a minimal degree of creativity, and rejects protection of a work based purely on investment. This approach is based on the leading rule established in the United States in Feist Publications Inc. v. Rural Telephone Service Company [17] (hereinafter: “the Feist rule”). (See also the expanded discussion of the rule, below.) The Feist rule was expressly adopted in Interlego A/S v. Exin-Lines Bros. S.A. [2], and has since then been followed in our case law. President Shamgar justified the adoption of the rule as follows:

‘In light of the purpose of the copyright laws, as presented above, clearly the conclusion is that investment alone is not sufficient to justify the grant of copyright protection to an expression. This conclusion relies both on the fact that the copyright laws constitute a balance of competing societal needs, and on the scope of the protection granted to the holder of copyright. The balancing function of the law stems from the fact that the grant of copyright protection to a particular expression limits possible future expressions. An approach that views the right as stemming from the investment per se is not sufficiently sensitive to this important balance, which forms the basis of the copyright law. The “investment” approach is, indeed, a standard approach for the justification of tangible property law, and there are those who see it as appropriate for intellectual property law as well (T. Black, Intellectual Property in Industry (London, 1989) at p. 70). But it appears that the difference between the two areas does not allow for its adoption in the intellectual property field. Expansion of the world of expression is important not only in terms of the self-expression of the creator of the expression, but also with regard to the world of expression of the entire public and all of society. Ownership of the fruit of the tree is not the same as ownership of seeds from which, in the future, other trees will grow. In both cases, the grant of ownership limits the ability of the rest of the world to exploit it in the present; when we speak of ownership of the seeds, however, there will also be ramifications with respect to the variety and quantity of the trees in the future; and in the case of ownership of an expression, there are far-ranging ramifications for the future world of expression. With regard to these matters, not only the aspirations of individuals must be balanced: the good of society as a whole must be considered (Sony Corp. of America v. Universal City Studios, [18], at p. 429). The subject matter of intellectual property is a cushion for the realization of human aspirations, but this is also an area in which humanity’s future aspirations and horizons are developed. Great importance therefore attaches not only to providing compensation for investment but also to the degree of restriction on future development that the grant of copyright is likely to cause’ (ibid. [8], at p. 165 (emphasis added, S.J.). See also, ibid. [8], at p. 169; T. Grinman, Copyright (2^nd ed., 2003), at p. 121.)

37. In Eisenman v. Quimron [7], this Court approved this ruling, holding as follows:

‘Originality is the main thing, and the investment of effort, time or skill is not sufficient to justify copyright protection’ (ibid. [7], at p. 829; see also p. 830, which mentions the approach whereby investment alone may indicate the existence of creativity, although that approach is not actually applied in the decision).

38. Thus, we are now faced with a clear rule, according to which both the creativity and the investment tests are necessary conditions for granting copyright protection, but each of them by itself is not sufficient. While Israeli law construes both tests rather narrowly — as we saw above — they are cumulative and parallel tests, and a party claiming that a work is subject to copyright protection must show that both tests have been met. A high level of investment in the creation cannot compensate for the absence of creativity, and vice versa. Since the investment test is generally easily met, the creativity test is the one that will, ultimately, determine the question of whether the work satisfies the originality test in the statute. The rules on which the appellants’ counsel rely, including the rule in the British judgment in Football League Ltd v. Littlewoods Pools Ltd [19]), which recognize copyright for football fixture lists, have not been adopted in Israeli case law.

Creativity and investment in a compilation-type literary work

39. We will now examine how these tests are applied with respect to a compilation-type literary work. First, it is important to note that even when the content of the compilation is not protected by copyright — in that it is composed of ideas, facts, news, etc. — and the general public is therefore permitted to make use of such content, this does not signify that the compilation work cannot enjoy any protection at all:

‘The fact that the “building blocks” that served as the material used by the creator were in the public domain has nothing to do with the question of whether the creator can benefit from copyright protection for his work’ (Eisenman v. Quimron [7], at p. 828).

40. It is understood that data, facts or ideas will not become protected even after they are included in any type of compilation (compare, Eisenman v. Quimron, ibid. [7]). Copyright protection is granted in these cases to the manner in which the compiled details are processed and the manner in which they are presented, and not to the details themselves. Naturally, the fulfillment of the statutory requirement of originality, too, is expressed in the examination of the external characteristics of the compilation’s contents:

‘Although, as is known, there is no copyright protection for an idea by itself, such protection can be given to a unique manner of preparation or design . . . and it makes no difference that the “raw material” for the composition of the tables was in the public domain’ (State of Israel v. Ahiman [8], at p. 261).

‘We have seen that compilation and preparation can fall within the definition of a “literary work” as defined in the statute, and that the question of whether a work is entitled to copyright protection is determined according to the degree of originality that it contains’ (Eisenman v. Quimron [7], at p. 831).

41. In the new Law, these rules were expressly anchored in s. 4(b), according to which the “originality of a compilation is the originality in the selection and arrangement of the works or of the data embodied therein.” Although “selection” of the data was not expressly mentioned in the case law that preceded the new Law, it appears that the new Law does not contain any legal innovation and provides a clarification only, and, even prior to its enactment, the Court would have looked for the required creativity on the basis of the manner in which the information was selected. Creativity in the selection of the data is an alternative, not cumulative, condition for the requirement of originality in the arrangement of the data. (See, on this matter, the explanatory notes to the Copyright Bill, 5765-2005, Draft Laws 196, 1120, and the reference to s. 10(2) of the TRIPS Agreement, which refers expressly to “. . . selection or arrangement of their content . . .” (emphasis added, S.J.). For the text of that agreement, see http://www.wto.org/english/docs_e/ legal_e/27-trips_04_e.htm#1.)

42. In light of the above, the investment and the creativity tests examine two main characteristics of a compilation-type of literary work: the manner in which the data in the work were selected, and alternatively, the manner in which they are arranged and their design within the work. The Court has previously examined two types of compilations, and has recognized both of them as meriting copyright protection. In one case — State of Israel v. Ahiman [8] — the Court examined originality in the context of income tax withholding tables. However, as we have seen above, the ruling that the tables were entitled to protection was based on the investment test alone, and the case is therefore not helpful here. In the second case — Eisenman v. Quimron [7] — the Court faced the question of whether a person performing the following acts would be entitled to copyright in the entire text: deciphering of an ancient scroll through the assembling, location and arrangement of approximately one hundred of its scraps, filling in the missing parts of the scroll and solving the content written in it. The decision in that case focused on the originality involved in the process of deciphering the scroll (see the above discussion regarding the importance of examining the process of preparing a work) and noted that the restoration of the text could have been carried out in a variety of ways, that the reconstruction of the text could have been carried out in a number of ways, and that the filling in of the missing pieces of the scroll was the fruit of the researcher’s thought process, and was not necessarily dictated by the pieces that had been found. The parameters used in that decision for applying the creativity test were the researcher-compiler’s knowledge, expertise, and imagination.

‘The layers of the work cannot be separated from each other, and they should be seen as one work of creation. An examination of the work, with all its layers, as a single piece, reveals undisputed originality and creativity. Quimron’s work was therefore not technical, “mechanical” work, like simple physical labor, the results of which are known in advance. The spirit, the “extra soul” that he put into the pieces of the scroll, which transformed the pieces into a living text, do not fall within the boundaries of an investment of human resources only, in the sense of sweat, within the meaning of “the sweat of a man’s brow.” These were the fruits of a process in which Quimron used his knowledge, expertise and imagination, exercised judgment and chose between different alternatives’ (ibid. [7], at p. 833).

43. American case law includes many discussions of copyright protection for compilations. The first comparison that should be drawn, however, is with the case in which the above-mentioned Feist rule was developed, both because Israeli law has adopted its conclusions, and, even more importantly, because the conclusions reached in that decision were based on a set of facts which is similar to the set of facts in the case before us.

44. In that case, the United States Supreme Court dealt with an action filed by a company that provided telephone services in several areas, in which the company sought to obtain copyright protection for a telephone directory that it published for its customers. The telephone directory (in the parts that were the subject of the dispute) included a list of the customers’ names in alphabetical order, along with the names of the cities in which they lived and their telephone numbers. Similar to the law in Israel, the United States Supreme Court used, as the starting point of its analysis, the assumption that the names of the company’s customers and their details, by themselves, were not protected by copyright, in that they were purely facts, but that the manner in which a compilation of the customers’ details had been designed could, as a matter of principle, be entitled to protection. In that case, the United States Supreme Court emphasized the rule that this Court adopted in Interlego A/S v. Exin-Lines Bros. S.A. [2], whereby creativity is an essential condition for determining the work’s originality:

‘As mentioned, originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way. It is equally true, however, that the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist’ (Feist v. Rural Telephone Service Company [17], at p. 362, emphasis added, S.J.).

45. The application of the creativity test to the preparation of the telephone directory led the United States Supreme Court to the conclusion that this particular compilation of the company’s customers’ details was not entitled to copyright protection because it lacked any modicum of creativity, either in the selection of the details that appeared in the telephone directory or in the manner in which they were arranged and designed.

46. An examination of the process of creating the directory indicated that there had been no sorting of the data that was included in it. The records in the directory simply included all the company’s customers and contained only the most basic information pertaining to them:

‘It publishes the most basic information — name, town, and telephone number — about each person who applies to it for telephone service. This is “selection” of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original’ (ibid. [17], at pp. 362-363).

47. The arrangement of the records could not have been more trivial. The customers’ names had been arranged in alphabetical order and there was actually no real alternative to that arrangement:

‘Nor can Rural [the telephone company that had prepared the directory] claim originality in its coordination and arrangement of facts. The white pages do nothing more than list Rural’s subscribers in alphabetical order. This arrangement may, technically speaking, owe its origin to Rural; no one disputes that Rural undertook the task of alphabetizing the names itself. But there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course... It is not only unoriginal, it is practically inevitable (ibid. [17], at p. 363, bracketed words and emphases added, S.J.).

48. Now that we have examined the nature of the originality requirement in Israeli law and we have noted the nature of the tests regarding creativity and investment in works that are entitled to copyright protection in general, and to compilations in particular, we will consider the application of these rules to the case before us, and we will examine whether the fixture lists merit copyright protection.

49. The British Leagues’ fixture lists include all the football matches played in the annual tournament, and those matches only. The information about each match includes the names of the teams that are playing and the date and venue of the match. The matches are arranged in chronological order, according to the date and hour at which they will be played. On each date, the matches being played are presented alphabetically according to the name of the home team. The letter “v” (versus) appears after the name of the home team and the name of the guest team in that match appears after the “v”. After that, the venue at which the match is being played appears within a set of parentheses. The records appearing in the lists are arranged in rows, and they include no design or other special arrangement.

50. It should be noted that an examination of the presence of originality is relevant here only to the process of creating the compilation itself, and certainly not to the work involved in preparing the tournament, nor to the determination of the order of the matches in accordance with the constraints of the teams or the stadiums, nor in accordance with other functional considerations. The selection of the information included in the fixture lists is based on the existing data regarding the details of the matches. The preliminary selection of the teams and the venues of the matches and the coordination among all the parties, with the ultimate aim of holding the football tournament, all relate to the preliminary stage, the stage of the creation of these details. As such, all the creativity and investment that find expression in the organization of the tournament are in no way relevant to the originality requirement in this case. Consideration of these two elements here would be comparable to a consideration of the creativity and efforts invested by the company that prepared the telephone directories for its customers in Feist v. Rural Telephone Service — not only in preparing the directory itself, but also in laying down the telephone infrastructure and connecting customers to it.

51. The investment test is not an obstacle here. It also appears that even if no effort was required in selecting the matches to be included in the lists, the preparation of the records involved at least the minimal effort that satisfies this requirement. On the other hand, I believe that the creativity test has not been met in this case, in which no selection was made among the details that were included in the lists — and in any event, the argument that the selection involved a degree of creativity was not raised before the lower court — nor did any party carry out any selection with respect to the manner in which the details were organized. Therefore, not only is the information appearing in these lists itself not protected by copyright, there is also no copyright protection for the fixture lists as a single unit, and for the manner of the presentation of the matches.

52. It is true that the fixture lists do not include details regarding all the matches that are played during that year, and that they do not include any of the matches that are played in Great Britain other than those that are played as part of the tournament. Therefore, it would seem that there is some “selection” in the information that appears in the lists. Nevertheless, this “selection” does not include any calculated process of data filtering. Even though the “source” of the selection is the author-compiler as required in Krone AG v. Inbar Reinforced Plastic [5], this selection includes no substantive expression whatsoever — not even at a most minimal level — of the author-compiler’s spirit and personality, as the rules established in Interlego A/S v. Exin-Lines Bros. S.A [2] and in Geva v. Walt Disney Co. [6] emphasize. This is also true in light of the fact that we are not dealing here with a “classic” type of literary work, but rather with a specialized table of data. It is obvious that no expertise or imagination was required in this selection (see the test described in Eisenman v. Quimron [7]), and that the information that is presented regarding each match is rather trivial. Therefore, as was held in Feist v. Rural Telephone Service, even if the assembling of the Leagues football matches in the lists did include a process of selection — it was not a “creative selection” and it therefore lacks any originality.

53. The same conclusion can be reached in relation to the form of the arrangement and the design of the information regarding the matches of the Leagues. It appears that the most logical manner (if not the only logical manner) for presenting all of the matches taking place in the framework of the football tournament would be in the order in which they are presented in the lists, i.e., according to the dates on which the matches are being played and obviously with an indication of the names of the teams and of the site at which they will be played. The design of the details — the presentation of each match by indicating the name of the home team and then the name of the guest team, divided by the letter “v”, and the placement of the name of the venue of the match in parentheses — lacks any scrap of uniqueness or personal expression. Thus, according to the rules mentioned above, the arrangement of the information also lacks the necessary degree of creativity in order to satisfy the originality requirement.

54. The conclusion to be drawn from this is that according to Israeli law, anyone may make any use of the details of each match and of the match itself (as they are all unprotected facts) and of the details of all the matches put together as a bloc (since the manner in which the matches were selected is not protected) and of the manner in which these matches are presented in the lists (since the design of the lists is also unprotected) — and no such use will require permission from the appellants, nor any payment whatsoever to them.

55. Once this conclusion has been reached, there is no need to discuss the question of the violation of copyright. As a side point, I will add briefly that even if I believed that the compilation did satisfy the originality requirement both in terms of the investment in its preparation and in terms of the creativity contained in it, this would not be sufficient to accept the appellants’ claim. Even if the compilation that was the result of the selection of the matches and the design of the lists were protected by copyright, the respondent did not copy them and did not publish them. Instead, it used only the facts presented in the compilation and these, as stated, are not protected.

56. Moreover, as can be seen in the appellants’ tomes of exhibits, the design of the tables in which the respondent publishes the details of the matches is completely different from the arrangement in the lists. This design publicizes the details of only some of the British Leagues’ matches rather than the details of all of them, and those that are publicized appear alongside the details of football matches played in Israel and in other countries. Under these circumstances, even if it were assumed that some of the features of the compilation are protected by copyright, it is certain that they have not been copied in full, nor has a significant part of them been copied. Regarding this “significant part” requirement, see s. 11 of the new Law, s.1(2) of the old Law (which uses the phrase “substantial part”), and CA 559/69 Almagor v. Gudik [9], at pp. 830-831; CA 19/81 Goldenberg v. Benet [10], at p. 823; CA 139/80 Harpaz v. Ahituv [11] at p. 21; CA 8393/96 Mifal Hapayis v. The Roy Export Establishment Company [12], at pp. 591-593; CA 360/83 Krone AG v. Inbar Reinforced Plastic [5], at p. 381-382.

Unjust enrichment

57. Similarly, I believe that the appellants’ arguments regarding the unjust enrichment claim should be rejected as well. The case law of this Court has established, as a basic principle, that the laws of unjust enrichment can also be applied, in certain circumstances, to areas which, as normally defined, should be subject to regulation by the laws of intellectual property. This rule was established by the majority opinion (and against the dissenting opinion of Justice Englard) in LCA 5768/94 A.S.I.R. Importing v. Forum Accessories and Consumer Products [13]:

‘The various opinions in the A.S.I.R. case, although they do not create a uniform rule, clearly indicate that it is possible, in certain circumstances, to invoke the laws of unjust enrichment to protect ideas that are not protected by intellectual property law’ (CA 2287/00 Shoham Machines and Dies Ltd v. Harar [14], at para. 10).

Regarding Justice Englard’s position that the absence of a cause of action based on intellectual property will rule out the ability to make a claim based on unjust enrichment, but leaves open the possibility for a claim based on liability law, see A.S.I.R. Importing v. Forum Accessories [13], at pp. 445-446, and see also O. Groskopf, New Horizons in Law — Protection of Competition through the Law of Unjust Enrichment (2002), at pp. 309-312).

58. The unjust enrichment cause of action is anchored in s. 1(a) of the Unjust Enrichment Law, 5739-1979 (hereinafter: “Unjust Enrichment Law”):

Duty to make restitution

1(a)

A person who has received an asset, service or other benefit (hereinafter: “the beneficiary”) other than pursuant to a legal right, which has come to the person from another person (hereinafter: “the provider”), must make restitution to the provider with regard to what has been received, and if restitution in kind is not possible or is unreasonable, the beneficiary must pay the provider the value of what has been received.

59. The section sets three conditions for this cause of action to arise: that there has actually been enrichment; that the beneficiary has “received an asset, service or other benefit ...”; that the said enrichment has “come” to the beneficiary from the provider and at the provider’s expense; and that the beneficiary’s enrichment at the expense of the provider has been “other than pursuant to a legal right.” The case law has added the requirement of “an additional element” with respect to the third condition, for the purpose of proving the cause of action:

‘The third element, according to which the question of whether the enrichment was “other than pursuant to a legal right” is examined, indicates that the fact that there was enrichment is not sufficient, per se, to give rise to an unjust enrichment claim. It is also not sufficient for the enrichment to have come from the provider and for it to have been at the provider’s expense. For the unjust enrichment claim to arise, another element is necessary. This additional element focuses on the nature of the enrichment’ (LCA 371/89 Leibowitz v. E. and J. Eliahu Ltd [15], at pp. 321-322).

60. In A.S.I.R. Importing v. Forum Accessories [13], all the justices agreed that “imitation or copying of a product ‘per se’, in the absence of an intellectual property right in the product pursuant to the statutory law ... does not grant a right to restitution under the Unjust Enrichment Law.” They also agreed that “a condition for a right to restitution is that an ‘additional element’ compounds the copying or the imitation” (ibid. [13], at p 449). However, in that case, the Court dealt at length with, and offered differing interpretations of, the nature of the “additional element” and the manner in which it should be properly applied in circumstances that are ordinarily regulated by intellectual property law, and in which an action brought pursuant to intellectual property law has been dismissed.

61. According to Justice Strasberg-Cohen’s suggestion in that decision, the additional element is present when there has been bad faith conduct (ibid. [13], at pp. 431-432). President (ret.) Barak accepted this interpretation, but offered a more focused test, according to which unfair competition in violation of commercial practice will fulfill the “additional element” requirement (ibid. [13], at pp. 474-477). Deputy President (ret.) Levin and Justice Or also adopted the unfair competition test. (For additional tests that were not accepted by the majority opinion, see Justice I. Zamir’s “special severity” test, ibid. [13], at p. 492; Justice Cheshin’s “quasi-tort” test, ibid. [13], at pp. 371-373. See an extensive discussion of the various approaches and the scope of the application of the unjust enrichment laws in cases of this type in Shoham Machines and Dies Ltd v. Harar [14], at para. 11.)

62. In that judgment, President Barak listed a number of considerations that must support a determination as to whether this test has been met under the circumstances, and whether it substantiates the claim of unjust enrichment: the importance, the innovativeness and uniqueness of the work from which the beneficiary was enriched; the effort that was invested in its preparation; the number of times that the work was copied, and the frequency of such copying; the beneficiary’s awareness of the fact that the work was copied; in cases of products with a functional use — the existence of reasonable alternatives for manufacturing similar products; and the results of the copying and the degree of its impact on the provider (ibid. [13], at pp. 477–479. See also Justice Cheshin’s opinion, ibid. [13], at pp. 431–432, which focuses on two of the tests, and Shoham Machines and Dies Ltd v. Harar [14], at para. 12.)

63. In the case before us, the possibility of determining the presence of an “additional element” according to the unfair competition test can be immediately dismissed due to the respondent’s status as the only body authorized to arrange betting on the results of sports games and competitions in Israel (see ss. 1 and 11 of the Regulation of Sports Betting Law, 5727-1967). The issue of unacceptable commercial competition is not relevant in this case, because ab initio there cannot be any competition between the respondent and the appellants. Therefore, arrangement of the betting cannot in any way harm the appellants’ existing or potential business or profits, even though the details relating to the British Leagues matches are based on the fixture lists.

64. As an aside, I would comment that even if the betting were not under the respondent’s exclusive authority as a statutory body, the respondent’s use of the details of the British Leagues’ matches would not amount to unfair competition. The preparation and publication of the fixture lists are indeed very important for the purpose of informing the public of the program for the football tournament, but the copying of the work for the purpose of arranging the betting can only help to publicize that program. It is highly doubtful that there is any innovation and uniqueness contained in these lists, as we have seen above. Additionally, the effort invested in the preparation of the lists — as distinguished from the undoubtedly significant investment that was involved in preparing the tournament and setting up the matches — was rather minimal. On the assumption that the appellants, too, can arrange betting on the Leagues’ matches, it appears that requiring the respondent to pay royalties to the appellants for the use of the details of the matches would actually create unfair competition on the part of the appellants, who will in that case hold a monopoly on the information.

65. The respondent has not engaged in any improper behavior that justifies the payment of royalties to the appellants, even according to the broad good faith test established in A.S.I.R. Importing v. Forum Accessories [13]. The respondent is not abusing its authority and it is not denying the appellants any other indirect profits for broadcast rights for the matches or from the sale of accompanying products relating to the football teams. It is not impossible that the gambling actually increases the awareness of the British Leagues’ matches in Israel. In light of this, there is no basis for invoking an unjust enrichment claim in the circumstances of this case. Furthermore, obligating the respondent to pay royalties would lead to the unjust enrichment of the appellants. In view of the nature of the respondent’s activity and its exclusivity in relation to the arrangement of betting, the other tests that were proposed in A.S.I.R. Importing v. Forum Accessories [13] regarding the interpretation of the “additional element” are not relevant here. Therefore, the appellants’ arguments with respect to this issue must be rejected as well.

66. As a marginal point I will comment that the discussion in A.S.I.R. Importing v. Forum Accessories, ibid. [13] related to a number of products that should have been regulated by patent and industrial design laws (bathtub fixtures; equipment for processing and cutting aluminum; and a unique manner of attaching the pages in a photo album), and not to works whose protection would be determined by copyright. The intellectual property laws did not apply in those circumstances, as the plaintiffs in that case had not registered the products as required by law. In light of this, Grinman proposes that a distinction be made between situations in which protection under intellectual property law has been denied due to technical defects, and cases in which the protection has been denied due to the essence of the product or the work — in light of specific interests, or because of proper policy considerations, etc. — and particularly when the enrichment occurred in relation to information or data that are in the public domain. His position is that the application of the unjust enrichment laws must be more limited in the latter situation:

‘Since these laws already involve an internal balancing between the conflicting public interests, and particularly a balancing between the interest in encouraging creative work and the public interest in freedom of expression and of information, it would be wrong to apply the laws of unjust enrichment to this area in a manner that would violate this balancing’ (Grinman, Copyright, supra, at p. 65).

67. This proposal is consistent with the position — recently fortified in the case law — that the overuse of causes of action based on unjust enrichment in areas that overlap with intellectual property law is undesirable:

‘Indeed, only in unusual cases will the elements of the inventiveness that characterize the product, its uniqueness, innovativeness and the resources of time, money and human effort that were invested in its development be of a degree that justifies the tipping of the scales in favor of the grant of relief pursuant to the laws of unjust enrichment, and not pursuant to the natural and accepted coverage of the intellectual property laws and the laws of tort’ (CA 9568/05 Shimoni v. “Moby” Birnbaum Ltd [16], and the sources cited there).

68. Nevertheless, since in this case the unjust enrichment claim would not arise even under the criteria established in A.S.I.R. Importing v. Forum Accessories [13], we leave for further examination the question of adapting the “additional element” tests established in that judgment to circumstances in which an idea or information constitutes the basis for the unjust enrichment claim.

69. In conclusion, I believe that the appellants are not entitled to any relief with respect to the use made by the respondent of the details in the fixture lists, because these lists are not protected by copyright and because of the absence of a claim based on unjust enrichment. Therefore, if my opinion is accepted, the appeal in all its parts must be denied.

70. The appellants will bear the costs of the appeal and attorneys’ fees for the respondent, in the amount of NIS 30,000.

Justice N. Hendel

I concur.

Justice M. Naor

The respondent, as noted by my colleague Justice Joubran, makes use of the details that appear in the fixture lists. I agree with my colleague’s conclusion that there is no protection for this use, and that the appellants must bear the costs, as proposed by my colleague.

Appeal denied.

28 Adar 5770.

14 March 2010.

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/08/850/084/h02/08084850.h02.pdf

Avneri v. The Knesset (summary)

Case/docket number:

HCJ 5239/11

Date Decided:

Wednesday, April 15, 2015

Decision Type:

Original

Topics:

Basic Law: Freedom of Occupation

Basic Law: Human Dignity and Liberty

Freedom of Expression

Equality Before the Law

Abstract:

This was a petition to strike down the Law for Prevention of Damage to the State of Israel through Boycott (“Boycott Law”). This 2001 law establishes tort liability for, and sets administrative restrictions on, knowingly and publicly publishing calls for a boycott on Israel. The petitioners claimed that the Boycott Law infringes on various constitutional rights, including free expression, equality, and freedom of occupation, and because it does not pass the tests articulated in the limitations clauses of Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation. A divided Court upheld most of the law's provisions.

Voting Justices:

Melcer, Hanan

Primary Author

majority opinion

Author

concurrence

Author

concurrence

Rubinstein, Elyakim

Author

concurrence

Amit, Isaac

Author

concurrence

Danziger, Yoram

Author

dissent

Hendel, Neal

Author

dissent

Boycott case_Abstract.pdf

Author

dissent

Vogelman, Uzi

Author

dissent

Full text of the opinion:

HCJ 5239/11

HCJ 5392/11

HCJ 5549/11

HCJ 2072/12

Avneri v. The Knesset

The Supreme Court sitting as the High Court of Justice

[15 April 2015]

Before President (Emeritus) A. Grunis, President M. Naor, Deputy President A. Rubinstein, and Justices S. Joubran, H. Melcer, Y. Danziger, N. Hendel, U. Fogelman, and Y. Amit

Summary

Translated by Orly Rachmilovitz

This was a petition to strike down the Law for Prevention of Damage to the State of Israel through Boycott, 2001 (“Boycott Law”, “law”). The law establishes tort liability and sets administrative restrictions on anyone who knowingly and publicly publishes calls for a boycott on Israel. The petitioners claimed that the Boycott Law is unconstitutional because it infringes on various constitutional rights, including free expression, equality and freedom of occupation, and because it does not pass the tests articulated in the limitations clauses of Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation.

The High Court of Justice upheld most of the provisions in the law both in terms of the civil tort and the administrative sanction. Regarding the civil tort, the majority decided to dismiss the petitions targeting sections 2(a) and 2(b) while adopting the narrow interpretive position articulated by Justice Melcer. In an extended panel of nine, the Court ruled unanimously to strike down section 2(c) of the Boycott Law, which addresses compensation without proof of damage, for being disproportional, but to dismiss the petitions as far as sections 3 and 4. The majority (written by Justice Melcer, with former President Grunis, current President Naor, Deputy President Rubinstein and Justice Amit joining) decided to dismiss the petitions in terms of sections 2(a) and 2(b), against the dissents by Justice Danziger (with Justice Joubran concurring), by Justice Hendel and by Justice Vogelman.

Justice Melcer found that according to the language of the law, knowingly publishing calls for boycott on Israel could be considered a tort. Additionally, the State may limit participation in tenders by people publishing calls for boycott, and may prevent publishers from receiving different financial benefits, such as government grants, tax exemptions and the like. Therefore most of the sanctions under the Boycott Law target the time of speech and thus the statute infringes upon free expression and is inconsistent with the constitutional right to human dignity. That said, though political speech is at stake, Justice Melcer does not believe this infringement reaches the core of the right to free expression because the limit is relatively narrow and applies only to calls for boycotts against Israel, as defined in the statute, or to anyone who has committed to participate in such a boycott, which is legal action that goes beyond speech.

Additionally, this constitutional right, like other constitutional rights in Israel, is not absolute and may be limited if the infringement passes the tests of the limitation clause. The limitation clause includes four prongs: (1) that limits on constitutional rights are made in statutes or according to statutes; (2) that the limitation fits the values of the State of Israel as a Jewish and democratic state; (3) that the limitation is for a worthy propose; and (4) that the limitation is the least restrictive means necessary. The last prong includes three sub-prongs, which are the rational connection test, the least restrictive means test, and a “narrow” proportionality test. For his analysis here, Justice Melcer relies, among others, on comparative law.

In terms of the first prong, there is no doubt it is met. As for the others, Justice Melcer found that the statute is designed to prevent harm to Israel through economic, cultural or academic boycotts on Israel, anyone else vis-à-vis their relationship to Israel, an agency or institute of the State, or a territory controlled by it. Thus the Boycott Law falls under the “defensive state” doctrine and promotes preservation of the State and its values including equality and liberty. The law then has a worthy purpose and fits the values of the State of Israel as a Jewish and democratic state. Justice Melcer wrote that “calls for a boycott on Israel, as defined in the Boycott Law, do not fall under the classic purposes of free speech.” This approach stems from Justice Melcer’s distinction between speech that is meant to be persuasive and speech that works as a compelling force. In his view, a call for boycott is compelling speech, and therefore should be less protected than other political speech.

However, in terms of the Boycott Law’s proportionality, and applying a narrow interpretive approach, Justice Melcer concluded that sections 2(a), 2(b), 3 and 4 pass the proportionality test. Section 2(c), however, does not because it does not employ the least restrictive means. In this context, Justice Melcer considered the chilling effect doctrine, and suggested reducing the chilling effect through narrow interpretation of what constitutes a tort under section 2(a). Justice Melcer proposed that this “boycott tort” be contingent upon existence of harm and causation between the tort and the harm. Still, merely a potential causation would be insufficient. Awareness of the reasonable probability that the contents of the call and the circumstances of its publication will cause the boycott should be necessary. A further requirement should be that only one directly harmed by the tort may have standing to sue.

This interpretation cures section 2(b) as well. Here, the Court ruled that anyone interested in recovering compensation under section 2(b) would be required to prove – in addition to the element of calling for a boycott – the elements of causing a breach under section 62(A) of the Torts Ordinance, a breach, causation between the call for boycott and the breach, awareness, and monetary harm.

On the other hand, Justice Melcer does not find section 2(c), which deals with compensation that is not contingent upon harm (“punitive damages”) and is not limited in amount, to pass the second sub-test of a least restrictive means. It should therefore be struck down. Under this approach, even if the caller for a boycott has been found liable in torts, the compensation awarded would not exceed the actual harm caused.

As for sections 3-4, Justice Melcer finds that the administrative sanction – limiting participation in tenders and limiting benefits – is only a secondary infringement of free speech. He views these sanctions to be proportional, this in light of the procedure required to place these sanctions and considering the State’s power to withhold benefits from those who use them against it. Justice Melcer equated a boycott on the State and a boycott on a territory. He left the discussion on the constitutionality of sections 3 and 4 and wait until specific petitions against a concrete decision by the Minister of the Treasury based on a concrete set of facts.

Finally, Justice Melcer presents additional approaches supporting his proposal: (1) that an interpretation that maintains a statute’s constitutionality is preferable to striking the statute down; (2) that the Court should show deference to the legislature; (3) the margin of appreciation doctrine; (4) that under a theory of ripeness, arguments by potential parties must be examined beyond the striking down of sections 2(c).

Former President Grunis, President Naor, Deputy President Rubinstein and Justice Amit join Justice Melcer and offer comments.

In his dissent, Justice Danziger found the Boycott Law to materially violate free speech. It is a violation of political speech, which is at the core of the constitutional right to free expression, encompassed in the constitutional right to human dignity. This violation, in his view, does not pass the tests of the limitations clause in section 8 of Basic Law: Human Dignity and Liberty. In his view, the Boycott Law does not pass the third sub-prong of the proportionality test, the “narrow” proportionality prong, because calls for boycotts are clearly within legitimate democratic discourse. He opposes Justice Melcer’s proposal for narrow interpretation as insufficient.

Despite his conclusion, Justice Danziger believes the harsh outcome of striking down the law as unconstitutional may be avoided through interpretation, thus significantly reducing the extent of the Boycott Law’s infringement upon rights and allowing it to pass constitutional muster. He suggest interpreting section 1, which is the gateway to the law, to mean that only a boycott on an “institution” or an “area” vis-à-vis their association with the State and that effectively constitutes a boycott on Israel as a whole would be considered a boycott for the purposes of the statute.

Justice Hendel accepted Justice Melcer’s proposal as legitimate interpretation. However, to him section 2 as a whole should be struck down. Section 2(a) as a tort and section 2(b) in terms of a sufficient justification for causing a breach of contract and section 2(c) in terms of compensation without proof of damage do not pass the third sub-prong of the proportionality test. Therefore, Justice Hendel would strike down the entire section for being disproportional, but for the time being he supports curing sections 3 and 4.

Justice Vogelman joins the interpretation by Justice Danziger, but believes redrafting is more suited relief in this case, and therefore proposes to delete the phrase “an area in its control” from section 1. Still, he believes section 2(c) should be struck down and sections 3 and 4 should be upheld. Additionally, in his view, maintaining the Boycott Law’s validity requires interpreting it to apply only in cases where the singly justification to call for “refraining purposefully from economic, cultural or academic connections with a person or other entity” is that person or entity’s relationship to the State of Israel or any of its institutions.

Justice Joubran finds that section 2(c) should be struck down and that section 1 should be interpreted according to Justice Danziger’s proposal regarding the areas in the State’s control. Additionally, he joins Justices Danziger and Vogelman in distinguishing a call for boycott on a person because of their relationship to the State of Israel or one of its institutions and a call for boycott on a person because of their relationship to an area controlled by the State.

Full opinion:

Carmel Haifa Hospital v. Malul (summary)

Case/docket number:

FH 4693/05

Date Decided:

Sunday, August 29, 2010

Decision Type:

Appellate

Topics:

Justiciability

Negligence

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:

Rivlin, Eliezer

Primary Author

majority opinion

Levy, Edmond E.

majority opinion

Beinisch, Dorit

Author

concurrence

Author

concurrence

Procaccia, Ayala

Author

concurrence

Author

dissent

Carmel Haifa Hospital v. Malul.pdf

Author

dissent

Rubinstein, Elyakim

Author

dissent

Arbel, Edna

Author

dissent

Full text of the opinion:

FH 4693/05 (summary)

1. Carmel Haifa Hospital

2. Clalit Health Fund

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).

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/05/930/046/p19/05046930.p19.pdf

Wallace v. Egged

Case/docket number:

CA 3510/99

Date Decided:

Monday, August 6, 2001

Decision Type:

Appellate

Topics:

Administrative Law

Discretion

http://elyon1.court.gov.il/files/99/100/035/P03/99035100.p03.pdf

Breach of statutory duty

Negligence

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:

Rivlin, Eliezer

Primary Author

majority opinion

Barak, Aharon

majority opinion

Turkel, Jacob

majority opinion

Full text of the opinion:

CA 3510/99

Reuven Wallace

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.

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:

Wallace v. Egged.pdf

Link to original Hebrew text of decision on official ISC website:

Zim Israel Navigation Co. v. Maziar

Case/docket number:

CA 461/62

Date Decided:

Wednesday, June 26, 1963

Decision Type:

Appellate

Topics:

Contracts

Terms

Zim Israel Navigation Co. Ltd. v. Maziar.pdf

Breach of statutory duty

Fault

Abstract:

During a voyage between Marseilles and Haifa, the respondent fell ill, apparently from food she had eaten on board, and for three months after arriving in Israel suffered from a stomach infection. She sued the ship owners and the ship's chef for negligence. The appellants pleaded in defence inter alia the exemption clause relieving them from liability which appeared in the passenger ticket sold to the respondent. The District Court found for the respondent on the ground that res ipsa loquitur and held that the exemption clause was null and void.

Held (per Silberg, J.): As between the English approach which was cautious in annulling exemption clauses outright, balancing public policy against the freedom of contract, and the American approach which struck down such clauses either because of the absence of real voluntary consent to their inclusion or because of public policy, the latter was to be followed. In so doing Israeli law would not be adopting some alien "creature" but applying in the area of law principles of Jewish ethics which prized human life and well-being highly and giving the concept of public policy a specific Jewish content. All this was warranted by local statutory provision which made contracts contrary to public order and morality unlawful. Generally, the matter raised the whole question of standard contracts and called for legislative regulation.

Per Witkon J., it was questionable whether the invalidation of exemption clauses would raise the standard of care expected from the parties concerned in any significant manner. It would be better to impose absolute liability, regardless of fault, and leave it to carriers to cover themselves by insurance. That would also spread the cost among the travelling public at large and ensure that persons injured by some mishap were not left remedyless.

Voting Justices:

Silberg, Moshe

Primary Author

majority opinion

Landau, Moshe

Author

concurrence

Witkon, Alfred

Author

concurrence

Full text of the opinion:

C.A. 461/62

ZIM ISRAEL NAVIGATION CO. LTD. and Another

SHOSHANA (ROSA) MAZIAR

In the Supreme Court sitting as a Court of Civil Appeal

June 26, 1963

Before Silberg J., Landau J. and Witkon J.

Contract - validity of exemption clause in ship-passenger ticket – public policy.

Held. As between the English approach which was cautious in annulling exemption clauses outright, balancing public policy against the freedom of contract, and the American approach which struck down such clauses either because of the absence of real voluntary consent to their inclusion or because of public policy, the latter was to be followed. In so doing Israeli law would not be adopting some alien "creature" but applying in the area of law principles of Jewish ethics which prized human life and well-being highly and giving the concept of public policy a specific Jewish content. All this was warranted by local statutory provision which made contracts contrary to public order and morality unlawful. Generally, the matter raised the whole question of standard contracts and called for legislative regulation.

Israel cases referred to:

(1) C.A. 136/56 - Slavko Fox v. Ilan & Etzioni Ltd. (1957) 11 P.D. 358

(2) C.A. 99/59 - "Shoham" Maritime Services Ltd. v. Ephrayim and Alfreda Feiner (1960) 14 P.D. 1451.

English cases referred to:

(3) Redhead v. Midland Rly Co. (1869) 20 L.T. 628.

(4) Luddit v. Ginger Cove Airways (1947) 1 All E.R. 328: (1947) A.C. 233.

(5) Peek v. Directors etc. of N. Staffordshire Rly. Co. 11 E.R. 1109 (1863).

(6) Thompson v. London, Midland and Scottish Rly. Co. (1930) 1 K.B. 41.

(7) Gibaud v. Great Eastern Rly. Co. (1920) 3 K.B. 689.

(8) Adler v. Dickinson (1954) 3 All E.R. 397;(1955) 1 Q.B. 158.

(9) Beaumont-Thomas v. Blue Star Line Ltd. (1939) 3 All E.R. 127.

(10) Sze Hai Tong Bank Ltd v. Rambler Cycle Co. Ltd. (1959) 3 All E.R. 182; (1959) A.C. 576.

(11) J. Spurting Ltd. v. Bradshaw (1936) 2 All E.R. 121.

(12) Printing etc. Co. v. Sampson (1875) 32 L.T. 354.

American cases referred to:

(13) The Kensington 183 U.S. 263 (1902).

(14) Baltimore & Ohio Southwestern Rly. Co. v. Voigt 176 U.S. 498 (1900).

(15) New York C.R. Co. v. Lockwood 21 L. ed 627.

(16) Oceanic Steam Navigation Co. v. Corcoran 9 F (2nd) 724 (1925).

G. Gordon for the appellant.

P. Maoz for the respondent.

SILBERG J. This is an appeal against a judgment of the Tel Aviv-Yaffo District Court ordering the appellants to pay the respondent a sum of IL 720 together with interest and costs for injuries sustained by her on a voyage from Marseilles to Haifa.

2. It seems that the parties would have reached a settlement but for the baneful fact that the ticket which the respondent bought from the first appellant, a shipping company, contains an exemption clause releasing the company and its employees from all responsibility for injury to the respondent, financial and physical, and the learned judge in an interim judgment declared this clause to be null and void as offending against public order or morality in accordance with section 64(1) of the Ottoman Civil Procedure Law. Hence the keen struggle which Zim has waged against the judgment that requires it to pay the trivial sum above-mentioned.

Let us therefore first examine this important basic question and then, if we find that the exemption clause is in fact unable to exempt, turn to the facts as found by the learned judge regarding the actual negligence of the two appellants.

3. Upon deciphering the faulty Hebrew of the exemption clause, we gather that the company and its employees is not to be responsible for any evil that may befall a passenger, be it death, physical injury or financial loss, even if caused by an act of one of the ship's crew and all the more so if "only" the result of negligence. The company declares in the clause that it does not give "any condition of liability or guarantee" regarding "the religious purity, grade, condition, quality or quantity of any food, beverage or medicine" which the passenger might take. That is to say, not only may the food be bad but even any medicine administered to a passenger to counteract the bad food may also be bad. The clear meaning of the entire clause is that a passenger, affected in his body or property by the adventures of a voyage in one of the company's ships, can have no recourse to any law or court.

The question is whether effect should be given to such a draconian clause.

4. The legal validity of exemption clauses in contracts of carriage has been discussed in the English decisions at length. The result has been that the strictness with which the matter was originally treated has given place to a more lenient approach. The responsibility of a general (as against a private) carrier and in particular a general carrier of goods (as against a carrier of passengers) was at one time very severe indeed; it covered all injurious events apart from those due to force majeure or enemy action: Readhead v. Midland Rly. Co. (3); Luddit v. Ginger Coote Airways (4). The larger companies therefore began to seek for some "medicament" against the ills of statute and case law, and with the assistance of the wise counsel of erudite lawyers introduced into their contracts of carriage and bills of lading exemption clauses, usually in illegible small print. By such puny-lettered clauses a company would take itself out of the statute and free itself as it desired from the legal responsibility which might threaten it from careless or negligent treatment of the object of the contract. The prospective customer stood helpless and impotent in the face of these clauses. Normally he was not even aware of their presence or had not read them at all and even if he had, did not understand them since few can plumb the mysteries of legal terminology. And should it wondrously happen that the clause was plain and he had read and understood it, there was no option but to accept it since the only alternative was to forgo the journey or the consignment of the goods.

5. The attitude of the English courts towards exemption clauses was at first suspicious and cautious. Exactly a hundred years ago in the famous decision of the Court of the Exchequer in Peek v. North Staffordshire Rly. Co. (5) Blackburn J. said that although according to the cases decided between 1832 and 1854 a carrier could make a contract exempting him from all responsibility for damage even if caused by the gross negligence or fraud of his servants, the (Canal Traffic) Act of 1854 changed the situation. The purpose of this Act was to prevent companies "from evading altogether the salutory policy of the common law." ... For this reason he denied validity to an exemption clause which in his opinion was not "just and reasonable". The House of Lords - for various reasons which we need not enter into here - in a majority judgment set aside the decision of the Court of Exchequer but each of the judges supported the view that the conditions of an exemption clause must be just and reasonable, otherwise no benefit can be derived from it.

6. Even some 75 years later echoes are still heard in the courts of the doctrine which continues to disregard justness or reasonableness. Thus for instance in Thompson v. London, Midland and Scottish Rly. Co. (6) Lord Lawrence expressed the view that if an exemption clause in a railway ticket is unreasonable, the passenger would not be bound by it. Sankey J. agreed with this view and announced that if the document referred to "imposed such unreasonable conditions that nobody could contemplate that they exist", the passenger would not be deemed bound by them (at pp. 390, 391).

Sankey J.'s observation gives some little opening to the necessity for reasonableness. An unreasonable condition is a "hidden" undisclosed condition and the exemption it accords does not bind the passenger.

A similar notion, but still not very clear, was developed in Gibaud v. Great Eastern Rly. Co. (7) in which Bray J. said:

"Every contract is voidable by fraud, and if the condition is so irrelevant or extravagant that the party tendering the ticket must have known that the party receiving it could never have intended to be bound by such a condition, then I should say that the assent of the party receiving the ticket was obtained by fraud, and he would not be bound."

But a few lines below he went on to add:

"In my opinion, once it is found that a party has expressly or by his conduct assented to the condition, he is bound by these conditions ... and it is no answer to say that they are unreasonable, unless he can prove that his assent has been obtained by fraud."

This is essentially inconsistent. On the one hand, every unreasonable condition is ipso facto a condition obtained by deceit and fraud. On the other hand, the defence of unreasonableness cannot be raised unless deceit and fraud is proved. I wonder whether these two propositions can exist side by side.

7. But these ideas which combine unreasonableness and "hiddenness" had their effect and ultimately destroyed the whole doctrine of reasonableness. This doctrine presented in such an attractive form by Blackburn J. in the first Peek decision - that the use of unreasonable exemption clauses frustrates and defeats "the salutory policy of the common law" - became increasingly blurred until it vanished without trace. It was so closely swathed that it ceased to breathe. For if the emphasis is upon the cognitive knowledge of the person purchasing a ticket, then formal reference on the face of the ticket, in red ink, to what is contained in one or another of the "small print" conditions is sufficient to evidence the actual or constructive knowledge of the purchaser so as to render the exemption clause valid, whatever its reasonableness or justness.

This is what Lord Denning said in his new and novel judgment in Adler v. Dickson (8). There a ship passenger was seriously injured by falling off the gangway from a height of 16 feet upon reembarking in Trieste. She sued the ship's master and boatswain and not the shipowners themselves, fearing the effect of an exemption clause in her ticket. One of the defences was that if the shipowners' employees were made personally liable to pay damages, the very purpose of the exemption clause would be defeated.

"I pause to say that, if a way round has been found, it would not shock me in the least. I am much more shocked by the extreme width of the exemption clause which exempts the company from all liability whatsoever to the passengers. It exempts the company from liability for any acts, default or negligence of their servants in any circumstances whatsoever, which includes, I suppose, their wilful misconduct. And this exemption is imposed on the passenger by a ticket which is said to constitute a contract but which she has no real opportunity of accepting or rejecting. It is a standard printed form on which the company insist and from which they would not depart, I suppose, in favour of any individual passenger. The effect of it is that, if the passenger is to travel at all, she must travel at her own risk. She is not even given the option of travelling at the company's risk on paying a higher fare. She pays the highest fare, first class, and yet has no remedy against the company for negligence. Nearly one hundred years ago Blackburn J., in a memorable judgment, said that a condition exempting a carrier wholly from liability for the neglect and default of their servants was unreasonable... . I think so too."

These incisive observations of a foremost judge such as Lord Denning would lead us to expect that like Blackburn J. he would also pronounce the exemption clause null and void. A contractual condition, shocking in its wickedness, is not worthy of solemn statutory warrant, for can we truly desire that the curse of "in the place of justice, wickedness exists" (Eccl. 3:16) should befall us? But Lord Denning thought otherwise since he regarded himself bound by the recent English case law in the matter. And so he continued

"Nevertheless, no matter how unreasonable it is , the law permits a carrier by special contract to impose such a condition: see Luddit v. Ginger Coote Airways Ltd. (4): except in those cases where Parliament has intervened to prevent it. Parliament has not so intervened in the case of carriers by sea (emphasis added). The steamship company are, therefore, entitled to the protection of these clauses, as indeed this court held in Beaumont-Thomas v. Blue Star Line Ltd. (9)."

It should be noted that in Luddit the journey was not by sea but by air, but sea and air are the same thing, neither being land. But the very distinction between land travel on the one side and air and sea travel on the other is not very logical. Can we draw any conclusions from the fact that in Blackburn J's time no one dreamed of jet airplanes such as the Boeing 707? It is true that section 7 of the 1854 Act, on which Blackburn J. relied, deals with land carriers, but the idea which that judge culled from it against unreasonable exemption clauses for "... marring the salutory development (that is, the progress) of the common law" is a general moral idea. And if that is so, it applies in equal measure to all forms of carriage, since what difference is there between them? I would almost say that those who follow the Blackburn doctrine are prepared to apply it also to contracts which are not contracts of carriage at all, witness the example of unreasonableness given by Sankey J. in Thompson (6) (at 44).

8. The English judges have apparently felt uncomfortable with a punctilious use of extreme exemption clauses; they shocked Lord Denning and he therefore tried to sweeten the pill by another "help¬mate" by a personal touch and extending appreciably the well-known qualification of fundamental breach: Sze Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd. (10).

In that case a bicycle manufacturer sent its products by steamship to Singapore for sale to its regular customers there. The bill of lading was made out to the order of the seller and indicated the name and address of the prospective buyer. The bill of lading stated that the responsibility of the carrier would cease absolutely after the goods were discharged from the ship. The goods were discharged but the carrier's agents released them not to the seller or to its order under the bill of lading but to the buyer without receiving the price on an indemnity given to the carriers by the buyers' bank. In an action between the bank and the manufacturer arising out of the indemnity the question arose whether the carrier was liable to the manufacturer for the loss in view of the exemption clause in the bill of lading. Lord Denning answered this question in the affirmative. saying

"If the exemption clause, on its true construction, absolved the shipping company from an act such as that, it seems that, by parity of reasoning, they would have been absolved if they had given the goods away to some passer-by or had burnt them or thrown them into the sea. If it had been suggested to the parties that the condition exempted the shipping company in such a case. they would both have said: 'Of course not'. There is, therefore, an implied limitation on the clause, which cuts down the extreme width of it; and, as a matter of construction, their Lordships decline to attribute to it the unreasonable effect contended for. But their Lordships go further. If such an extreme width were given to the exemption clause, it would run counter to the main object and intent of the contract. For the contract, as it seems to their Lordships, has, as one of its main objects, the proper delivery of the goods by the shipping company, 'unto order or his or their assigns', against production of the bill of lading. It would defeat this object entirely if the shipping company was at liberty, at its own will and pleasure, to deliver the goods to somebody else, to someone not entitled at all, without being liable for the consequences. The clause must, therefore, be limited and modified to the extent necessary to enable effect to be given to the main object and intent of the contract."

The great and broadening novelty of this judgment is the construction of "implied conditions" which reduce the excessive scope of the exemption clause (cf. Spurling v. Bradshaw (11) at pp. 124-25).

Without criticising Lord Denning for containing the jungle of wild exemption clauses, it seems to me, however, that it is at least possible to apply the idea to those clauses also which exempt a carrier for bodily injuries, since is it not possible to "infiltrate" here as well some implied condition to the effect that a carrier assumes the obligation to carry the passenger to his desired destination in hale and hearty condition? The loss of a limb at sea defeats the main purpose of a passenger ticket no less than the delivery to another of goods after discharge defeats the main object of the bill of lading.

9. The approach of the American courts co this question is different. American case law is far more audacious. It does not maintain the plaintive conservative view marked by the lip service of moral indignation on the one hand and resignation co the existing situation on the ocher. The prevailing view in American case law has for a very long time been that a clause exempting a carrier from all liability for his own acts and those of his agents and servants is null and void, either because it lacks in truth the element of willing agreement or because it is contrary to public policy.

Appellants' counsel submitted that the laurel for this liberal doctrine rests on the American legislature and not the courts, but it is not so. In the United States things took the opposite course, the case law preceded legislation and section 1 of the Harter Act of 1893 which makes it unlawful for a carrier to insert in a bill of lading any clause exempting him from liability for damage arising out of negligence, fault or omission (and if inserted, makes it null and void) merely put the statutory seal on a very wide¬spread principle already existing.

Moreover, legislation not only did not give birth to the case law but also did not affect or narrow it (except as expressly provided therein), witness the fact that wherever one cannot rely on the Harter Act because it does not regulate the matter - for instance, in connection with personal injuries co passengers - the courts have applied the much broader pre-Harter rule.

"It is settled in the courts of the United States that exemptions limiting carriers from responsibility for the negligence of themselves or their servants are both unjust and unreasonable, and will be deemed as wanting in the element of voluntary assent; and, besides, that such conditions are in conflict with public policy. This doctrine was announced so long ago, and has been so frequently reiterated, that it is elementary... .

True it is that by the act of ... 1893 ... known as the Harter Act ... the general rule just above stated was modified so as to exempt vessels, when engaged in the classes of carriage coming within the terms of the statute, from liability for negligence in certain particulars. But while this statute changed the general rule in cases which the Act embraced, it left such rule in all other cases unimpaired. Indeed, in view of the well-settled nature of the general rule at the time the statute was adopted, it must result that legislative approval was by clear implication given to the general rule as then existing in all cases where it was not changed" (The Kensington (13) at pp. 268-69).

10. Why did American Common law "rebel" against its begetter, English Common law, and what ideological basis was there for this change of position? There were two reasons: first, the exceeding concern of American judges for human life and personal safety; second, the profound abhorrence of the social phenomenon of the grinding down of the small man by the large corporations. These are not vague fancies or empty phrases. The ideas they emody are clearly formulated in a Supreme Court judgment at the outset of the present century: Baltimore & Ohio S.W. Co. v. Voigt (14).

This case concerned a passenger injured in a railway accident. The victim was an express messenger who frequently travelled between Cincinnati and St. Louis as an official of the express company, accompanying express parcels, under special contract between the company and the railway. One of the terms of his employment was that he would waive - and indeed did waive - every claim against the railway for injury sustained by him whilst accompanying parcels. The question was whether he should be regarded as a "passenger" in respect of the general rule that treats as a nullity any condition exempting a carrier from liability for injury caused to passengers. In the course of the hearing, the Court explained the scope and reasons of the general rule.

Because of the inherent importance of the ideas voiced in this judgment, it is proper to cite from it in extenso. Justice Shiras brings to light the differences between the English and American judiciary over exemption clauses of carriers. He mentions, on one side, a number of American judgments (of inferior courts) which propound the nullity of such clauses on account of public policy; and then he cites, on the other side, the dictum of Sir George Jessel, that rejects the public policy of avoiding the clauses in favour of "the paramount public policy" of freedom of contract (Printing ... Co. v. Sampson (12) at p.465). Justice Shiras proceeds to ask what principles the American judges chose in dealing with the cases before them.

"They were mainly two. First, the importance which the law justly attaches to human life and personal safety, and which forbids the relaxation of care in the transportation of passengers which might be occasioned by stipulations relieving the carrier from responsibility. This principle was thus stated by Mr. Justice Bradley in the opinion of the court in the case of New York C.R. Co. v. Lockwood (15):

'In regulating the public establishment of common carriers, the great object of the law was to secure the utmost care and diligence in the performance of their important duties - an object essential to the welfare of every civilized community. Hence the common law rule which charged the common carrier as an insurer. Why charge him as such? Plainly, for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers the highest degree of carefulness and diligence is expressly exacted.'

The second fundamental proposition relied on to nullify contracts to relieve common carriers from liability for losses or injuries caused by their negligence is based on the position of advantage which is possessed by companies exercising the business of common carriers over those who are compelled to deal with them. And again we may properly quote a passage from the opinion in the Lockwood Case as a forcible statement of the situation:

'The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to haggle, or stand out and seek redress in the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading, or sign any paper the carrier presents: often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this or abandon his business... .

If the customer had any real freedom of choice, if he had a reasonable or practicable alternative, and if the employment of the carrier were not a public act, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is almost concentrated in a few powerful corporations, whose position in the body politic enables them to control it.... These circumstances furnish an additional argument, if any were needed, to show that the conditions imposed by common carriers ought not to be adverse (to say the least) to the dictates of public policy and morality.' "

This is indeed a powerfully expressed description - uncommon in any legal literature - of the small man's dependency, standing, as he does, powerless before the mighty machine of profit which crushes him into the dust. Justice Shiras, adopting these ideas, thus formulates accordingly the policy of American case law:

"1. That exemption claimed by carriers must be reasonable and just, otherwise they will be regarded as extorted from the customers by duress of circumstances, and therefore not binding.

2. That all attempts of carriers, by general notices or special contracts, to escape from liability for losses to shippers, or injuries to passengers, resulting from want of care or faithfulness, cannot be regarded as reasonable and just, but as contrary to a sound public policy, and therefore invalid" (at pp. 505-507).

In another judgment, the Circuit Court of Appeals in New York (Oceanic Steam Navigation Co. v. Corcoran (16) at 732) cites with approval Shearman and Redfield on Negligence (6th ed.) vol. 2, para. 505c:

"In the federal courts, and in Connecticut, Indiana, Wisconsin, Iowa, Missouri, Texas, Utah, Virginia, Michigan, Vermont and other states it is held that such a contract (exempting from liability) as to any degree of negligence is void, at least against a passenger giving any compensation for his journey, because it tends to cheapen human life, and to remove the most efficient guarantee which the Common law has given to society against destruction of its members by negligence... . The state has an interest of the highest degree in the preservation of its citizens' lives, and experience demonstrates that there is no practical safeguard against the destruction of those lives by negligence, except in private actions by the persons injured, or their representatives. The protection thus afforded to the individual is therefore of such value to the state that it should not allow it to be waived."

The theme which runs through all these judgments like a scarlet thread is the vital social need of protecting human life and well-being.

11. We have surveyed the English and American case law on the problem before us and seen the basic differences in their moral approach. The question is which path should Israeli judges pursue: are we to follow English case law which in its rigidity holds that the contract must prevail or are we to adopt - at least as regards injury to a person's life or health - the more liberal rule of American case law?

It seems to me that we must take up the American rule because in doing so we are not choosing an alien creature but drawing legal conclusions from fundamentals very deeply rooted in Jewish consciousness.

Should we then be asked how we can legitimize forming our own outlook on a rule which has its source in Turkish legislation, the answer is that whilst the rule that a contract can be set aside for being contrary to public policy is derived from section 64(1) of the Ottoman Civil Procedure Law, what that public policy is must be gathered from our own ethical and cultural conceptions since no other source exists for that.

12. Judaism has always extolled and glorified the high value of human life. The Jewish religion is not a philosophical system of opinions and beliefs but a way of life and a way for living "which if a man do, he shall live by them" (Len. 18:5), "live by them and not die by them" (Yoma 85b). The verses are innumerable which stress the causal nexus between the Torah and life: "keep my commandments and live" (Prov. 4:4): "he is just, he shall surely live" (Ezek. 18:9): "who is the man that desireth life..." (Ps. 34:13) and so on.

Clearly Judaism has not regarded life as the supreme value. There are ends which go beyond it and ideals which exceed it, for the sake of which we should - indeed are commanded - to sacrifice life. Myriads of Jews have given their lives in sanctification of the Holy Name in all places and at all times. But in the ordered framework of social life, according to the priorities of the Jewish religion, life is the most sanctified of possessions ousting any other sacred value, including without a doubt the sanctity of contracts. "There is nothing that comes before the saving of life except only idolatry, incest and bloodshed" (Ketubot 19a); "For (the Sabbath) is holy unto you - it is committed into your hands, not you into its hands" (Yoma 85b).

There is nothing in Jewish ethics which is more abominated than the taking of life. King David was punished for that reason: "But God said unto me, 'Thou shalt not build a house for My name, because thou art a man of war and hast shed blood' " (1 Chron. 28:3). "A Sanhedrin that effects an execution once in seven years is branded a destructive tribunal" (Makot 7a). And also in the prophetic visions of Isaiah and Micah of eternal and universal peace, "nation shall not lift up sword against nation, neither shall they learn war any more" (Isa. 2:4: Micah 4:3) are filled with deep revulsion and aversion to the shedding of blood.

It is not easy to mint from these lofty concepts the coinage of actual law but when the decisive question in arriving at some legal conclusion is a question of philosophical outlook - what is "good" and what is "bad", what promotes the public weal and what impairs it - we may and indeed must draw precisely upon our ancient sources for these alone truly reflect the basic outlook of the entire Jewish people.

The voice that calls from the depths of these sources tells us not to commerce in human life, not to act lightly in safeguarding it, for life is of the highest value, not ours to play with. The sanctity of contracts, or the sanctity of the principle of freedom of contract, has its proper place in the order of things but of far greater sanctity is that of life. No weapon that is formed against it shall prosper, and every tongue that shall arise against it in judgment you shall condemn, to paraphrase Isaiah 54:17.

13. The conclusion to be drawn from all the foregoing with regard to the case before us is that an exemption clause in the ticket which the respondent bought from the appellant company is null and void, as being contrary to public policy in the sense of section 64(1) of the Ottoman Civil Procedure Law. It is superfluous to emphasise that injury to life and injury to health are the same within the contemplation of the concepts that have their part in this context.

I have not overlooked that rule in Jewish law, "if one said, 'put out my eye, cut off my arm, break my leg' ... on the understanding that the other would be exempt, the latter is nevertheless liable" (Baba Kama 92a], but I have not applied it in this judgment because having regard to the reason assigned to it by Maimonides (Hilkhot Hovel uMazik, V, 11) and the Shulhan Arukh Hoshen Mishpat (421:12) I have grave doubts whether it reflects the idea of prejudice to public policy within the meaning of section 64(1) as above.

14. There remains the second and last question of whether the appellants were guilty of negligence in the injury sustained by the respondent. My answer is that they were. The respondent embarked on the "Theodor Herzl" for the journey from France to Israel in good health. The following day after eating the food served to her, she felt unwell, began to vomit and to have diarrhoea. Upon arriving in this country she went down with a stomach infection that lasted some three months. Such physical hurt was caused apparently by the tainted food she had received on board, and the learned judge rightly applied the rule of res ipsa loquitur. Hence, since the appellants did not succeed to rebut the presumption, the company is vicariously liable and the ship's chef (the second appellant) directly liable. The negligence of these two appellants lies in serving tainted food which the respondent ate whilst on board the ship.

In my opinion therefore the appeal should be dismissed.

LANDAU J. I agree.

In Fox v. Ilan & Etzioni (1), dealing with restraint of trade, I drew attention to section 64(1) of the Ottoman Civil Procedure Law and mentioned article 6 of the French Civil Code, from which the provision prohibiting contracts that are contrary to public order and morality is drawn. This statutory provision of ours, as well as article 46 of the Palestine Order in Council, 1922, relieves us from the necessity of turning to English case law regarding public policy. When I went on there to express the opinion that it might be more correct to interpret section 64(1) in accordance with French jurisprudence, I did not mean to say that we should adopt the substance of French law in the matter but that we should define the general boundaries of the concept of public order and fill it with content of our own.

French legal scholars construe the term "public order" in article 6 of the Civil Code in broad general terms, in the spirit of the basic concepts on which the entire legal system is based. This approach is fundamentally different from the conservative approach which treats the categories of public policy as being closed, so that creative power has been taken from the courts and there is nothing to add to what earlier courts up to a century ago laid down in the matter. According to the broad French approach, the source of these concepts lies not only in the realm of positive law but also in basic ideas of justice and morality and in the ever-varying needs of the social and economic system: see D. Lloyd, Public Policy, pp. 117 ff. That does not mean that the courts may intervene as they please in contractual relations according to the private view of the judge of what is good and useful in contemplation of these principles but must faithfully interpret them in the light of the opinion common to the enlightened public of which he is a part.

My honourable friend, Silberg J., uncovered the deep roots of the Jewish view about the sanctity of life and all that stems from that. Such a view is not exclusively ours but is common to all other civilized peoples. This is what Josserand, Cour de Droit Civil Positif Francais (1930) vol. I, para. 475, has to say about contractual conditions which exempt from liability for injury caused by negligence:

"In my opinion the test must be sought in the nature of the injury; a distinction must be made between injury to persons and injury to property.

For injury to persons, it is essential to repair the wrong: physical personality is above private contracts, just as are a person's good name and repute. We cannot confer on another the right to kill us, to injure us or to defame us without punishment."

So also Ripert, Droit Maritime (4th ed.) vol. 2, para. 2004, p. 891, cited by the learned judge:

"It is in fact possible to lay down that public order prohibits also involuntary injury to a person's physical well-being. What is involved is no longer a matter of financial relations between two people. Monetary compensation is but the lesser of two evils and cannot make up for the damage sustained. Hence the prohibition of the cause of such damage needs to be absolute, not to be evaded by any voluntary act."

For the relevant French literature and case law. see also the interesting note by I. Englard in (1961) HaPraklit 219.

I see no need to decide whether moral repugnance to endangering life and health is sufficient to invalidate any condition which a person may voluntarily take upon himself that offends against these values. When, however, a condition of this kind appears in a standard contract, as in the present case, where in fact the passenger has no choice, it must be set aside for being contrary to public order. The reasons for that are convincingly explained by the American judges cited by Silberg J. There is no occasion, in my view, for distinguishing in this matter between serious and minor injury to physical well-being, since every attempt to do so will involve prescribing finely drawn tests, the bounds of which do not lend themselves to clear definition. Nor do I see sufficient reason to distinguish between ordinary and gross negligence, as suggested in the alternative by appellants' counsel.

Nothing in section 55(c)(1) of the Civil Wrongs Ordinance, 1944, is inconsistent with what I have said. That section, which deals with contributory negligence, was taken from section 1(1) of the English Act of 1945 but only preserves the general rule regarding conditions which negative liability in torts; it is not, however, intended to deny the possibility of negating such liability always and in all circumstances by contractual condition.

The conclusion we have reached sits well with the decision of this Court in Shoham v. Feiner (2) which concerned a condition similar to the present one in a claim for repair to damage to property.

Appellants' counsel submitted that to impose liability in tort upon the first appellant as a ship company would lay too heavy a burden upon it since it is not covered against such risks by its general insurance policies. But that is insufficient to justify exempting the appellant from all liability for physical damage caused by it or its employees' negligence. It would be better for the appellant to cover itself against risks such as these and to add the cost of the insurance to the price of the ticket, than to place upon the passenger the concern to insure himself, or leave him without compensation for any physical damage he may sustain.

After writing these lines I read the instructive judgment of my honourable friend, Witkon J., and I wish to express my agreement with his balanced analysis of the various factors affecting the problem before us.

WITKON J. It is with much hesitation that I have also come to the conclusion that no validity attaches to the condition exempting the appellant from all liability for the physical injury which its employees have wrongly occasioned the respondent.

I have no intention of placing in doubt our powers to set such a condition aside. I find strong foundation both in section 64(1) of the Ottoman Civil Procedure Law and in article 46 of the Palestine Order in Council, 1922, for the rule that an Israeli court may certainly invalidate a contractual term which in its opinion conflicts with the public good. Even without such statutory provisions I would not contend that the court must give effect and recognition to every harmful and unfair term to which the parties have agreed. For instance, a condition which exempts from liability for killing or wilful wounding, it is unnecessary to say, no court will recognize. And it is also clear beyond all doubt that in adopting this principle - whether from England or from France or as axiomatic of our very judicial functions - we are not dependent upon English or French scholars in deciding what in our contemplation is valid and what invalid from the viewpoint of the public welfare. A condition which is valid in England - will not for that reason alone presumptively be valid with us. As my honourable friend, Landau J., said, we must give our own content to the framework of public order.

When, however, we come to weigh the considerations for or against invalidating any given condition, we immediately become aware that we are faced with a problem that is a cause of concern the world over. The American courts - so my honourable friend, Silberg J., demonstrated in his comprehensive survey - have annulled such a condition and we learn from Landau J. that French legal scholars have trod the same path. In England as well people are in fact unhappy about conditions in standard contracts which exempt a carrier in a monopoly position from all liability for the physical injuries of his passengers. The sharp complaints voiced by Lord Denning in Adler v. Dickson (8) bear witness to that, and this case is also the source of the rule that the condition will not hold in the event of a breach going to the foundations of a contract. Thus we see that this flinching revulsion is universal, as are also the considerations which demand invalidation of the condition. The starting point of those who would set it aside is undoubtedly their concern for the security of the person who is in need of a public service, that neither his life nor his health should be at the whim of the carrier. Further, such a person also merits protection of the law against exploitation of his weakness, since the two parties are not in the same bargaining position.

The first of these considerations - the sanctity of life - is not disputed and I would say that it is so well-known that it does not call for evidence. Everywhere, irrespective of religion or nationality, human life is regarded as a treasured possession to be guarded at all costs. It is a universal heritage, certainly among the Jewish people, as was shown by Silberg J. in his judgment. The trouble is, however, that this supreme consideration is not the only one which we must bear in mind. Were it possible to be guided solely by the concept which was so warmly expressed by Silberg J., we would arrive at some far-reaching conclusions which he himself does not support. We would have to annul every condition which limits a person's liability to compensate another for negligent physical injury irrespective of the circumstances in which the condition was stipulated, of the party making it and the mutual relationship of the parties concerned. The private carrier - as distinct from the public carrier - indeed everyone who agrees to render a service during which he may err and cause bodily harm to the other, would be prevented from agreeing with the latter to limit his liability. Such a result would certainly not meet with approval. Hence to arrive at a balanced outcome we must weigh all the considerations that pertain to the matter. As in most problems of law and of life in general, it is not the choice between the good and the bad which makes decision difficult. The difficulty lies in the choice between different considerations all of which are good and worthy of attention but inconsistent among themselves and in respect of which we must determine an order of priority. In the present case I have not found the task a simple one.

Doubts over whether it is indeed desirable to annul the given condition stem in the first place from the leading rule that a person has full contractual freedom to ensure rights for himself and to waive rights, all as he pleases. In our own times, this rule may have lost some of its pre¬eminence but in my opinion, subject to certain limitations, this freedom is still a treasured possession and a necessary institution in the life of society. Moreover, if interference with freedom of contract is effected not by way of legislation but judicially, confidence in the law will be shaken. For the rule is that stipulation is permitted in civil law and denial thereof is adverse to the sanctity of contracts.

For that reason, even if we were to say that every exemption clause of the kind in question is likely to render life and health a matter of free-for-all - and I do not join in this extreme view - there is in my opinion still no room to annul, because only of "the sanctity of life", every such condition contractually agreed upon by two individuals in the same position and of the same mind. To annul it, another factor is required, and indeed we are told that a contract between equal parties is unlike one between a powerful public or quasi-public body and a private person - "the small man" - who is in need of some essential commodity or service and is compelled to yield. Here occurs the well-known problem of standard contracts which will in the future occupy the attention also of our legislature. But here also I have reservations and I would not hasten to condemn all standard contracts. They appear to me called for by the realities of life, the outcome of the trend to standardisation that prevails in all areas of the economy. At all events, the courts do not generally incline to assume power to set aside such contracts when it is proved to their satisfaction that the conditions and fiats were brought to the notice of the customer. If need exists to control these contracts, the view is that it is a matter for the legislature (see per Cohn J. in Shoham v. Feiner (2) at p. 1454). Only thus can a supplier submit the reasonableness of his conditions to review, before contracting with his customers; and the proposer of the bill now before the Knesset in the matter has done well to choose this course. Here I wish to sum up by saying that if it is possible at all to regard the case before us as one in which the court may annul a condition agreed upon by the parties, that can only be because of the conjunction of two factors: firstly the contents of the condition are undersirable ethically and socially, and secondly it was stipulated in a contract in which the party at the disadvantage was not free to contest it. In this manner we have restricted the conclusion we have reached in the present case to standard contracts.

Even the combination of these considerations still does not meet all my doubts. We must ask ourselves what is the reason for, what is the significance of, setting aside the exemption clause. Do we thus in truth enhance the degree of care taken by the appellant and all its employees and agents? I am not at all sure of that. The presumption is that a person will not treat another's life lightly. I would think that a person is careful or careless with another (and even with himself) according to his nature, his temperament and his ethical and intellectual standards, but the knowledge that he has to pay - or not to pay - damages for his negligent acts (in contrast to anticipating criminal conviction) has almost no effect in reinforcing - or weakening - his standard of care. If that is so in the case of the direct liability of a person, it is all the more so in the case of his servants and agents. It is common today to treat with doubt every principle of fault as a basis of liability in damages for injury arising out of the use of automobiles. Better, it is said, to proceed on the principle of absolute liability and the reason is that it is not to be presumed that the tortfeasor or victim will be less careful if he knows that in any case the victim will receive compensation, whether the injury was caused by the negligence of the one or of the other or without the negligence of either of them. Just as the expectation of having to pay damages even without fault by the tortfeasor does not render him more indifferent to another's life and health, it may also be assumed that the expectation of being exempted in the event of negligence will not increase his indifference. It is not therefore to be said that annulling the exemption will self-evidently encourage carefulness where before there was scorn, but the result - here as where absolute liability is imposed on car owners

- will be to spread the risk over the whole population by way of insurance.

That in effect is the problem before us. What is displeasing in a case such as the present is that a person injured through negligence is without financial remedy, for remedy is denied him in consequence of the contractual condition which he accepted without having any choice in the matter. If we say that we cannot tolerate such a situation and that the exemption is not to be given effect, it is as if we said that the carrier must insure himself against this risk, and doubtlessly he will effect such insurance at the expense of the passenger by increasing the cost of the service. Theoretically, such compulsory insurance could also be imposed directly on the passenger, but clearly compulsory insurance effected by the carrier is more practical and reasonable. Nevertheless, is it in fact desirable and just to spread the risk of the individual among all passengers? That also will increase prices of commodities and services. One or other passenger may say to us, perhaps justly, that he wants no favours and is prepared to take the risk without paying any supplement to his fare. I can imagine many services, both in the transport area and in other areas, where it would be justified for the supplier to exempt himself from liability for negligent injury to customers and reasonable on the part of the customer to exempt him from this liability and take the risk without any insurance cover. Perhaps our case is such a case.

My learned friends think that in point of public policy it would be better to compel the carrier to bear liability and ensure that the injured passenger receives her compensation. I am ready to join in this conclusion - even if not without hesitation - out of the consideration that what is involved is an essential mass service generally carried out without mishap. The straits of the injured individual, left without remedy, may be hard and in the result offend against the feeling of justice. On the other hand to spread the risk among all passengers cannot involve very large expenditure and the price for the service need not go up appreciably. If the "decree" we issue against carriers and passengers generally is that they shall not abandon the injured individual to his plight, they can bear up under it. Accordingly on balance of the considerations it seems to me also that the law should incline in favour of the respondent. In the result I also agree to dismiss the appeal.

Appeal dismissed

Judgment given on June 26, 1963.

Full opinion:

Tzadik v. Haaretz Newspaper Publishing Ltd.

Case/docket number:

LCA 6902/06

Date Decided:

Wednesday, August 13, 2008

Decision Type:

Appellate

Topics:

Voting Justices:

Primary Author

majority opinion

Elon, Menachem

majority opinion